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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.H., 2011 ONCA 207
DATE: 20110316
DOCKET: C51621
COURT OF APPEAL FOR ONTARIO
Simmons, Rouleau and Karakatsanis JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J.H. (A Young Person)
Appellant
Theodore Sarantis, for the appellant
Matthew Asma, for the respondent
Heard & released orally: March 11, 2011
On appeal from the conviction entered and the sentence imposed by Justice Minoo F. Khoorshed of the Ontario Court of Justice on November 19, 2009 and December 1, 2009.
ENDORSEMENT
[1] The appellant was charged with two counts of robbery and four counts of breach of recognizance as well as failing to comply with a probation order. He was 16 years old at the time of the alleged offences.
[2] The complainant was a 22 year old with an intellectual disability and, according to the complainant, the appellant had bullied and robbed him in the past. After a voir dire at which the complainant’s mother and a police officer testified, the complainant was allowed to testify from behind a screen because he was fearful of the appellant.
[3] The appellant was convicted of one count of robbery and of the breach and fail to comply charges. He was sentenced under the Youth Criminal Justice Act to five months, two-thirds in secure custody and one third under community supervision, plus two years probation. This was in addition to receiving credit for 99 days of pre-trial custody.
[4] The appellant appeals both conviction and sentence. He argues that the trial judge erred by misapplying the reasonable doubt standard, by failing to give sufficient reasons for rejecting the appellant’s evidence and by using evidence adduced during the voir dire in reaching his decision on the trial proper.
[5] With respect to sentence, the appellant submits that the sentence imposed was manifestly unfit as the trial judge did not adequately consider whether a less severe alternative to the five months sentence was appropriate.
[6] In our view, the third ground raised on the conviction appeal is dispositive. We agree with the appellant that the trial judge ought not to have referred to the voir dire evidence in his reasons for judgment. Although the trial judge said that his use of the evidence would be narrowly circumscribed and would be for the limited purpose of helping him understand the victim’s demeanour in light of his intellectual disability, this use was improper.
[7] The Crown argues that the trial judge’s limited use of the voir dire evidence caused no prejudice because, reading the record as a whole, it is apparent that the trial judge was able to make substantially the same observation concerning the complainant based on the complainant’s trial evidence.
[8] We disagree. As an example of the improper use that causes us concern, we note that, after reciting much of the mother’s evidence led at the voir dire, including the mother’s testimony as to an alleged statement made by the appellant, the trial judge stated as follows:
We have to look at this particular statement only for one purpose; to see how the statements made by the victim to the mother correspond with the statements made in court, and that is not for their accuracy, but to see the thinking pattern of the victim himself who has certain learning disabilities.
[9] On our reading of the trial judge’s reasons, it appears that he used the voir dire evidence to bolster his assessment of the complainant’s credibility. That assessment is at the root of his decision and therefore, the appeal must be allowed.
[10] As a result, the convictions are set aside and a new trial is ordered.
“Janet Simmons J.A.”
“Paul Rouleau J.A.”
“Karakatsanis J.A.”