W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.
DATE: 20020218 DOCKET: C36749
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– JASON THORNHILL (Appellant)
BEFORE:
McMURTRY C.J.O., CATZMAN and ABELLA JJ.A.
COUNSEL:
Robert B.McGee, Q.C., for the appellant
Eric H. Siebenmorgen, for the respondent
HEARD:
February 12, 2002
RELEASED ORALLY:
February 12, 2002
On appeal from the judgment of Justice Robert N. Weekes, sitting as a summary conviction appeal court judge, affirming the conviction imposed by Justice Ronald A. Minard dated October 29, 1999 and the sentence imposed by Justice Minard dated January 28, 2000.
E N D O R S E M E N T
[1] As the summary conviction appeal court judge observed, Justice Lampkin gave careful reasons in dismissing the appellant’s application for a stay by reason of the failure to try him within a reasonable time, considered the relevant legal principles and reached conclusions that were not unreasonable. We are not persuaded that the summary conviction appeal court judge made any error in determining that the decision of Justice Lampkin disclosed no error. We would not give effect to this ground of appeal.
[2] We did not call upon the Crown to respond to Mr. McGee’s submissions with respect to the appellant’s conviction.
[3] However, with respect to sentence, we note that the sentencing judge did not appear to have the benefit of the decision of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, which cautioned against the error of fettering a sentencing judge’s discretion by rejecting the possibility of imposing a conditional sentence in response to a particular type of offence. The sentencing judge in this case appears to have fallen into this error, thereby overemphasizing the principles of general deterrence and denunciation. In his reasons affirming the sentencing judge, the summary conviction appeal court judge did not address this error.
[4] In these circumstances, we would vary the appellant’s sentence to be served in the community as a conditional sentence for a period of twelve months. The conditions will be those set forth in the form agreed between counsel and filed with the court.
[5] Leave to appeal is granted, the appeal against conviction is dismissed, the appeal against sentence is allowed and the sentence is varied as indicated.
Signed: “R.R. McMurtry C.J.O.”
“M.A. Catzman J.A.”
“R.S. Abella J.A.”