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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
R. v. Kluke, 2008 ONCA 181
CITATION: R. v. Kluke, 2008 ONCA 181
DATE: 20080312
DOCKET: C47204
COURT OF APPEAL FOR ONTARIO
SHARPE, ARMSTRONG and WATT JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
HERBERT KLUKE
Appellant
Counsel:
Giuseppe Cipriano for the appellant
Greg Skerkowski for the respondent
Heard & released orally: March 11, 2008
On appeal from the order of Justice N. Jane Wilson of the Ontario Court of Justice dated May 30, 2007.
ENDORSEMENT
[1] The appellant is a seventy-four old man who pleaded guilty to three counts of indecent assault arising out of acts of unwanted sexual touching during the 1960s and 70s. The sentencing judge accepted a joint submission and imposed a conditional sentence of two years less one day followed by two years probation.
[2] The appellant appeals a subsequent order made pursuant to s. 742.6(9) suspending the conditional sentence order and directing that the appellant serve twenty-one days of imprisonment for breach of a condition that he not consume alcohol.
[3] The appellant is of ill-health and has suffered memory loss. He is dependent upon his wife for personal care and medication. Given the appellant’s age, state of health and psychiatric reports, he does not pose a risk of re-offending. He has filed fresh evidence on appeal to the effect that since the date of the order under appeal, his health has deteriorated further and he has been diagnosed with bladder cancer. He served nine days under the sentencing order and a further day as he surrendered for the purpose of this appeal.
[4] In light of the appellant’s age, the time served and the fresh evidence regarding his worsening medical condition, the interests of justice would not be served by requiring him to serve any additional period in custody.
[5] Accordingly, leave to appeal is granted. The appeal is allowed and the order is varied to time served.
“Robert J. Sharpe J.A.”
“R.P. Armstrong J.A.”
“David Watt J.A.”