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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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. Y.N., 2007 ONCA 668
DATE: 20070928
DOCKET: C45301
COURT OF APPEAL FOR ONTARIO
MOLDAVER, SHARPE and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
Y.N.
Appellant
Michael Dineen for the appellant
Andrew Cappell for the respondent
Heard and endorsed: September 25, 2007
On appeal from conviction by Justice Nancy S. Kastner of the Ontario Court of Justice dated October 14, 2005 and sentence imposed dated March 9, 2006.
APPEAL BOOK ENDORSEMENT
[1] The eyewitness identification evidence in this case was somewhat confused. As the trial judge recognized, on its own, it was incapable of supporting a conviction.
[2] In order to convict, the trial judge quite properly looked for confirmatory evidence. In doing so, she relied on the similarity of the signatures on the credit card slips used after the robbery and the signature used sixteen hours later on the slip bearing the appellant’s fingerprint. With respect, this reflects a misapprehension of the evidence.
[3] The early morning slips were not tendered as evidence and the expert’s report describing them stated there was an “insufficient amount of comparable features” and this “precluded an identification or elimination”.
[4] While there was clearly evidence capable of supporting a conviction, we cannot say with the required degree of certainty that the verdicts on counts 1, 2 and 3 would necessarily have been the same but for the misapprehension. The misapprehension was potentially highly prejudicial. If accurate, it essentially sealed the appellant’s fate.
[5] Accordingly, the appeal is allowed, the verdicts on counts 1, 2 and 3 are set aside and a new trial is ordered.