


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    the complainant or a witness shall not be published in any document or broadcast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

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 judges 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 judges 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 victims home.  Yet the
    appellants 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 jurys 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.


