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: 20031124

DOCKET: C37626

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – R.A. (A Young Person) (Appellant)

BEFORE: WEILER, ABELLA and SIMMONS JJ.A.

COUNSEL: Tanya M. Kranjc for the appellant Melissa Ragsdale for the respondent

HEARD: November 20, 2003

RELEASED ORALLY: November 20, 2003

On appeal from the conviction entered by Justice Douglas B. Maund of the Ontario Court of Justice dated July 25, 2001 and the sentence imposed by Justice Maund dated October 2, 2001.

E N D O R S E M E N T

[1] The appellant, R.A., was found guilty of theft under $5,000 and assault with a weapon. He appeals from that finding. While the appellant also originally appealed the disposition imposed by the trial judge we were advised at the hearing of this appeal that the appeal as to disposition was being abandoned as moot.

[2] The first issue on this appeal is whether the trial judge erred in refusing to reopen the proceedings to hear fresh evidence that the defence had obtained between the date the appellant was found guilty and the date of his sentencing hearing. The fresh evidence proferred was a letter from Much Music as to the date a concert had taken place that was attached as an exhibit to an affidavit of defence counsel’s secretary. The secretary swore that the letter had been received. There was, however, no evidence as to the truth of the contents of the letter. In addition, there was no evidence as to whether the group had performed at Much Music only on the day in issue or on other dates as well. We would dismiss this ground of appeal.

[3] In relation to the count of theft, the identity of the appellant was admitted at trial. Thus, the second ground of appeal relates to the assault charge only. In relation to the assault charge, the appellant submits that the decision was unreasonable. The appellant submits that the identification evidence was fraught with frailty having regard to the condition of the complainant at the time of the assault, and having regard to the eyewitness identification evidence of the appellant by the complainant’s girlfriend. In our opinion the trial judge’s decision was not unreasonable and he was entitled to reach the conclusion that he did on the identification evidence.

[4] With regard to the theft conviction the trial judge did not err on the issue of mens rea. There was no evidence to support the submission that the appellant had a colour of right to the cell phone. The appellant himself conceded that he refused to return the cell phone when asked.

[5] The appeal is therefore dismissed.

“K. M. Weiler J.A.”

“R. S. Abella J.A.”

“Janet Simmons J.A.”