DATE: 20060710

DOCKET: C44921

M33890

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – J.M. (A Young Person) (Applicant/Appellant)

BEFORE:

O’CONNOR, A.C.J.O., LABROSSE and FELDMAN JJ.A.

COUNSEL:

Sam Scratch

agent for Frank Addario, Counsel for the applicant/appellant

Alison Wheeler

for the respondent

HEARD AND RELEASED ORALLY:

July 5, 2006

On appeal from the sentence imposed by Justice David Salmers of the Superior Court of Justice, dated November 24, 2005.

E N D O R S E M E N T

[1] The test for a stay has not been met. It is conceded and we agree that there is a serious issue to be tried. We are not prepared on this record to conclude that the applicant will suffer irreparable harm unless the placement decision is stayed.

[2] More importantly, in our view, the balance of convenience weighs against a stay. The trial judge found that any possible prejudice the applicant might suffer if a stay is refused is outweighed by the concern for the safety of others should the applicant be returned to the youth system.

[3] On this record, we see no error in that finding.

[4] Moreover the applicant has already been in the federal system since April 12, 2006 and he will become 20 years of age on October 21st, 2006 when his status in the youth facility would have to be reviewed. These factors are relevant to the balance of the convenience which weighs in favour of refusing a stay.

[5] The application is dismissed.