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: 20050120

DOCKET: C41364

COURT OF APPEAL FOR ONTARIO

RE:

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

BEFORE:

DOHERTY, LASKIN & FELDMAN JJ.A.

COUNSEL:

R. Craig Bottomley

for the appellant

Nadia Thomas

for the respondent

HEARD: January 14, 2005

RELEASED ORALLY: January 14, 2005

On appeal from the conviction entered by Justice Cohen dated November 21, 2003 and the sentence imposed dated December 19, 2003.

E N D O R S E M E N T

[1] The conviction appeal is based on the appellant’s discovery after his conviction that the trial judge had accepted a plea from the appellant’s co-accused some six weeks before the appellant’s trial. The facts read in on the co-accused’s plea implicated the appellant and were consistent with the complainant’s testimony at the appellant’s trial. The co-accused also testified at the appellant’s trial.

[2] The appellant alleges a reasonable apprehension of bias. He does not allege actual bias. In considering this submission, we proceed on the basis that the trial judge would have alerted counsel to the fact that he took the co-accused’s plea, if he had recalled that he had done so when the appellant’s trial came on for hearing. It obviously would have been preferable for a different judge to preside over the appellant’s trial.

[3] Having regard to the high threshold established for demonstrating a reasonable apprehension of bias which recognizes that trial judges can and do routinely disabuse their minds of potentially prejudicial information provided to them in prior proceedings, we must reject the appellant’s argument. See R. v. G.H., 2002 49363 (ON CA), [2002] O.J. No. 3635 (Ont. C.A.).

[4] With respect to the sentence appeal, we agree with the appellant that the sentence purportedly imposed on the breach of probation charge must be quashed since the appellant was not convicted of that charge. We are not persuaded, however, that the trial judge erred in the imposition of sentence on the sexual assault charge. Nor, in our view, should we intervene at this point in time. The appellant has almost completed the secure custody part of his sentence.

[5] Leave to appeal sentence is granted and the appeal is allowed to the extent of quashing the sentence imposed on the breach of probation.

“Doherty J.A.”

“John Laskin J.A.”

“K. Feldman J.A.”