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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.
Court File and Parties
CITATION: R. v. R.H., 2010 ONCA 704
DATE: 2010-10-25
DOCKET: C51515
COURT OF APPEAL FOR ONTARIO
BEFORE: Rosenberg, Cronk and Epstein JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
R.H. Young Person/Appellant
COUNSEL: Paul Calarco, for the young person/appellant Michelle Campbell, for the respondent
Heard and released orally: October 19, 2010
On appeal from the conviction entered by Justice Nancy S. Kastner of the Ontario Court of Justice (Youth Court of Ontario) dated July 30, 2009.
ENDORSEMENT
[1] The appellant was charged with two robberies on two separate days: December 7 and December 10, 2008. The victim in each robbery was a driver delivering fast food. The appellant was found not guilty of the December 7 robbery and guilty of the one that took place on December 10, 2008. He was sentenced to 12 months in custody. He appeals his conviction only.
[2] The only issue at trial was identification. The evidence available to the trial judge on this issue consisted primarily of video surveillance and clothing seized when the appellant was arrested as well as cell phone activity.
[3] In terms of the video surveillance tape of the front of the apartment building where the robbery took place, the trial judge, in her detailed reasons, compared her own observations of the appellant in the courtroom with the person in the video who she found had committed the robbery. Citing R. v. Nikolovski, the trial judge concluded that it was open to her to use this analysis to assist in her determination of whether the accused before her was the person in the video.
[4] The trial judge reviewed all aspects of the observations she was able to make about the person in the video. She specifically considered height, weight, skin colour and clothing. She attached varying degrees of weight to each.
[5] While counsel for the appellant quite rightly submits that the video was of poor quality, the trial judge found that it did provide her with some assistance in her task of determining whether the Crown had proved identity beyond a reasonable doubt.
[6] Upon reviewing the video ourselves, we cannot agree with the submissions of counsel for the appellant that the video was, given its poor quality, little if any value. We conclude that the basis for the trial judge’s reliance on the videotape evidence to the extent that she did was sound.
[7] Furthermore, the videotape evidence did not, as the Crown points out, bear the burden of the prosecution’s case. This takes us to the cell phone evidence upon which the trial judge appears to have placed considerable weight.
[8] The trial judge carefully tracked the evidence of the records themselves, focusing on the telephone number that was established as having been used to set up the robbery and the evidence potentially linking that number to the accused. The trial judge concluded that this evidence was available to assist her in determining if identity had been made out.
[9] Based on the cumulative effect of the available evidence, the trial judge concluded that she was satisfied beyond a reasonable doubt that the accused was the person who committed the December 10 robbery.
[10] It follows that the appellant has failed to satisfy us that the trial judge made any legal or factual errors in her analysis. We therefore see no basis for interfering with her finding of guilt in relation to the December 10 robbery.
[11] The appeal is therefore dismissed.
“M. Rosenberg J.A.”
“E.A. Cronk J.A.”
“Gloria Epstein J.A.”