WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO s.38 OF THE ACT WHICH PROVIDES:

38.(1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Every one who contravenes subsection (1), …

(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: 20030120

DOCKET: C36667

COURT OF APPEAL FOR ONTARIO

MOLDAVER, MacPHERSON and CRONK, JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Carol A. Brewer, for the respondent

Respondent

• and -

J. S. M. (A Young Offender)

Appellant

In writing

On appeal from the conviction entered by Justice B. Duncan of the Ontario Court of Justice, Youth Court dated April 12, 2001 and the disposition imposed by Justice B. Duncan on May 14, 2001, and from the order of Justice M. Rosenberg of the Court of Appeal for Ontario dated September 13, 2002.

BY THE COURT:

[1] The appellant, a young offender, was found guilty on April 12, 2001 of one count of dangerous driving contrary to s. 249(1)(a) of the Criminal Code. On May 14, 2001, he received a disposition of thirty days open custody, followed by probation for eighteen months. He was also prohibited from driving a motor vehicle anywhere in Canada for a period of one year. He was acquitted of the additional charge of criminal negligence in the operation of a motor vehicle causing bodily harm. He appeals both his dangerous driving conviction and his disposition on that conviction.

[2] In August 2002, the appellant requested this court to appoint counsel to represent him on this appeal. By order dated September 13, 2002, Rosenberg J.A. dismissed that application. The appellant seeks to have that order set aside and counsel appointed on his appeal.

(1) The Appellant’s Request for Counsel

[3] In our view, there is no basis upon which to interfere with Rosenberg J.A.’s decision to dismiss the appellant’s application for counsel on his appeal. We reach that conclusion for the following reasons.

[4] Rosenberg J.A. correctly indicated that the test for when this court should exercise its jurisdiction to appoint counsel is set out in R. v. Bernardo (1997), 1997 2240 (ON CA), 121 C.C.C. (3d) 123 (Ont. C.A.) at 133. In applying that test in this case, Rosenberg J.A. concluded:

I am satisfied that the appellant can effectively advance his grounds of appeal without the assistance of counsel. The appellant is a young person but he has prepared material that sets out the grounds of appeal and the arguments in favour of allowing the appeal. This is not a complex case and the grounds of appeal are not complex. His written material demonstrates that he understands the applicable legal principles and how they relate to the facts of his case.

[5] This appeal was initiated in May 2001. Thereafter, in communications with this court, the appellant raised numerous issues concerning the appeal, including matters related to the transcripts which he asserted were required for determination of the appeal, the contents of the appeal book, the terms of the appellant’s sentence, the grounds of the appellant’s appeal, and the position advanced by the respondent in response to the issues raised by the appellant. In many instances, the appellant’s submissions were supplemented by submissions and other communications to this court by one or both of his parents. Those communications clearly set out the appellant’s grounds of appeal and his arguments on each issue.

[6] In particular, the appellant filed submissions with this court concerning the grounds of his appeal, and his arguments in support of those grounds, on several occasions including, but not limited to, materials filed in May, October and November, 2001, and July and August, 2002. The appellant’s mother, or both of his parents, also provided this court with written materials with the intention that they be considered on the appeal. In late August 2002, further detailed materials were received from the appellant, consisting of a lengthy report prepared by his mother, in support of his appeal.

[7] We have considered all of the materials received from the appellant, and from either or both of his parents, in evaluating whether the appellant requires counsel on this appeal. We agree with Rosenberg J.A.’s conclusion that the appellant can effectively advance his grounds of appeal, and the arguments in favour of allowing the appeal, without the assistance of counsel. The materials received from the appellant, and from either or both of his parents on his behalf, overwhelmingly support that conclusion and evidence a clear understanding of the legal issues and principles engaged on this appeal. Accordingly, we dismiss the appellant’s application to set aside the September 13, 2002 order of Rosenberg J.A.

(2) The Events Giving Rise to the Appellant’s Conviction for Dangerous Driving

[8] The charge of dangerous driving against the appellant arose from events in the City of Burlington on January 29, 2000 when the appellant was driving his car while making food deliveries for his employer. There was one passenger, Cameron Patterson, in the appellant’s vehicle.

[9] Constable C.J. Bowen of the Halton Regional Police Service testified at trial that he saw the appellant driving his motor vehicle on January 29, 2000 at a quick rate of speed, and then observed him making a rapid lane change without first signalling his intention to change lanes. Thereafter, Constable Bowen observed the appellant’s vehicle accelerate and proceed through an intersection on a red light, travelling at a rate of speed which Constable Bowen believed to be in excess of the speed limit.

[10] Constable Bowen was dressed in full uniform but was driving an unmarked police vehicle. He testified that, in an effort to cause the appellant to stop his vehicle, he flashed his car’s high beam lights at the appellant’s car, honked his horn, activated red flashing lights on the passenger side of his vehicle, and made eye contact with the appellant in the side view mirror of the appellant’s car. The appellant signalled with his hand for Constable Bowen’s car to pass him. Constable Bowen initially stayed behind the appellant’s car but, shortly thereafter, positioned his car beside the appellant’s vehicle and pointed for the appellant to pull over to the curb.

[11] According to Constable Bowen, the appellant stopped his vehicle in the curb lane, approximately four to six feet away from the curb. When Constable Bowen approached the appellant’s vehicle on foot, a conversation took place with the appellant. Conflicting evidence was adduced at trial concerning the nature of that conversation and ensuing events. The appellant claimed, in summary, that he told Constable Bowen that he was going to drive his car around a nearby corner to avoid obstructing traffic and that, thereafter, he told Constable Bowen he was going to drive home. He maintained that until Constable Bowen approached his car on foot, he did not realize that Constable Bowen was a police officer. He also said that Constable Bowen physically assaulted him while reaching into his car, and that the police officer was verbally abusive and swore at him.

[12] Constable Bowen testified that he told the appellant to drive his car closer to the curb and, when the appellant failed to do so, he reached inside the appellant’s car for the keys in the ignition. The appellant then allegedly accelerated his vehicle, while Constable Bowen’s arm was still inside the window of the car, with the result that Constable Bowen’s arm was hooked on top of the driver’s window of the appellant’s car for some time while the vehicle was moving. Constable Bowen testified that he tumbled free of the appellant’s car when it slowed down shortly thereafter, whereupon the appellant proceeded to drive around the corner. Constable Bowen radioed to other police officers and then followed the appellant in his own unmarked police car.

[13] The next events were not seriously challenged by the appellant at trial. The youth court judge’s description of those events was as follows:

A police road block of sorts was put up by two squad cars that positioned themselves across the road, and [the appellant] swerved to avoid it.

At that he continued on, going here and there, followed by a number of police cars, all with their emergency equipment going. He made movements to either hit one of the police cars, or at least to intimidate the officer who was driving that vehicle. He went through a number of red lights.

[14] The evidence at trial established that, while followed by numerous police cars, the appellant went through several red lights and stop signs without stopping, made several lane changes without signalling, manoeuvred through other traffic while the police were following him, and ultimately stopped his vehicle at his home where he was arrested.

(3) The Conviction Appeal

[15] The appellant raises several grounds in support of his conviction appeal. In our view, it is necessary to address only the appellant’s assertions that:

(i) his representation at trial was inadequate;

(ii) he was prevented at trial from making full answer and defence;

(iii) the trial judge erred by accepting the evidence of Constable Bowen and Janice Copley; and

(iv) the verdict is unreasonable and not supported by the evidence.

We consider each of these assertions in turn.

(i) Inadequate representation

[16] The appellant was not represented by counsel at trial. The youth court judge was informed that the appellant’s application to legal aid for funded counsel was denied. He was also informed that the appellant had applied under s. 11(4) of the Young Offenders Act, R.S.C. 1985, c. Y-1 (the “YOA”) for a direction that the appellant be represented by counsel, but that the appellant had withdrawn that application.

[17] The appellant’s mother informed the youth court judge that repeated efforts on behalf of the appellant to meet with defence counsel had been unsuccessful, although the appellant’s family was prepared to pay for legal representation for the appellant. The following exchange occurred on December 8, 2000 between the youth court judge and the appellant’s mother:

The Court: Well, but you have tried and you have failed in that respect, and there is no indication you are going to be successful if I adjourn this. You say you have made all these efforts for the past 10 months or so,…

Mrs. M.: I agree, Your Honour.

The Court: And you have been unsuccessful, so there is no suggestion that you are going to be successful if I give you an adjournment of a month, is there? What is going to change?

Mrs. M.: The only thing that I would see would change if you ordered a lawyer to represent [the appellant].

The Court: Well, we can’t order lawyers to do things. What we can order is essentially the order that your son be granted legal aid is what it comes down to, but it sounds to me what you are saying is nobody would take the brief whether it is legal aid or otherwise. Besides, you were prepared to pay for a lawyer, you said.

Mrs. M.: We were. We asked - - we said…

The Court: Well, I do not know why it is then that no lawyer is prepared to take the case. That sounds very odd, but the fact is that if that is the case nothing is going to change in the next month or so if the matter if adjourned.

Following that exchange, the youth court judge permitted the appellant’s mother to assist the appellant at trial, pursuant to s. 11(7) of the YOA. She actively participated in the conduct of the trial, together with the appellant, by cross-examining witnesses and making submissions to the youth court.

[18] The appellant now argues that his representation at trial was inadequate because he was self-represented and was assisted only by his mother under s. 11(7) of the YOA. He asserts that, because neither he nor his mother are legally trained, he was prejudiced in his defence because they did not fully appreciate the applicable procedural rules and legal principles at trial, were unable or failed to adequately introduce or otherwise elicit evidence favourable to the appellant, and generally were unable to persuade the youth court judge to accept their defence theories and submissions. The appellant maintains that, with adequate legal representation at trial, he would have been successful in demonstrating his innocence on the evidence, in shortening the trial, and in securing an early withdrawal of certain of the charges against him. We reject the appellant’s argument, for several reasons.

[19] First, while the special role of counsel for young persons is given prominence in the YOA and that statute contains provisions designed to ensure that young persons and their parents are informed of a young person’s right to retain and instruct counsel (see R. v. H. (J.) (2002), 2002 41069 (ON CA), 161 C.C.C. (3d) 392 (Ont. C.A.)), the YOA does not require that counsel be appointed for a young person in circumstances where the young person is aware of his or her right to counsel and voluntarily withdraws a request for legal counsel.

[20] In this case, the appellant acknowledges that he voluntarily withdrew his application under s. 11(4) of the YOA for the appointment of counsel. He claims that he did so because of the adverse impact of the proceedings on his parents’ health, in particular, that of his mother. The record indicates that when the appellant’s application under s. 11(4) of the YOA commenced on March 3, 2000 before Forsyth J. of the Ontario Court of Justice, counsel acted as amicus curiae. During the proceeding, the appellant indicated that he wished to withdraw his application. Forsyth J. did not immediately accept that withdrawal; instead, he adjourned the proceedings for several days to permit the appellant to consult with his parents and to reflect upon his withdrawal request. When the hearing resumed, the amicus curiae continued to be involved and the appellant did not rescind his withdrawal request. Further, in a letter to Crown counsel at trial (not counsel on this appeal), dated March 29, 2000, the appellant indicated that, as his application had been withdrawn, “no more discussion was or is required on this subject”. In those circumstances, there was no requirement on the youth court judge to appoint counsel for the appellant.

[21] Having elected to withdraw his application for court-appointed counsel, and legal aid having been denied, it was open to the appellant to privately retain and instruct legal counsel if he wished to do so. The appellant was informed on July 7, 2000 that his trial would proceed on December 8, 2000 with or without counsel. He received a similar warning on August 4, 2000. The trial commenced on December 8, 2000. By that time, although his application for a court-appointed counsel had been withdrawn for many months and legal aid had been denied, the appellant had neither met with nor retained counsel. We agree with the youth court judge’s observation that if, as the appellant’s mother represented to the youth court judge, the appellant’s family was prepared to retain and pay counsel for the appellant, it is difficult to understand why at least a consultation meeting had not been arranged prior to the scheduled commencement date for the trial.

[22] In our view, in all of those circumstances, the appellant must bear the consequences of his decision to withdraw his application under s. 11(4) of the YOA and his failure to meet with, or to privately retain, counsel.

[23] There is a second compelling reason to reject the appellant’s argument that inadequate representation of him at trial warrants the setting aside of his conviction. Stated simply, we are not satisfied that the advocacy by, or on behalf of, the appellant at trial was inadequate to fairly and fully present his defence, or that trial fairness was undermined.

[24] As argued by the respondent on this appeal, the trial judge endeavoured to assist the appellant in many ways at trial by advising the appellant of his substantive and procedural rights, by explaining various legal terms and procedures, and by affording both the appellant and his mother the opportunity to cross-examine Crown witnesses, among other measures. The appellant and his mother participated extensively at the trial and in final legal argument, and outlined in detail the appellant’s defence and position on the Crown’s case. The trial judge considered, and rejected, the appellant’s explanation for his driving behaviour and accepted the evidence of the Crown’s witnesses. It was open to the trial judge to do so. The appellant, in essence, is now seeking to retry his case to achieve a different outcome.

[25] Finally, the appellant’s assertion that the outcome at trial would have been different had he been represented by counsel is entirely speculative. As we discuss later in these reasons, the Crown’s case against the appellant was overwhelming. The evidence of the appellant’s driving while avoiding the police roadblock, and attempting to escape the police chase after his encounter with Constable Bowen, was sufficient to support a conviction for dangerous driving even if Constable Bowen’s evidence had been rejected in its entirety. Accordingly, we would not give effect to this ground of appeal.

(ii) Full answer and defence

[26] In support of his claim that he was prevented at trial from making full answer and defence, the appellant alleges that the “Attorney General” failed to deliver transcripts of the appellant’s trial proceedings as “contracted for on May 16, 2001”. That claim has no merit.

[27] On May 16, 2001, the appellant’s mother ordered copies of the transcripts from the appellant’s trial and undertook to pay for them. Thereafter, on numerous occasions, the appellant or his mother, or both, asserted that outstanding transcripts from all or part of the proceedings involving the appellant were necessary for this appeal and that the “Attorney General” had failed to provide them. That assertion was repeated in the appellant’s August 28, 2002 written submissions concerning the appeal, received by this court on August 30, 2002. The appellant continues to assert that claim notwithstanding that the issue of the transcripts required for the appeal was twice dealt with by Rosenberg J.A. of this court in orders dated October 1 and November 15, 2001. Those orders made it clear that the obtaining of additional transcripts was the responsibility of the appellant. Indeed, the order dated November 15, 2001 expressly stated: “If the appellant wishes to order additional transcripts for use on the appeal, he must do so himself.” Any assertion to the contrary by the appellant flies in the face of those facts. Moreover, the issue of any failure to provide outstanding transcripts relates only to this appeal. It has no bearing on whether the appellant was impeded at trial from making full answer and defence.

[28] The appellant further maintains that his right to make full answer and defence was undermined by the failure to obtain complete disclosure from the Crown and by the failure of Crown counsel to “make submissions which could be responded to by the appellant”.

[29] There are no materials in the record before this court evidencing any disclosure deficiency, nor have any particulars regarding this claim been provided by the appellant. The transcript of the proceedings before Forsyth J. on March 30, 2000 indicates that all of the disclosure materials then in the possession of the Crown had been given to the amicus curiae on behalf of the appellant. The transcript of the proceedings before the youth court judge on December 8, 2000 indicates that, at the outset of trial, the youth court judge reviewed with the appellant’s mother all outstanding disclosure issues, and held that all relevant material had been provided by the Crown.

[30] In connection with the appellant’s assertion that the Crown did not “make submissions which could be responded to by the appellant”, the Crown is free to make those relevant submissions it considers appropriate at trial and on this appeal. Full opportunity was provided to the appellant at trial and before this court to make those submissions he considered necessary or appropriate.

[31] The appellant also submits that he was prevented from, or prejudiced in, making full answer and defence because the trial judge declined to permit him to play at trial the video-taped statements to the police of Cameron Patterson and Janice Copley. The appellant has not provided the transcripts of the evidence of either of those witnesses to this court, although he was informed on more than one occasion that it was his responsibility to do so if he required those transcripts for his appeal. No explanation for this failure has been provided, save for the bald allegation that the “Attorney General” or, presumably, the court reporter, failed to produce required transcripts.

[32] In addition, the Crown indicated at trial that it would not be calling any civilian witnesses. Crown counsel on this appeal indicates in her factum that the trial court reporter has confirmed that Ms. Copley was a civilian witness called by the appellant. The appellant was not entitled to cross-examine any of his witnesses at trial save as the youth court judge permitted in the exercise of his discretion. Moreover, no arguable right to cross-examine on a prior inconsistent statement arises unless an inconsistency is demonstrated between the witness’ trial testimony and his or her prior statement. On the record before this court, no demonstration of a material inconsistency in the evidence of either witness has been made, and no transcripts of their evidence have been offered in support of the appellant’s claim. Accordingly, the appellant’s argument of prejudice on this ground must fail.

[33] Finally, the appellant argues that he was prevented from making full answer and defence due to the “repeated interruptions by the trial judge during submissions”. The transcripts available to this court, which include the transcript of the final submissions made on behalf of the appellant, do not support that contention. Indeed, they suggest that the youth court judge’s interventions were made to assist the appellant, to encourage him, or his mother when she addressed the court on his behalf, to focus on relevant issues, and to clarify the defence position on the issues.

[34] Accordingly, we conclude that the appellant’s submission that he was prevented from making full answer and defence lacks foundation. We would not give effect to this ground of appeal.

(iii) Reliance by the youth court judge on the evidence of Constable Bowen and Janice Copley

[35] The appellant submits that the youth court judge failed to recognize discrepancies in the evidence of Constable Bowen and contradictions between his testimony and that of Janice Copley. He argues, therefore, that the youth court judge erred in relying upon the testimony of both witnesses in convicting the appellant on the charge of dangerous driving.

[36] There are several difficulties with that submission. First, as we earlier mentioned, it appears that Ms. Copley was called as a witness at trial by the appellant. She is a member of the public who observed part of the incident between the appellant and Constable Bowen. Having elected to call Ms. Copley as a witness, it is difficult to understand the basis on which the appellant can now seek to describe Ms. Copley as a “Crown witness” or to deny that she was a “neutral” witness, as the appellant asserts in his submissions to this court.

[37] Second, the youth court judge was free to accept all, part or none of the evidence of each witness at trial. It was for him to determine, after hearing and observing the witnesses at trial, what weight, if any, should be assigned to their testimony.

[38] Finally, contrary to the appellant’s submissions, the reasons of the youth court judge demonstrate that he recognized, and addressed, the discrepancies between the evidence of Constable Bowen and Ms. Copley. He stated in his reasons:

I have no hesitation in accepting the evidence of Officer Bowen as to the dragging incident that occurred on Walkers Line. It is substantially corroborated and confirmed by the evidence of Janice Copley, a neutral civilian witness. Any discrepancies between their accounts, as to distances, as to particulars, are as might be expected from two people witnessing, and in one case, experiencing, a brief and dramatic event - - those discrepancies in my view, are of either no or little significance [emphasis added].

[39] The youth court judge was in the best position to observe and assess the credibility of the witnesses called at trial, and the materiality, if any, of the discrepancies in their testimony. His credibility findings are entitled to considerable deference by this court: R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.). In our view, there is no basis on which to interfere with those findings.

(iv) Unreasonable verdict

[40] We have earlier stated our view that the Crown’s case against the appellant was overwhelming. As observed by the youth court judge, although there were conflicts between the defence evidence and that of Constable Bowen concerning the interactions between Constable Bowen and the appellant, the driving by the appellant after the incident with Constable Bowen, for the most part, was not disputed at trial. The youth court judge found as follows:

I accept the police evidence that the [appellant], on North Service Road, drove his vehicle toward Constable Labanich’s vehicle on more than one occasion. I don’t think he necessarily did so to hit her, but to do so in a manner to intimidate her, or to get her to back off her attempts to pull him over.

I also accept that the [appellant] went through red lights at Brant Street, at Plains Road, and at Fairview, he went over into the passing lane and then swung around and went through a red light at Fairview as well.

[41] The youth court judge also considered the defence position:

Now the [appellant’s] defence is that he was fearful of the police and he wanted witnesses to his arrest, or his confrontation with them. In particular, he wanted his parents to see it.

In my view, this alleged fear from the [appellant] is completely fabricated. …

I think it may very well be that [the appellant] wanted to get home for his parents to be witnesses, but it wasn’t because he was fearful of being beaten. I think he wanted to involve his parents and enlist in particular, his mother’s considerable energy to rally around him and to champion his cause with persecution fantasies and to paint him as a victim. He knew that no matter how wrong he had been, how atrocious his conduct was, he would always be coddled and treated like he was a person who had been grievously wronged, and not the one who was in the wrong, and that’s why he wanted to get home.

The accused in my view, is unbelievably cocky and is breathtakingly oblivious to the wrongfulness of his conduct. His position appears to be that he, [J.M.], is entitled to drive any way he chooses and endanger anyone he pleases, so that his arrest can take place on his chosen terms. For example, he has repeatedly said that on Harvester, he had no choice but to either ram the police or to go around. Well how about applying the brakes and stopping?

Your claim of being hit by Bowen and fearful of the police, in my view, is absolute bologna and I don’t buy a bit of it.

[42] In this case, the question to be determined by the youth court judge was whether the appellant’s driving was dangerous. His findings of fact concerning the nature of the appellant’s driving were supported by the evidence. His rejection of the defence position was based on his assessment of the appellant’s credibility. There is nothing in the youth court judge’s reasons to suggest that he misapprehended the evidence or that he otherwise went astray in his assessment of it. The youth court judge concluded:

[The appellant’s] driving was clearly dangerous, it was a marked departure from the driving that could be expected by a prudent driver, and there was a clear and substantial danger to the public created.

We agree. Accordingly, the appellant’s appeal from his dangerous driving conviction is dismissed.

(4) The Appeal Against Disposition

[43] The appellant received a disposition of thirty days open custody, followed by probation for eighteen months. He was also prohibited from driving a motor vehicle anywhere in Canada for a period of one year. The terms of his probation order required that he perform seventy-five hours of community service, at a rate and on a schedule to be determined by the appellant’s youth worker.

[44] By order of Rosenberg J.A. of this court dated November 15, 2001, the community service term of the probation order was stayed, on request of the appellant, until March 4, 2002 or disposition of this appeal, whichever occurred first. All other terms of the appellant’s probation order remained in effect.

[45] The appellant makes three arguments in support of his appeal against disposition: i) the disposition was excessive and inappropriate given his personal circumstances and the impact of the disposition on the appellant and his family; ii) the youth court judge erred by declining to permit the appellant to cross-examine the author of the pre-sentence report concerning the appellant; and iii) the youth court judge erred by denying the appellant’s request for an adjournment of the disposition proceedings in order to permit the appellant to consult with counsel.

[46] The last two arguments of the appellant may be dealt with summarily. In connection with the denial of the appellant’s right to cross-examine the author of the pre-sentence report, we are not persuaded that any prejudice was occasioned to the appellant by that denial in the particular circumstances of this case. While the appellant challenges many of the factual statements set out in the report, the disposition reasons of the youth court judge indicate that he was alive to the fact that much of the report’s contents were challenged by the appellant, and he referenced the report only for the purposes of observing that the appellant was behind in his educational training and in the development of employment related skills, and that he lacked insight into his offending conduct and had exhibited no remorse. The youth court judge’s observations concerning the appellant’s lack of insight and remorse were also expressly based on his own observations of the appellant during the trial and at his disposition hearing. Finally, those parts of the predisposition report disputed by the appellant, as detailed in correspondence from his mother, do not appear to concern the facts referenced by the youth court judge.

[47] We are also of the view that the denial of the appellant’s adjournment request at his May 14, 2001 disposition hearing occasioned no material prejudice. As a preliminary matter, we note that the submissions of Crown counsel on this appeal concerning the issue of an adjournment denial focus on the denial of an adjournment at trial. However, in his submissions to this court dated October 18 and November 8, 2001, the appellant indicates that the adjournment denial in issue took place at his disposition hearing on May 14, 2001.

[48] The appellant claims that he sought an adjournment of the May 14, 2001 proceeding in order to consult with counsel concerning the pre-disposition report. His submissions indicate that the adjournment was requested for that single purpose and that counsel had not been retained. The appellant has not provided this court with a copy of the transcript of that part of the disposition hearing relating to his alleged adjournment request. However, as the pre-disposition report was only minimally referenced by the youth court judge in his consideration of a proper disposition in this case, and as the appellant’s complaints regarding the pre-disposition report appear to be unrelated to that part of the report referenced by the youth court judge, we are unable to conclude that the denial of an adjournment for the purpose of obtaining advice concerning the pre-disposition report affected the fairness of the disposition hearing or the fitness of the disposition imposed.

[49] Finally, the appellant maintains that his disposition was excessive and inappropriate. Save with respect to the community service requirement of the appellant’s probation order, which we discuss below, we reject that submission.

[50] At the time of trial, the appellant was approximately eighteen years of age. He lived with his parents, an older brother, and his eighty-one year old grandmother. He has a grade eight education. By May 2001, he was making efforts to upgrade his education.

[51] The appellant’s family members apparently suffer from a number of health related impediments. His mother walks with the assistance of a cane and suffers from panic or anxiety attacks. His older brother is unable to drive a car due to a medical condition. His father’s health is poor. His grandmother has special needs and requires assistance from family members for her daily living. Prior to his arrest, the appellant was an active participant in her care giving.

[52] The appellant himself, according to his submissions, suffers from anxiety attacks. As detailed by his mother, he experienced several difficulties, or traumatic events, with persons in authority in the past, including the police. However, prior to this offence, the appellant had no criminal or other young offender record. He did have a record for a variety of motor vehicle offences, including for driving offences, some of which characterized his driving in this instance, that is, speeding, failing to stop at an intersection, and disobeying a red light.

[53] The appellant asserts that his disposition, together with the terms of his bail, had the practical effect of confining him to house arrest for twelve months, and preventing him from driving a car for almost eighteen months prior to his disposition hearing and for one year thereafter. His inability to drive, he claims, resulted in particular hardship for him and for his family because it interfered with his ability to work, to assist in the care of his grandmother, and to perform the community service required by the terms of his probation order. By order dated October 11, 2001, Rosenberg J.A. of this court dismissed an application by the appellant for a stay of his driving prohibition. In his reasons, Rosenberg J.A. stated:

Over a very short time [the appellant] accumulated a relatively serious driving record before being prevented from driving by his bail conditions. The facts of the offence as found by the trial judge demonstrate a troubling lack of judgment and lack of respect for the law. According to the trial judge, who had the opportunity to observe the appellant during the trial, the appellant had “absolutely no insight” into what he had done.

[54] Due to the passage of time since the disposition hearing, the appellant has served the custodial part of his disposition. It appears that he has also now served his one-year driving prohibition, and his probation order has expired, save for the community service requirement which was stayed by Rosenberg J.A.’s order of November 15, 2001.

[55] The disposition by the youth court judge is entitled to considerable deference from this court. Appellate intervention with such a disposition is warranted in only limited circumstances, none of which applies here. See R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500.

[56] In any event, in our view, the custodial part of the appellant’s disposition and the one-year driving prohibition were entirely appropriate given the seriousness of the appellant’s conduct. His driving on the day of the incident endangered the safety of police officers, passing motorists, and pedestrians. On the findings of the trial judge, the appellant dragged a police officer some distance, causing him minor injuries. He evaded a police roadblock and attempted, through the use of his car, to intimidate a police officer. He went through a number of red lights, failed to stop at several stop signs, and failed to signal any of his numerous lane changes.

[57] This was a very serious case of dangerous driving. A driving prohibition was clearly required in the public interest particularly as the appellant, on the record before this court, failed to appreciate the gravity of his conduct and the significant risks posed thereby to public safety. We also think that the custodial part of the appellant’s disposition was mandated to maintain public confidence in the effective administration and enforcement of the law, and to address principles of deterrence and denunciation. The youth court judge committed no error in principle by imposing either the custodial part of the appellant’s disposition or his driving prohibition.

[58] We are concerned, however, with the remaining requirement of the probation order concerning community service, having regard to the passage of time since the appellant’s disposition hearing and the hardship that the overall disposition appears to have inflicted on his family members.

[59] In October 2001, the appellant applied to the youth court judge to vary the terms of his probation order to eliminate the requirement for community service and to substitute a fine or a mandatory donation to charity. The youth court judge declined to vary the probation order on the basis that he lacked jurisdiction to do so. However, but for the jurisdictional issue, the youth court judge was prepared to reduce the community service requirement to twenty-five hours and to substitute, in place of the remaining community service hours, a requirement that the appellant make a charitable donation.

[60] At the time of his application to vary his probation order, the appellant was working approximately ninety hours bi-weekly. He was required, due to his driving prohibition, to travel to and from work with his parents, who were the only family members then authorized to drive. Often the appellant was required to wait for his father to finish work in order to obtain a ride home. As a result, the appellant was often absent from his home for twelve to fourteen hours on a daily basis. Those practical impacts of his disposition, coupled with his grandmother’s continuing care needs, were described by his probation officer as having the effect of exacerbating existing tensions for the appellant and his family.

[61] The Crown is prepared to consent to a variance of the appellant’s disposition to give effect to the youth court judge’s intention, expressed in October 2001, to reduce the community service requirement. In our view, that variance is justified. We do not consider it necessary or appropriate, however, to now impose a requirement for a charitable donation.

(5) Disposition of this Appeal

[62] Accordingly, for the reasons given, the appellant’s conviction appeal is dismissed and his appeal against disposition is allowed, in part, by deleting the term of his probation order requiring seventy-five hours of community service and substituting in its place a term requiring the performance of twenty-five hours of community service on the conditions set out in the probation order. The appellant is to be given credit for any community service hours performed to date. In all other respects, the appellant’s appeal against disposition is dismissed.

RELEASED: “MJM”

“JAN 20 2003” “M. J. Moldaver J.A.”

“J. C. MacPherson J.A.”

“E. A. Cronk J.A.”