R. v. Y.M., 2015 ONCA 528

WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(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.

111(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.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Y.M., 2015 ONCA 528

DATE: 20150710

DOCKET: C57722

Hoy A.C.J.O., Weiler and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Y.M.

(Protected from publication by s. 110 of the Youth Criminal Justice Act)

Appellant

Counsel:

Anida L. Chiodo, for the appellant

Hannah Freeman, for the respondent

Heard and released orally: July 7, 2015

On appeal from the finding of guilt entered on April 26, 2013 by Justice Salvatore Merenda of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

1The appellant was found guilty of one count each of robbery, weapons dangerous and possession of stolen property. He appeals his conviction and raises the following grounds of appeal:

• The trial judge failed to deliver sufficient and meaningful reasons;
• The verdict was unreasonable;
• The trial judge failed to properly apply the rule against multiple convictions.

2The appellant abandoned his sentence appeal.

3We propose to deal with the sufficiency of the reasons and the unreasonable verdict issues together.

4Read as a whole, the trial judge’s reasons explain why he found the appellant guilty. Two robberies were committed within 30 minutes of each other on the same afternoon and the same group was alleged to have committed both robberies. The trial judge rejected the appellant’s evidence that he was with the group that afternoon before and after the second robbery but not during the robbery. He further rejected the balance of the appellant’s evidence in its entirety. In our opinion he provided adequate reasons for doing so.

5Contrary to the submissions of the appellant’s counsel, the trial judge placed little or no weight on the eye witness identification evidence in finding the appellant guilty. The weight of the trial judge’s reasons rests on the appellant’s physical and temporal proximity to where the second robbery occurred, the appellant’s flight and concealment when he saw his friend arrested, and the evidence of the police officer that he was hiding on a skid with the stolen property beneath him.

6It was open to the trial judge to find that the appellant was in possession of the stolen items and that the doctrine of recent possession applied. The verdict was not unreasonable.

7However, we agree that the trial judge erred in his application of the Kienapple principle. In view of R. v. Loyer, [1978] 2 SCR 631, the finding of guilt on the weapons dangerous charge ought to have been stayed. Similarly having regard to R. v. Coté, [1975] 1 SCR 303 and the short time after the robbery the appellant was found with the stolen property the finding on that count ought also to have been stayed.

8Accordingly, the appeal is allowed to the extent that the findings of guilt on the weapons dangerous and possession of stolen property shall be stayed. The appeal is otherwise dismissed.