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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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. J.S., 2009 ONCA 812
DATE: 20091117
DOCKET: C50189
COURT OF APPEAL FOR ONTARIO
O’Connor A.C.J.O., Cronk and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
J.S. (A Young Person)
Respondent
Gavin MacDonald, for the appellant
J.S., in person
Heard and released orally: November 12, 2009
On appeal from the sentence imposed by Justice Louise Botham of the Ontario Court of Justice, sitting as a Youth Court Justice, on February 11, 2009.
ENDORSEMENT
[1] The Crown appeals the disposition of 12 months’ probation imposed by the youth court justice, essentially on the ground that it fails to meet the sentencing objectives set out in the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “Act”).
[2] We agree that the sentence imposed was inadequate in the circumstances of this case. This was a serious crime. The respondent and an accomplice robbed the lone operator of a convenience store late at night. They both wore masks and black clothes. The respondent threatened the store clerk with an imitation firearm, while his companion was in possession of a knife. The youth court justice’s disposition of 12 months’ probation failed to recognize the seriousness of this offence. It also failed to properly address the requirement that the respondent be held accountable for his actions and that meaningful consequences for the respondent flow from the sentence imposed. As a result, the youth court justice erred in principle and her disposition was unfit.
[3] In addition, we agree with the Crown that the Youth Court judge erred in law in failing to grant a DNA order under s. 487.051(1) of the Criminal Code. By the time of the respondent’s sentencing hearing, this order was mandatory for this offence.
[4] It therefore falls to this court to determine a fit disposition. Crimes of this nature normally call for a significant custodial term. However, the record establishes that the respondent is committed to and has made exceptional rehabilitative progress during the nine months since his sentencing hearing. Throughout, he has enjoyed the steadfast support of his father, who again attended court today with the respondent. In our view, the respondent is fortunate to have that support, which undoubtedly has contributed positively to the turnaround in the respondent’s life. The respondent’s rehabilitative transformation, the extent of which the Crown did not challenge in this court, merits significant consideration in mitigation.
[5] In all these circumstances, the Crown responsibly proposes that the probationary disposition imposed by the youth court justice be set aside and that a disposition of three months’ deferred custody, followed by one year probation, be substituted in its stead. We regard this proposal as eminently reasonable and fit on the facts of this case.
[6] Accordingly, leave to appeal sentence is granted and the sentence appeal is allowed. The youth court justice’s disposition is set aside and a disposition of three months’ deferred custody, followed by 12 months probation, is imposed. The terms of the respondent’s deferred custody shall be in accordance with s. 105(2) of the Act. In addition, the respondent shall be entitled to attend school during his sentence in accordance with s. 105(3)(c) of the Act, on terms to be agreed with the Crown.
[7] Finally, we order that the respondent provide a DNA specimen under the authority of s. 487.051(1) of the Code, in accordance with arrangements to be agreed on with Crown counsel.
“D. O’Connor A.C.J.O.”
“E.A. Cronk J.A.”
“David Watt J.A.”