WARNING

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

CITATION: R. v. Comeau, 2011 ONCA 382

DATE: 20110516

DOCKET: C49888

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ramond Comeau

Appellant

Jill Makepeace, for the appellant

Gavin MacDonald, for the respondent

Heard: May 13, 2011

On appeal from the sentence imposed on April 11, 2007, by Justice G. Mark Hornblower of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant pleaded guilty to 14 charges relating to 10 residential break and enters, with a sexual element to many of the incidents. He was declared a long-term offender and sentenced to 14 years’ imprisonment in addition to three years credit for pre-sentence custody, for a total sentence of 17 years. The sentencing judge ordered a period of 8.5 years of parole ineligibility, on the basis that parole should be delayed until half of the overall sentence had been served.

[2] The only issue on appeal is the trial judge’s calculation of the length of the parole ineligibility period.

[3] The appellant argues that the trial judge erred by (1) including the pre-sentence custody in the calculation and (2) including an unlisted offence in the calculation. The Crown agrees with the appellant on both grounds.

[4] The offences in question are heinous. Given the circumstances of the offences and the offender, the length of the sentence is fit and a delayed period of parole eligibility was fully justified. However, in light of the errors identified by the appellant and with which the Crown agrees, the appeal is allowed. The period of parole ineligibility is decreased to 6 years and 9 months.