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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15
CITATION: R. v. D.M., 2009 ONCA 553
DATE: 20090707
DOCKET: C50372
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., MacPherson and Cronk JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
D.M. (A Young Person)
Appellant
R. Craig Bottomley, for the appellant
Paul Lindsay, for the respondent
Heard and released orally: July 6, 2009
On appeal from the finding of guilt entered on October 27, 2008, and the disposition imposed on December 3, 2008 by Justice Robert P. Main of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant appeals his conviction and sentence for assault and sexual assault.
[2] On the conviction appeal, the appellant contends that the trial judge misapplied R. v. W.D., specifically by not referring to or applying the second branch.
[3] We disagree. The W.D. analysis is a functional, not a formulaic, analysis: see R. v. Y(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5 at paras. 6-9. In our view, the trial judge’s reasons, read as a whole, establish that he understood the W.D. analysis and dealt appropriately with the testimony of the various witnesses, including the appellant.
[4] The appellant submits that the trial judge engaged in prohibited propensity reasoning by describing the appellant as “pathologically jealous, seething with violence, self-centered, manipulative and violent.”
[5] We disagree. The testimony of witnesses, including the complainant’s mother, and especially the e-mails the appellant sent to the complainant, support this description of the appellant. The trial judge did not use this description to find that the appellant was more likely to commit the offences; rather his reasons, when read as a whole, establish that he used it to show the context and dynamics of the relationship within which the offences occurred.
[6] On the sentence appeal, the appellant contends that the trial judge made no finding that the assault was a “violent offence” within s. 39(1)(a) of the Youth Criminal Justice Act.
[7] We disagree. There was evidence from the complainant and her mother that the assault caused bruising to the complainant. This brings the assault within s. 39(1)(a) of the YCJA.
[8] The appellant submits that the eight-month global sentence was too high, given that the effect of this sentence, when coupled with a one-day sentence imposed on the appellant in adult court on the same day, was that he would serve his entire sentence in an adult rather than a youth facility.
[9] Although we can see no error in the reasons for sentence in this youth case, we are sympathetic to the reality that the appellant has now served seven months and one week of his eight-month sentence in an adult facility, a place no one – the Crown, defence counsel and the trial judge – intended. In these unique circumstances, and without questioning the fitness of a global eight-month sentence, we would allow the sentence appeal and impose a sentence of time served which, we repeat, is seven months and one week. In all other respects, the sentence remains in effect.
“D. O’Connor A.C.J.O.”
“J.C. MacPherson J.A.”
“E.A. Cronk J.A.”