WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…
(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(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: 20050225
DOCKET: C41640
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – J. L. E. (Appellant)
BEFORE:
WEILER, GOUDGE and GILLESE JJ.A.
COUNSEL:
Irwin Koziebrocki, Esq.
for the appellant
Miriam Bloomenfeld
for the respondent
HEARD & ENDORSED:
February 18, 2005
On appeal from the sentence imposed on January 27, 2004 by Justice Timothy C. Whetung of the Ontario Court of Justice.
A P P E A L B O O K E N D O R S E M E N T
[1] In the circumstances of this case, the appellant concedes that the effect of the jurisprudence of this court is that if the accused was considered to be an adult at the time he committed the crime he should be treated as an adult. The respondent submits that an appropriate sentence would be a sentence of one year incarceration in an adult jail plus 18 months probation. The respondent concedes that the ten year weapons prohibition is an illegal sentence as the provision did not exist at the time of the offences.
[2] The appellant has served 4½ months in jail and seeks a conditional sentence for the balance of the one year term. The appellant is 47 years old, the offence is a historical one and in the interim he has not been found guilty of any related offences. He has been on bail for eight months. While a 12 month sentence of incarceration in jail would have been appropriate in this case, in the circumstances we would not reincarcerate the appellant and would instead order that the balance of the one year be served as a conditional sentence.
[3] Accordingly, leave to appeal sentence is granted, the appeal as to sentence is allowed, and in addition to time served, the appellant is sentenced to a conditional sentence of seven months and two weeks on the usual statutory conditions on the gross indecency counts. In addition, the appellant is sentence to 12 months probation consecutive on the indecent assault count on the same terms as originally imposed. The weapon prohibition order is set aside. (The same terms as are in his probation are also to be included as conditions of his conditional sentence.)