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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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. B.F.S., 2008 ONCA 453
DATE: 20080609
DOCKET: C45358
COURT OF APPEAL FOR ONTARIO
MOLDAVER, SIMMONS and ROULEAU JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
B. F.S. (A young person)
Appellant
Timothy E. Breen for the appellant
John McInnes for the respondent
Heard and endorsed: June 5, 2008
On appeal from the order of Justice Michael Tulloch of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated April 12, 2006.
APPEAL BOOK ENDORSEMENT
[1] In the circumstances of this case, we are of the view that the trial judge erred in excluding the complainant’s cross-examination in assessing the admissibility of his disclosure to his mother.
[2] The evidence elicited in cross-examination was clearly relevant, although not necessarily dispostive, of the necessity inquiry.
[3] As the trial judge approached the issue incorrectly, in our view, it will be for the trial judge on the new trial to rule on the admissibility of the mother’s evidence, applying the proper principles. To that extent, we respectfully disagree with the Summary Conviction Appeal Judge’s finding that on the facts of this case, the mother’s evidence should necessarily have been admitted.
[4] We do not however agree with the appellant’s submission that this is an appropriate case in which the proviso can be applied to sustain the acquittal. The mother’s evidence, if admitted, may well have affected the outcome.
[5] In light of this conclusion, we need not address the second ground of appeal, even though we have concerns that the Summary Conviction Appeal Judge may well have gone too far in his assessment of the evidence.
[6] In the result, the appeal is dismissed.