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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court of Appeal for Ontario

Citation: R. v. Stone, 2012 ONCA 500

Date: 20120711

Docket: C52422

Laskin, Cronk and Hoy JJ.A.

Between

Her Majesty the Queen

Respondent

and

Jordan Stone

Appellant

Counsel:

Kristin Bailey, for the appellant

Grace Choi, for the respondent

Heard and released orally: July 6, 2012

On appeal from the conviction entered on December 3, 2009 and the sentence imposed on February 12, 2010 by Justice James R.H. Turnbull of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] On his conviction appeal, the appellant challenges various aspects of the trial judge’s charge and his failure to exclude certain evidence. The appellant submits that the trial judge failed to properly instruct the jury on the identification evidence and failed to caution the jury on the recognition evidence of Officer Lazou. He also submits that the trial judge erred by permitting inadmissible hearsay evidence to be introduced before the jury.

[2] The appellant fairly acknowledges that his DNA evidence on the iced tea bottle and the glove implicate him in all of the offences other than the sexual assault. However, he submits that the trial judge’s errors affected the conviction for sexual assault.

[3] We do not accept this submission. Even if the trial judge made any of the errors alleged by the appellant, a matter we need not decide, any errors were inconsequential not only on the robbery, break and enter, and related convictions, but also on the sexual assault conviction.

[4] The basic position of the defence was that the home invasion was committed by Mitropoulos and Coates, not by Mitropoulos and the appellant. There was no suggestion that three people entered the victim’s home. Yet the appellant’s DNA both on the iced tea bottle found in the house and, together with C.C.’s DNA, on the glove, show that it was the appellant, not Coates, who entered the home along with Mitropoulos.

[5] Both J.C. and C.C. identified the perpetrator of the sexual assault as the short and stockier of the two individuals in the home. That individual could only have been the appellant.

[6] Accordingly, the jury’s finding of guilt on the charge of sexual assault is unimpeachable.

[7] On the sentence appeal, we are satisfied that the sentence was within the range and fit. The trial judge gave thorough reasons and we see no error in those reasons.

[8] Accordingly, although leave to appeal sentence is granted, the sentence appeal is dismissed.

“John Laskin J.A.”

“E.A. Cronk J.A.”

“Alexandra Hoy J.A.”