WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
DATE: 20050203
DOCKET: C40360
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – C. S. [A Young Person] (Appellant)
BEFORE:
LASKIN, ROSENBERG and LAFORME JJ.A.
COUNSEL:
Christopher P. Merla
for the appellant
Robert Gattrell
for the respondent
HEARD & RELEASED ORALLY:
February 2, 2005
On appeal from conviction by Justice J.L. Wilson, sitting as a Youth Court Judge, dated March 20, 2003.
E N D O R S E M E N T
1There were numerous inconsistencies in the evidence, some more serious than others. However, there were inconsistencies that went to the central issue of consent, in particular, how the complainant ended up meeting with the appellant and his companions. The trial judge simply said that this “does not in the court’s mind impact significantly”. It is not clear to us why that would be the case given the central nature of that issue. In any event, it was incumbent on the trial judge to resolve these inconsistencies or explain why they did not matter. She did neither. As the Supreme Court of Canada held in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.), where there is confused and contradictory evidence the trial judge is required to address that evidence.
2Second, the trial judge said that she preferred the evidence of the complainant. That is not sufficient. The trial judge must be satisfied that the prosecution has proven its case beyond a reasonable doubt. There are no other parts of the trial judge’s reasons that satisfy us that she properly applied the burden of proof and the principles set out in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.).
3Accordingly the appeal is allowed, the conviction set aside and a new trial ordered.
Signed: “John I. Laskin J.A.”
“Marc Rosenberg J.A.”
“H.S. LaForme J.A.”