WARNING

THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

Section 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.

Section 110(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.

Section 110(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.

Section 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.

Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records)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

Date: 2017-03-24

Docket: C60398

Judges: Doherty, Huscroft and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

J.T. Appellant

Counsel

For the Appellant: Najma Jamaldin and Paul Genua

For the Respondent: Andrew Cappell

Heard: March 23, 2017

On appeal from: The sentence imposed by Justice Donna G. Hackett of the Ontario Court of Justice on April 17, 2015.

Appeal Book Endorsement

[1] This is an appeal from conviction. The appellant must convince the court that the trial judge erred in her assessment of whether the appellant's section 8 rights were breached in the circumstances of this case.

[2] The trial judge found that the level 3 search was reasonable save for the "squat and cough" requirement at the end of the search. She concluded that this procedure was unreasonable in the circumstances.

[3] The trial judge thoroughly reviewed the evidence. She concluded that the search was justified to locate the property of the victim and because of safety concerns associated with the transportation of the appellant to court for a show cause hearing.

[4] We see no error in her findings. The police had good reason to suspect that the appellant was in possession of property related to the robbery and that it could be secreted anywhere on her person. Furthermore, on the facts of this case, the police cannot be criticized for concluding that any release of the appellant should be by way of a judicial order which could properly address the adequacy of any supervision that might be available before releasing the appellant back into the community.

[5] The Crown does not challenge the finding that the "squat and cough" technique rendered the conduct of the search unreasonable. Nor does the Crown challenge the reduction of the sentence granted by the trial judge as a remedy under section 24(1).

[6] The appellant suggests that a stay should have been granted. This argument is premised on submissions which target alleged systemic deficiencies, none of which affected the reasonableness of this search except as it related to the "squat and cough". A stay is an extreme remedy.

[7] In our view, the remedy chosen by the trial judge properly addressed the breach in this case. We see no reason to interfere with the trial judge's exercise of her discretion as to the appropriate remedy.

[8] The appeal is dismissed.