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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.
W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
DATE: 20060419
DOCKET: C44796
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – T. W. C. (Appellant)
BEFORE:
GILLESE, BLAIR and LAFORME JJ.A.
COUNSEL:
W. Gerald Punnett
for the appellant
Jeanette Gevikoglu
for the respondent
HEARD & RELEASED ORALLY:
April 7, 2006
On appeal from the finding of guilt on August 11, 2005 and the disposition imposed on December 28, 2005 by Justice Norman S. Douglas of the Ontario Court of Justice (Youth Court).
E N D O R S E M E N T
[1] T.C., a young person, appeals his conviction for administering a stupefying drug to, and sexually assaulting, his cousin when they were both fifteen years of age. The only ground of appeal pursued in oral argument was that the sentencing judge erred in assessing the alibi evidence. T.C. also seeks leave to appeal sentence.
[2] The appellant’s father advanced the alibi evidence. He testified that he got up around 6:45 a.m. on the day in question, went downstairs and saw the appellant asleep on the couch. The sentencing judge gave full consideration to the father’s evidence and concluded that it did not establish a complete alibi because the evidence did not preclude the possibility that the appellant committed the offence. That is, the appellant still had a “window of opportunity” in which to sexually assault his cousin. An alibi is not complete unless it is determinative of the guilt or innocence of an accused. See R. v. M.R. 2005 5845 (ON CA), [2005] O.J. No. 883 (C.A.) at paras. 29 – 31. We are of the view that the sentencing judge fully weighed the father’s evidence and was entitled to reject the appellant’s alibi.
[3] The appellant was sentenced to 90 days custody, split between 60 days in open custody and 30 days of supervision, followed by a year of probation. In sentencing, the sentencing judge addressed the purposes governing youth sentencing as articulated in ss. 3 and 38 of the Youth Criminal Justice Act (the “Act”). He emphasized the need for the sentence to promote in the appellant a sense of responsibility for what he had done, acknowledge the harm he had caused the victim and their mutual families, and provide effective rehabilitation. In that regard, we do not see anything inconsistent in the sentence that requires a period of custody followed by supervision. It was open to the sentencing judge to find that a period of custody was necessary to promote a sense of responsibility in the appellant and to provide the most effective opportunity for his rehabilitation.
[4] The sentencing judge concluded that the sexual assault was a violent offence within the meaning of s. 39(1)(a) of the Act. Although a custodial sentence was available the sentencing judge did consider other available options first. He simply found them inappropriate in the circumstances.
[5] Viewed as a whole, the sentencing judge’s reasons do not indicate that the sentence was influenced by the appellant’s and his parent’s denial of guilt as aggravating factors. We accept that the appellant was not in a position of trust in respect of the victim. However, he took advantage of the victim’s trust and the long-standing close family relationship he had with the victim in order to commit the assault; that was a significant aggravating factor. The sentence imposed is within the range of sentences imposed on similar young offenders for similar offences. The sentencing judge in these circumstances, as in any other sentencing situation, is entitled to deference. We see no basis on which to interfere with the sentence as imposed.
[6] Accordingly, the appeal is dismissed, leave to appeal sentence is granted and the sentence appeal is dismissed.
“E. E. Gillese J.A.”
“R. A. Blair J.A.”
“H. S. LaForme J.A.”