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. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
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. 205, c. 32, s. 15.
CITATION: R. v. Kavanagh, 2009 ONCA 759
DATE: 20091102
DOCKET: C48005
COURT OF APPEAL FOR ONTARIO
Feldman, Blair and Watt JJ.A
BETWEEN:
Her Majesty the Queen
Respondent
and
Brendan John Kavanagh
Appellant
Stephen F. Gehl, for the appellant
Dena Bonnet, for the respondent
Heard and released orally: October 29, 2009
On appeal from conviction by Justice Robert Reilly of the Superior Court of Justice dated May 15, 2007 and sentence imposed dated July 23, 2007.
ENDORSEMENT
[1] The appellant appeals his conviction for sexual assault with a weapon, unlawful confinement and robbery and his sentence of 9 years after credit of 2 years for pre-trial custody of 14 months.
[2] The appellant referred to two grounds of appeal from conviction in oral argument.
[3] The first is unreasonable verdict based on possible discrepancies in the store video tape and the complainant’s view of events. We would not give effect to this ground of appeal. The jury saw the video and heard all of the evidence. It was open to the jury to consider the evidence as a whole and to come to the conclusion that it did.
[4] The second ground is that although the trial judge’s conduct of the trial was otherwise polite and appropriate, the trial judge intervened in the cross-examination of the appellant, which the appellant says would have given the jury the impression that he was aligned with the prosecution.
[5] We are satisfied that to the extent that the intervention may have been more extensive than called for in the circumstances, any problem was adequately addressed by the trial judge by permitting both counsel to ask any follow up questions and by his specific instructions to the jury explaining that the purpose of his questions was to clear up some confusion he had on an issue and for no other purpose.
[6] Regarding the sentence appeal, the Crown concedes, and we agree, that the trial judge made an error by referring to the conduct of the defence as an aggravating factor for sentence and that this court should therefore consider and decide the appropriate sentence in this case.
[7] This was a brutal sexual assault on a vulnerable woman working at night in a convenience store. The appellant came into the store, waited until there were no other customers, then locked the door and threatened the complainant that he would kill her with the knife he claimed to have in his back pocket. He forced her into the back room and forced her to perform oral sex, then penetrated her vaginally without using a condom. The offence was premeditated and brutal on a totally vulnerable victim who suffered significant long-term consequences in her personal life, including estrangement from her family and ongoing fear. The appellant had a criminal record that included a domestic assault.
[8] The Crown at trial asked for 10 years minus time served. The appeal Crown asked this court to impose the same sentence as the trial judge did, 11 years minus 2 years for pre-trial custody (9 years). The appellant asks for 8 years minus pre-trial custody (6 years).
[9] In our view, given the serious aggravating factors and the total lack of mitigating factors, the appropriate total sentence is 10 years minus 2 years for pre-trial custody or 8 years.
[10] Therefore the appeal against conviction is dismissed.
[11] Leave to appeal sentence is granted, the appeal is allowed and the sentence is reduced to 10 years minus 2 years pre-trial custody or 8 years.
Signed: “K. Feldman J.A.”
“R. A. Blair J.A.”
“David Watt J.A.”