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complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.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: 20050118
DOCKET: C42583
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN ((Appellant) – and M. K. (Respondent)
BEFORE:
MOLDAVER, GILLESE and JURIANSZ JJ.A.
COUNSEL:
Andrew Cappell
for the appellant
Robert Sheppard
for the respondent
HEARD & ENDORSED:
January 18, 2005
On appeal from sentence imposed by Justice Roland J. Haines of the Superior Court of Justice dated October 6, 2004.
A P P E A L B O O K E N D O R S E M E N T
[1] In our view, the sentence of six months imprisonment plus one year probation imposed by the trial judge was woefully inadequate. This was a case of forced sexual intercourse by a twenty-four year old man on a vulnerable seventeen-year-old complainant. The respondent persisted in the sexual assault despite knowing, from the night before, that the complainant was not interested in having sexual relations with him and despite the complainant’s attempts to resist the respondent, including her verbal protestations, her crying and her efforts to physically remove him. The complainant at the time of the offence was particularly vulnerable and the humiliation and degradation she suffered was no doubt exacerbated by the presence of the respondent’s friend Y throughout the event.
[2] In short, this was a serious crime and it called for a substantial period of incarceration. While a penitentiary term would not have been inappropriate, in all of the circumstances, including the respondent’s prior unblemished background and the fact that he is presently incarcerated in the provincial system, we are of the view that a fit sentence is one of two years less a day plus probation for one year on the terms and conditions imposed by the trial judge.
[3] Accordingly, leave to appeal sentence is granted and the sentence is increased to two years less one day. In all other respects, the sentence imposed by the trial judge shall remain the same.