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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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: 20060308
DOCKET: C43743
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – A.J. (A Young Person) (Appellant)
BEFORE:
ROSENBERG, BORINS AND LANG JJ.A.
COUNSEL:
Roger A. Pinnock
for the appellant
Brian Snell
for the respondent
HEARD & RELEASED ORALLY:
March 6, 2006
On appeal from conviction by Justice John P. Kerr of the Ontario Court of Justice dated February 24, 2005 and sentence imposed June 28, 2005.
E N D O R S E M E N T
1The appellant submits that the trial judge erred in his treatment of the identification evidence by focusing solely on the honesty of the witnesses and that in any event the sexual assault conviction was unreasonable.
2This case did not turn on the reliability of the identification. This was one continuous transaction and the complainant’s subsequent conversation with the appellant was inconsistent with the appellant not having been involved in the earlier sexual assault.
3We are satisfied that the trial judge did not err in his appreciation of the identification evidence. The verdict was not unreasonable.
4We are also satisfied that the trial judge did not err in refusing to direct a verdict of acquittal on the concealed weapon charge. There was evidence that the complainants were wary of both assailants and did not see any weapon. In those circumstances there was some evidence of concealment.
5Accordingly, the appeal from conviction is dismissed.
6As to sentence, the Crown concedes that the trial judge erred in applying s. 39(1)(d) of the Youth Criminal Justice Act, S.C. 2002, c. 1. In fairness to the trial judge, he did not have the benefit of this court’s decision in R. v. R.E.W., 2006 ONCA 1761, [2006] O.J. No. 265. In our view, given the time already spent in custody, the almost two years of house arrest, and the community service performed by the appellant, the appropriate disposition at this point is time served. We also see no benefit for a probation order.
7Accordingly, leave to appeal sentence is granted, the appeal is allowed and sentence is reduced to time served. The probation order is struck out.
Signed: “M. Rosenberg J.A.”
“S. Borins J.A.”
“S. Lang J.A.”