



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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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. Raco, 2011 ONCA 60



DATE: 20110121



DOCKET: C51722



COURT OF APPEAL FOR ONTARIO



Rosenberg, Goudge and Armstrong JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Antonio Raco



Appellant



Frank Miller, for the appellant



Dena Bonnet, for the respondent



Heard and released orally: January 19, 2011



On appeal from the conviction entered by
          Justice S. Rogin of the Superior Court of Justice on October 21, 2009 and the
          sentence imposed by Justice Rogin on February 8, 2010.



ENDORSEMENT



[1]

While the appellant raised two grounds of appeal, the only issue pursued
    in oral argument was whether the trial judge misused the appellants failure to
    testify contrary to the holding of the Supreme Court of Canada in
R. v.
    Noble
, [1994] 1 S.C.R. 874.

[2]

The trial judge stated that he was entitled to comment on the fact that the
    accused did not testify but always bearing in mind the heavy onus on the Crown
    to prove each count beyond a reasonable doubt.  He also recognized that he
    could not use the accuseds failure to testify to transform what might be a
    weak Crown case into a strong one.

[3]

If the trial judge used the fact that the appellant did not testify as evidence
    to bolster the Crowns case, this would have been an error.  However, we are
    not persuaded that he did so.  Rather, we think he simply used the fact the
    appellant did not testify as meaning that there was no other explanation for
    what was otherwise an overwhelming case in respect of all the counts except
    count number 2 where the trial judge found that, while the offence probably
    occurred, he was not satisfied beyond a reasonable doubt.  Nor did he use the
    language of an adverse inference that was condemned in
Noble
.

[4]

That said, we emphasize that it is very dangerous for a trial judge to
    refer to the failure to testify except in the precise way referred to by
    Sopinka J. in
Noble
at paragraphs 77 and 82.

[5]

Accordingly, the appeal from conviction is dismissed.  The appeal from
    sentence is dismissed as abandoned.

M.
    Rosenberg J.A.

S.T.
    Goudge J.A.

Robert
    P. Armstrong J.A.


