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complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.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: 20050308

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.

E N D O R S E M E N T

[1] The appellant appeals his conviction for sexual assault following a jury trial presided over by Brockenshire J. He also seeks leave to appeal his sentence of nine months followed by two years probation.

[2] Although the appellant should have been present on the two occasions in issue, we are satisfied that he suffered no prejudice as a result of his absence. In our view, the respondent has satisfied the burden of establishing that, notwithstanding the errors made by the trial judge, no substantial wrong or miscarriage of justice was occasioned as the appellant sustained no prejudice as a result of his brief absence from the courtroom and from the pre-charge conference. Concerning the second ground of appeal, the record does not support the appellant’s contention that he did not have a fair trial because the jury, which took nine hours to reach its verdict, rushed its deliberations so that it would not have to deliberate during a holiday weekend. On the record before us, we are satisfied that the appellant received a fair trial. Consequently, in the circumstances of this case it is appropriate to apply the proviso and to dismiss the appeal from conviction.

[3] With respect to sentence, we are prepared to grant leave to appeal. The trial judge sentenced the appellant to nine months, which exceeded the term recommend by the Crown. The trial judge recommended that the sentence be served in the Ontario Correctional Institute where he hoped that the appellant would receive appropriate sexual offender treatment. He assumed that a sentence of nine months was required to ensure that treatment was obtained. However, the trial judge had no evidence as to whether such treatment was available at the Ontario Correctional Institute and, if so, the length of a sentence necessary to provide effective treatment. In our view, exceeding the Crown’s submission without an adequate evidential foundation constituted an error in principle. As well, no evidence was provided to this court with respect to the nature of treatment, if any, available at the Ontario Correctional Institute.

[4] In our view, the term of four to six months imprisonment recommended by the Crown was reasonable and should have been given effect by the trial judge. However, a conditional sentence is in our view inappropriate as this was the second offence of sexual assault upon a young girl committed by the appellant. The appellant served one month of the sentence subsequent to conviction. We would allow the sentence appeal and vary the sentence to one of four months, one month of which has been served. In addition, the appellant will be on probation for two years on the statutory terms. An additional term of probation is that he shall attend for treatment at the Windsor Sex Offenders Treatment Program, or such program as will be arranged by his probation officer.

“S. Borins J.A.”

“Robert J. Sharpe J.A.”

“Robert P. Armstrong J.A.”```