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: 20040923

DOCKET: C41251

COURT OF APPEAL FOR ONTARIO

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

BEFORE: WEILER, GOUDGE and FELDMAN JJ.A.

COUNSEL: Daniel A. Stein for the appellant Karen Shai for the respondent

HEARD: September 10, 2004

RELEASED ORALLY: September 10, 2004

On appeal from the conviction entered by Justice Paul M. Taylor of the Ontario Court of Justice dated April 29, 2002.

E N D O R S E M E N T

[1] On April 26, 2002 the appellant (a Young Person) was convicted of five charges (robbery, extortion, assault and two counts of uttering threats). The appellant was convicted and sentenced to two years’ probation with five months of pre-trial custody noted on the information. The appellant appeals against conviction.

[2] The appellant’s main ground of appeal is that although the trial judge clearly instructed himself that he must apply the decision of R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) he failed to consider whether the appellant’s evidence might raise a reasonable doubt and essentially treated the case as a credibility contest. We disagree. In his reasons the trial judge also noted that this was not a credibility contest. He further stated that approaching the case by treating it as a credibility contest failed to recognize the presumption in law that an accused is presumed to be innocent and the requirement that a court be persuaded beyond a reasonable doubt of the guilt of an accused person.

[3] A further ground of appeal relates to the trial judge’s assessment of the demeanour of the appellant and the complainant. While demeanour was a factor in the trial judge’s reasons for conviction, the trial judge did not decide the case wholly on demeanour. He found support for the complainant’s evidence in the fact that the appellant admitted to starting the confrontation by pushing the complainant. It was also the appellant who sought out the complainant. The trial judge accepted the complainant’s evidence that he had $300 in his wallet to pay for his soccer fees and when he retrieved his wallet after the altercation, all but $5.00 of that money was gone. The trial judge was entitled to accept this evidence. While the appellant submits that the trial judge applied a stricter standard of scrutiny to the appellant’s evidence than to the complainant’s we see no basis in the reasons for this contention.

[4] We also do not agree that the trial judge misapprehended the evidence because he noted that the appellant was the smaller of the two boys although it was he who sought out the complainant for a confrontation.

[5] The verdict was not unreasonable.

[6] The appeal is dismissed.

“Karen M. Weiler J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”