



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), (2.1), (2.2), (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    that could identify the victim or a witness shall not be published in any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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(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 victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. J.Y., 2019 ONCA 126

DATE: 20190220

DOCKET: C64696

MacPherson, Sharpe and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.Y.

Appellant

Ian Smith as duty counsel

Andreea Baiasu, for the respondent

Heard: February 13, 2019

On appeal from the conviction entered on October 10, 2017
    and the sentence imposed on November 24, 2017 by Justice Paul Rivard of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant raises a single ground of appeal from his sentence. The
    trial judge imposed a two year sentence on court 5 for sexual interference and
    a two year consecutive sentence on count 6 for sexual assault. Both counts
    involved the same complainant and the same dates. The appellant submits that
    one of the counts should have been stayed on the
Kienapple
principle
    or, alternatively that the sentences should be concurrent. The Crown responds
    that two incidents separated by several weeks were proven. Both involved the
    appellant performing oral sex on the young complainant. The Crown argues that
    we should treat one count as relating to the first incident and the second
    count as relating to the second incident.

[2]

We are unable to accept the Crowns submission. As we read this record,
    counts 5 and 6 were alternative ways of pleading the occurrence of both
    incidents. The information did not allege that one incident was sexual assault
    and the other incident was sexual interference. By alleging the incidents had
    taken place between April 1, 2015 and August 31, 2015, both counts embraced
    both incidents. When the counts are read together the case pleaded against the
    appellant was that whatever had happened between those dates was
either
sexual interference
or
sexual assault, not that one count alleged one incident and the other count
    alleged a different incident.

[3]

Accordingly, we agree with the appellant that count 6 should be stayed
    resulting in a two year reduction of his sentence. Victim surcharge if any set
    aside.

"J.C. MacPherson J.A."
"Robert J. Sharpe J.A."
"M. Tulloch J.A."


