WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (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.

111. (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.

112. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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 OF APPEAL FOR ONTARIO

CITATION: R. v. D.A., 2012 ONCA 200

DATE: 20120327

DOCKET: C51605

Goudge, MacPherson and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

D.A. (A young person)

Appellant

Mark Sandler and Jonathan Shime, for the appellant

Joanne Stuart, for the respondent

Heard: February 27, 2012

On appeal from the conviction entered on December 1, 2009 by Justice M.F. Khoorshed of the Ontario Court of Justice.

MacPherson J.A.:

A. INTRODUCTION

[1] The appellant D.A. was one of three youths found guilty of extortion by Justice Khoorshed of the Ontario Court of Justice. The appellant was sentenced to probation for a period of one year and 100 hours of community service. He appeals his finding of guilt. His sentence was stayed by order of Weiler J.A. of this court pending the determination of this appeal.

[2] At the conclusion of the hearing, the court announced that the appeal was allowed, with reasons to follow. These are the reasons.

B. FACTS

(1) The parties and events

[3] The appellant was found guilty pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1, of extorting money, contrary to s. 346 of the Criminal Code, from his classmate B.H. in 2007 when they were in grades seven and eight.

[4] The complainant was shy and unpopular. In a misguided attempt to attract attention and make friends, he invented a story that he came from a rich family and began giving away money in various amounts to classmates.

[5] The money that the complainant used to gain popularity with classmates initially came from his personal savings. When that money ran out, the complainant stole money from a box in his mother’s closet containing $4000. This money belonged to his uncle and was being held by his mother for safekeeping. Although the complainant admitted that he willingly provided some of this money to other classmates to keep up his charade of coming from a rich family, the majority of the money went to the appellant and his two associates.

[6] The appellant and the two co-accused were charged with one count of extortion spanning the time period May 1 to October 10, 2007. During the trial, the Crown’s case focused on five aspects of this period. The Crown alleged that:

(1) the appellant and his associates threatened the complainant into bringing hundreds of dollars on a grade seven class trip to the zoo in May 2007 and took a portion of that money;

(2) they regularly threatened the complainant at school after the zoo trip until the end of grade seven into giving them money;

(3) in the summer between grades seven and eight, the appellant and his two associates came, uninvited, to the complainant’s house and stole the complainant’s iPod;

(4) the appellant and his two associates regularly threatened the complainant at school in the fall of grade eight into giving them money; and

(5) several days before the police got involved, the appellant and his associates called the complainant and, in a conversation allegedly overheard by the complainant’s mother, threatened to beat him up if he did not give them money.

[7] The trial lasted ten days. The Crown called six witnesses, including the complainant, his mother, and several classmates who corroborated aspects of the complainant’s evidence relating to the opportunity, location, frequency and manner in which the appellant and his associates threatened the complainant, as well as the complainant’s demeanour during the relevant period.

[8] The defence called 12 witnesses, including other classmates who had not seen any bullying. Some defence witnesses, who included teachers, testified about the good character of the three accused.

[9] The appellant and the co-accused did not testify.

(2) The judgment

[10] The trial judge delivered reasons for judgment totalling 25 pages. The first 24 pages purported to summarize, witness by witness, the trial evidence and the Crown and defence positions. Then the trial judge turned to his analysis, which he set out in about half a page:

These are all the arguments. I cannot possibly look at every single argument but I have summarized the arguments. I have come to one simple conclusion. The behaviour pattern demonstrated by [the complainant] is that of a scared boy. The effects on his education and health are the bi-products of that scare. The story may have changed a bit or may have been reduced or exaggerated a bit but the scare, the fear that he demonstrated cannot be acting. In the sense cannot be artificially created by a boy his age. The parents, the other witnesses, the actual students who saw the force being utilized against him, those factors, in spite of the fact that the three accused were the most popular boys, there is no question [the complainant] was unpopular and not liked. In spite of that there are some students who have come and supported his version. I have come to the conclusion beyond a reasonable doubt that this extortion did take place and all three are found guilty.

C. ANALYSIS

[11] The trial judge acknowledged at the outset of his reasons that the case was a complicated one, requiring careful consideration of the evidence. With respect, what followed completely failed his own litmus test. His half page of analysis was anchored in his belief of the complainant based on his “behaviour pattern”, being that of “a scared boy”, coupled with the fact some classmates (unnamed) had supported the complainant’s story (without explaining how they did so). There was no analysis of the internal contradictions in the Crown evidence or how the trial judge reconciled the many inconsistencies between the Crown and defence evidence. While a trial judge is not obligated to refer to all of the evidence or to exhaustively explain his reasoning process, the combination of unacknowledged evidence supporting the defence position and an almost complete paucity of analysis compel the conclusion that the trial judge failed to consider the whole of the evidence in deciding the case: see R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), at paras. 13, 14, and 18-19.

[12] I can illustrate this conclusion with a couple of striking examples.

[13] First, the trial judge concluded that “this extortion did take place”. The Crown led evidence about five possible extortions. The trial judge did not say which of these grounded his finding of guilt, notwithstanding the serious questions raised by the defence about these five incidents. For example, there was much evidence that the zoo incident did not amount to an extortion: the complainant testified that he had given money away voluntarily on that trip, many other witnesses confirmed that the complainant was giving away money, and no one saw anyone forcibly take money from the complainant. Similarly, there was strong conflicting evidence about the alleged iPod theft. In these circumstances, the trial judge had a duty to state clearly the conduct that, in his view, amounted to the extortion.

[14] Second, the fifth possible extortion set out above was grounded in an alleged telephone conversation between the three accused and the complainant, with confirmation coming from the complainant’s mother’s testimony that she overheard the conversation. However, the complainant said nothing in his statement to police about this telephone call or any conversation with his mother about it. Moreover, the complainant did not mention this call in his examination-in-chief.

[15] Similarly, the complainant’s mother mentioned this call, for the first time, when she went to the police in mid-trial, after her son had been testifying for two days. She did not mention this incident to the police when she gave a statement in October 2007 and only raised it in a second, mid-trial statement to police in January 2009.

[16] The trial judge dealt with none of this context surrounding the alleged telephone call. All he said was that the testimony of “[t]he parents” supported the complainant’s evidence. In light of the obvious problems concerning the timing of the reporting of the telephone conversation by both the complainant and his mother, the trial judge had a duty to provide some analysis to support his general and laconic conclusion.

[17] In the end, we know from the trial judge’s reasons only who he thought had committed the crime of extortion: the appellant and his two co-accused. We do not know the what, when, where or why of the criminal conduct. In any criminal trial, but especially one involving a young offender, this is not good enough. Given this error and its magnitude, it is not necessary to deal with the other arguments raised by the appellant.

D. DISPOSITION

[18] The appeal is allowed and a new trial is ordered.

Released: March 27, 2012 (“S.T.G.”)

“J.C. MacPherson J.A.”

“I agree S.T. Goudge J.A.”

“I agree R.G. Juriansz J.A.”