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.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

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.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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. J.S., 2015 ONCA 767

DATE: 20151110

DOCKET: C59211

Doherty, Pepall and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S., a young person

Appellant

Vincenzo Rondinelli, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally: November 5, 2015

On appeal from the convictions entered by Justice Heather Katarynych of the Ontario Court of Justice, dated August 20, 2013.

ENDORSEMENT

The Sexual Assault Conviction (Count 3)

[1] The appellant was convicted as an aider and abetter on the basis that he assisted his two friends in the very serious sexual assault of the victim committed by them in the bedroom.

[2] Counsel submits that the trial judge convicted on the basis that the appellant was a party to a plan with his two friends from the outset of the evening’s activities to sexually assault the victim. Counsel argues that the factual inferences drawn by the trial judge to justify that finding are unreasonable.

[3] In our review of the reasons, it is unclear whether the trial judge found that the appellant knew from the outset that his two friends intended to sexually assault the victim and that the appellant intended to assist in that sexual assault. However, we think it is irrelevant to the validity of the verdict on this count whether the trial judge made that finding.

[4] It is clear from the evidence that the trial judge did make the following factual findings:

• the appellant and his two friends carried the victim up the stairs to the bedroom where the assaults occurred. She was intoxicated and unable to stand;

• while the appellant and his friends were carrying the victim up the stairs, one of the two friends was attempting to pull the victim’s pants down;

• the appellant and his two friends took the victim into the bedroom and closed (and perhaps locked) the bedroom door;

• the appellant’s two friends immediately and repeatedly attacked and raped the victim over a period of about one-half hour;

• the appellant sat and watched this activity;

• the appellant chatted with each of his friends as they “took a break” from their attacks on the victim; and

• the appellant’s friends stopped the attacks only when the appellant told them to do so.

[5] These facts admitted of only one reasonable inference. The appellant knew when he was taking the victim up the stairs that his friends intended to sexually assault her in the bedroom. In taking her up the stairs, he intended to assist his friends in the commission of that sexual assault.

[6] The verdict on this count was entirely justified on those findings regardless of any findings in relation to the earlier activities.

The Unlawful Confinement Count (Count 6)

[7] Counsel for the appellant concedes, properly in our view, that if the sexual assault in relation to the attack in the bedroom stands, he cannot successfully challenge the conviction on the unlawful confinement count. That charge relates to the confinement of the victim during the sexual assault in the bedroom. The conviction on that count stands.

The Conviction in Relation to the “Tickling Incident” (Sexual Assault Count 1, Touching for a Sexual Purpose Count 2)

[8] In the course of her reasons, the trial judge found that the appellant did not touch the victim during the sexual assaults. The trial judge convicted on this count on the basis that the appellant aided and abetted his friends who did touch the victim in the course of what is referred to as the “tickling incident”.

[9] The trial judge did not analyze the evidence on this count in her reasons. There is no question that the appellant was present when his friends sexually assaulted the victim by touching her breasts and inner thigh area. There is evidence from which one could infer that he encouraged his friends to do so by his conduct. However, without any analysis, we cannot identify the basis upon which the trial judge reached the conclusion that the appellant aided and abetted his friends. Certainly, it cannot be said that a finding that the appellant aided or abetted his friends in this assault was inevitable on the evidence.

[10] We would quash the conviction on count 2 and set aside the “Kienapple” stay on count 1. The Crown is entitled to a new trial on counts 1 and 2, if so inclined. We note, however, that the sentence has been served.

[11] The appeal on counts 1 and 2 is allowed, the convictions are quashed, and a new trial is ordered. The appeal is otherwise dismissed.

“Doherty J.A.”

“S.E. Pepall J.A.”

“David Brown J.A.”