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:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) 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 subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) 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) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
CITATION: R. v. C.N., 2007 ONCA 376
DATE: 20070516
DOCKET: C45829
COURT OF APPEAL FOR ONTARIO
LASKIN, LANG and LAFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
C.N.
Appellant
Vincenzo Rondinelli and Crystal E. Tomusiak for the Appellant
Daniel Guttman for the Respondent
Heard: May 14, 2007
On appeal from the conviction entered on June 30, 2006, and the sentence imposed on July 17, 2006, by justice K.A. Langdon of the Superior Court of Justice, sitting without a jury.
APPEAL BOOK ENDORSEMENT
[1] We did not call on the Crown on the conviction appeal. We are not persuaded that the trial judge reversed the burden of proof.
[2] On the sentence appeal, we acknowledge that this was a brutal assault and sexual assault over a long period of time, and that it had a serious impact on the victim. However, we think that the trial judge erred in imposing a sentence at or near the top of the range – four years – in the light of the circumstances of this offender. He is relatively young; he has no criminal record; according to the psychiatric report he poses virtually no risk of re-offending; he has made progress in school and employment; and he is in a committed relationship and has a young child. Taking into account all these considerations, in our view, an appropriate sentence is three years.
[3] We see no basis to interfere with the SOIRA registration. The Code presumptively requires registration. The appellant led no evidence to displace that presumption.
[4] Finally, we agree with the Crown that Kienapple does not apply to theses offences because they are not grounded in the same wrongful act.
[5] Accordingly, the conviction appeal is dismissed. Leave to appeal sentence is granted and the appellant’s sentence is reduced from four years to three years.