WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court of Appeal for Ontario
Panel: MacPherson, Sharpe and Tulloch JJ.A.
Between
Her Majesty the Queen Respondent
and
J.Y. Appellant
Counsel:
- Ian Smith, as duty counsel for the appellant
- Andreea Baiasu, for the respondent
Heard: February 13, 2019
On appeal from: The conviction entered on October 10, 2017 and the sentence imposed on November 24, 2017 by Justice Paul Rivard of the Superior Court of Justice.
Reasons for Decision
1The appellant raises a single ground of appeal from his sentence. The trial judge imposed a two year sentence on count 5 for sexual interference and a two year consecutive sentence on count 6 for sexual assault. Both counts involved the same complainant and the same dates. The appellant submits that one of the counts should have been stayed on the Kienapple principle or, alternatively that the sentences should be concurrent. The Crown responds that two incidents separated by several weeks were proven. Both involved the appellant performing oral sex on the young complainant. The Crown argues that we should treat one count as relating to the first incident and the second count as relating to the second incident.
2We are unable to accept the Crown's submission. As we read this record, counts 5 and 6 were alternative ways of pleading the occurrence of both incidents. The information did not allege that one incident was sexual assault and the other incident was sexual interference. By alleging the incidents had taken place between April 1, 2015 and August 31, 2015, both counts embraced both incidents. When the counts are read together the case pleaded against the appellant was that whatever had happened between those dates was either sexual interference or sexual assault, not that one count alleged one incident and the other count alleged a different incident.
3Accordingly, we agree with the appellant that count 6 should be stayed resulting in a two year reduction of his sentence. Victim surcharge if any set aside.
J.C. MacPherson J.A.
Robert J. Sharpe J.A.
M. Tulloch J.A.