THIS IS AN APPEAL UNDER THE YOUNG OFFENDERS ACT AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:

38.(1) 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) Everyone 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: 20031113

DOCKET: C39054

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. M.G. (A Young Person) (Appellant)

BEFORE:

DOHERTY, BORINS and CRONK JJ.A.

COUNSEL:

Leslie Maunder for the appellant

Sarah Gray for the respondent

HEARD & ENDORSED:

November 7, 2003

On appeal from the conviction entered by Justice E. Allen of the Ontario Court of Justice (Youth Court) dated April 18, 2002 and the sentence imposed dated August 8, 2002.

A P P E A L B O O K E N D O R S E M E N T

The Conviction Appeal

[1] In paraphrasing R. v. W.(D.), the trial judge erroneously referred to the “might reasonably be true” standard applicable to recent possession cases. However, it is clear that he totally rejected the defence evidence as fabricated. That evidence could not have assisted the appellant in the application of the second component of the R. v. W.(D.) test.

[2] The trial judge was aware of the significant factual conflict in the evidence of the two key Crown witnesses. He considered this conflict in making his findings of fact and was entitled to arrive at the conclusion he did.

[3] Counsel agree that both charges arose out of the same delict and that only one conviction should have been entered. The conviction on the charge of assault with a weapon will be stayed.

The Sentence Appeal

[4] The trial judge did not advert to principles controlling the determination of the appropriate disposition for young offenders. He did not refer to the need to determine that a non-custodial disposition was not appropriate before imposing a custodial term, or the need to limit the length of the custodial term to the term necessary to reflect the applicable principles.

[5] We agree with the trial judge that general deterrence was a key factor given the crime committed and its surrounding circumstances. We also agree that incarceration was necessary despite the appellant’s age, her first offender status and her strong family support. The governing principles would, however, best be served by a short sharp period of incarceration followed by probation on stringent terms.

[6] We would vary the sentence to time served (about one month) followed by probation for 18 months. Counsel are asked to discuss the appropriate terms and advise the court.