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. Subsections 486(3) and 486(5) of the Criminal Code provide:

486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) 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

(iii) 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; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).

(5) Every person who fails to comply with an order made under subsection (3) or (4.1) 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; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.

DATE: 20040604

DOCKET: C40809

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) – and –

S.N.D. (Respondent)

BEFORE:

LABROSSE, GOUDGE and MacPHERSON JJ.A.

COUNSEL:

Grace Choi

for the appellant

Nathan Gotlieb

for the respondent

HEARD AND ENDORSED:

June 3, 2004

On appeal from the sentence imposed by Justice P. Ted Matlow on September 25, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] We are conscious of the seriousness of the offence which obviously caused great trauma to the victim and his parents.

[2] The respondent has lived through a horrific childhood. He was 18 years of age at the time of the offence. He has no criminal record.

[3] In these circumstances, the 18 months conditional sentence and 45 days of pre‑trial detention sufficiently reflects the principles of deterrence and denunciation and is not demonstrably unfit.

[4] There is no need to impose a curfew. The rules of Covenant House, including its curfew, are appropriate.

[5] The trial judge was in error in not ordering a DNA analysis. The appeal is allowed only in that respect.

[6] A DNA order is to issue in terms of draft order.