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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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: 20061116
DOCKET: C44970
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Appellant) - and – S. K. (A Young Person) (Respondent)
BEFORE:
GOUDGE, BORINS JJ.A. and CUNNINGHAM A.C.J. (Ad Hoc)
COUNSEL:
Christine Tier
for the appellant
Michael J. Pretsell
for the respondent
HEARD & ENDORSED:
November 14, 2006
On appeal from the acquittal by Justice W. J. Pickett of the Ontario Court of Justice dated January 31, 2006.
A P P E A L B O O K E N D O R S E M E N T
[1] The trial judge found that, apart from two considerations, the evidence of non-consensual sex was overwhelming.
[2] The first, the complainant’s muted response in opposition, is conceded by the respondent not to tend to show consent and therefore, as a matter of law, unable to raise a reasonable doubt. The second, accompanying the respondent behind the building, is argued by the Crown to be equally unprobative of consent.
[3] We agree that the trial judge erred in law in relying on the first consideration. However in our view the second is one which could, depending on the circumstances, tend to show consent.
[4] We do not therefore agree with the Crown that a conviction was inevitable. However, given the clear and admitted error of law concerning the first consideration used by the trial judge, there must be a new trial.
[5] Appeal allowed. New trial ordered.