DATE: 20001128

DOCKET: C34328

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) - and -

J. G. (Appellant)

BEFORE: MOLDAVER, GOUDGE and SIMMONS JJ.A.

COUNSEL: David Price

For the appellant

Tina Yuen

For the respondent

HEARD: November 16, 2000

On appeal from the order of Justice James M. Donnelly on May 5, 2000, dismissing the appeal from the dispositions made by Justice Hunter on November 2, 1999.

E N D O R S E M E N T

[1] Given the nature of the offence and the background of the offender, we are not persuaded that the trial judge erred in imposing a conditional discharge and probation as opposed to an absolute discharge; nor are we persuaded that the trial judge misapprehended the difference between an absolute and conditional discharge.

[2] Finally, we see no merit in the submission that the two dispositions constitute inconsistent sentences on account of the non-disclosure provisions contained in s. 45(l)(d.2) and s. 45(1)(e) of the Young Offenders Act, R.S.C. 1985, c.Y-1 as amended (the "Act"). Properly construed, those provisions dovetail in this case. Section 45(l)(d.2) provides that the records kept pursuant to ss.40 to 43 of the Act may not be made available for inspection under ss. 44.l or 44.2 on the expiration of three years after the young person is found guilty; s. 45(l)(e) provides that the same records shall not be made available for inspection on the expiration of three years after all dispositions made in respect of that offence. In this case, both the finding of guilt and the disposition of probation were made on the same date and the three year period therefore applies to both.

[3] The appellant would have us read s. 45(1)(e) to mean that when probation is ordered, the three year period referred to in that provision is to be calculated from the date the probation period is completed. That however is not what the provision says. Where Parliament intended such a result, it has said so expressly. (See for example s. 45(1)(g)(i)).

[4] Accordingly, leave to appeal sentence is granted but the appeal is dismissed.