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: 20030703

DOCKET: C38516 and C38521

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – S. K. AND Z. A. (Applicants/Appellants)

BEFORE:

DOHERTY, MACPHERSON and SHARPE JJ.A.

COUNSEL:

Howard J. Borenstein

for the appellant, S. K.

John Collins

for the appellant, Z. A.

Erika Chozik

for the respondent

HEARD:

June 27, 2003

On appeal from the findings of guilt dated May 3, 2002 by Justice John P. Kerr of the Ontario Court of Justice and the dispositions imposed on June 24, 2002.

ENDORSEMENT

Released orally: June 27, 2003

[1] The appellants appeal from the findings of guilt for assault with a weapon. S. K. appeals the finding of guilt on three grounds: (1) the trial judge’s interventions during the testimony of various witnesses created an appearance of unfairness that deprived him of a fair trial; (2) the trial judge failed to apply the correct standard of scrutiny to the appellant’s evidence; and (3) the verdict was unreasonable. Z. A. appeals the finding of guilt on the ground that the verdict was unreasonable.

[2] The trial judge did intervene too often during the testimony of some witnesses. Some of his interventions were appropriate — for example, when he sought clarification or did not hear what a witness had said. However, other interventions were unwarranted. He interrupted counsel for no valid purpose on too many occasions. That said, there is nothing in the content of the trial judge’s questions to give rise to any appearance of unfairness. The questions were pertinent and were posed in a fair and even‑handed fashion.

[3] Although the trial judge did not mention the reasoning formula set out in R. v. W.(D.), [1991] 1 S.C.R. 742, his reasons, read as a whole, are consistent with that formula. The trial judge stated forcefully that he did not believe the testimony of S. K. It is clear from his reasons that he was not left with a reasonable doubt by that evidence. On the other hand, he was satisfied that the Crown evidence, including the testimony of an eyewitness and a co‑accused, established S. K.’s guilt beyond a reasonable doubt.

[4] There is no basis for concluding that the verdicts of guilty were unreasonable. There was a good deal of evidence to justify the findings of guilt made by the trial judge. In particular, there was ample evidence to support the trial judge’s conclusion that the appellant’s were involved in a “joint venture” in committing the assault on the complainant.

[5] Both appellants also appeal their dispositions, which were six months closed custody, followed by three months open custody and 15 months probation. We see no basis for interfering with these dispositions. The appellants participated in an unprovoked and violent assault with machetes. They were both on bail for other offences at the time of the commission of the assault. They are very fortunate that the injuries to the complainant were not more serious, which in turn might have led to much more serious criminal charges. The fact that the adult co‑accused, S.K. received a lesser sentence — a suspended sentence — is not a disparity which entitles us to interfere with the appellants’ dispositions. S.K. pleaded guilty to simple assault, testified as a Crown witness at the appellants’ trial, had no criminal record, and was not on bail at the time of the offences.

[6] The appeals from the findings of guilt are dismissed. Leave to appeal the dispositions is granted and the disposition appeals are dismissed.

“Doherty J.A.”

“J. C. MacPherson J.A.”

“Robert Sharpe J.A.”