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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.
CITATION: R. v. R.H.S., 2007 ONCA 311
DATE: 20070424
DOCKET: C41578
COURT OF APPEAL FOR ONTARIO
LASKIN, SIMMONS and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
R.H.S. (a Young Person)
Appellant
Kenneth S. Marley, for the Appellant
Michelle Campbell, for the Respondent
Heard: April 19, 2007
On appeal from the disposition imposed on July 30, 2003 by Justice Douglas W. Phillips of the Ontario Court of Justice.
APPEAL BOOK ENDORSEMENT
[1] We are satisfied that the trial judge was correct in holding that the paint-gun fell within the definition of “firearm” in section 2 of the Criminal Code.
[2] However, we are also of the view that the trial judge erred in law in stating the fault requirement necessary to found a conviction under s. 86(1) of the Code. The trial judge applied a negligence standard. The correct standard is “a marked departure from the standard of care of a reasonable person in the circumstances.” See, for example, R. v. Finlay, 1993 63 (SCC), [1993] 3 S.C.R. 103. As the trial judge erred in law, the only remaining question is whether we should apply the proviso. We decline do to so.
[3] Misstating the fault requirement is a serious error and we think it is best for the trier of fact to determine whether the accused’s conduct amounts to a marked departure.
[4] Accordingly, the appeal is allowed, the conviction is set aside and a new trial is ordered.