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complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.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.

DATE: 20050603

DOCKET: C41158

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – J. K. F. (Appellant)

BEFORE:

BORINS, SHARPE and ARMSTRONG JJ.A.

COUNSEL:

Kenneth S. Marley

for the appellant

Christine Tier

for the respondent

HEARD & RELEASED ORALLY:

February 25, 2005

On appeal from the conviction entered on October 10, 2003 and the sentence imposed on December 15, 2003 by Justice John H. Brockenshire of the Superior Court of Justice, sitting with a jury.

S U P P L E M E N T A R Y E N D O R S E M E N T

[1] In our endorsement released March 8, 2005, we allowed an appeal from sentence and varied the sentence of one of four months. In addition, we ordered that the appellant be on probation for two years on the statutory conditions and the further condition that he attend for treatment at the Windsor Sex Offenders Treatment Program, or such program to be arranged by his probation officer.

[2] We have been informed that we did not include in the probation order the following conditions that the trial judge had included in the original probation order:

▪ not to associate with the victim, T.B. or any member of her family;

▪ not to be in the company or presence of anybody under the age of 16 unless with a responsible adult;

▪ report to a probation officer initially, and as often thereafter as the probation officer directs.

[3] At the hearing of the appeal, our attention was not directed to the conditions of the original probation order and its conditions. Had we been aware of the conditions, they would have been included in the probation order that we issued. We had no intention to omit the conditions. Counsel for the appellant and the respondent agree that it is appropriate that we vary the probation order to reflect the conditions of the original order.

[4] Consequently, we would vary the probation order that we issued on March 8, 2005 by adding the above three conditions.

“S. Borins J.A.”

“Robert J. Sharpe J.A.”

“Robert P. Armstrong J.A.”