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Section 138(1): Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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: 2017-11-29

Docket: C60393

Judges: Watt, Hourigan and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

O.N. Appellant

Counsel

Janani Shanmuganathan, for the appellant

Jennifer Mckee, for the respondent

Heard and released orally: November 23, 2017

On appeal from: the conviction entered on January 20, 2015 by Justice Salvatore Merenda of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] The appellant appeals from convictions of assault; using an imitation firearm in committing an offence; threatening to cause bodily harm and carrying a concealed weapon. The offences arise out of an altercation said to have occurred in a washroom at a secondary school.

[2] The evidence about what occurred in the washroom was given by its three principals: the complainant, the appellant and the appellant's co-accused. If believed, the complainant's account proved the offences alleged. The testimony of the appellant and co-accused denied any such altercation occurred.

[3] The appellant advances two grounds of appeal. He says that the trial judge erred:

i. in applying a different standard of scrutiny to the evidence of the complainant than that he applied to the exculpatory testimony of the appellant and co-accused; and

ii. in misapprehending the evidence, by making adverse findings that were based on impermissible speculation rather than permissible inference.

Ground #1: Uneven Scrutiny

[4] To succeed on an argument about uneven scrutiny, the appellant must identify something in the trial judge's reasons or elsewhere in the record that makes it clear that the trial judge actually applied different levels of scrutiny in assessing the evidence of the appellant and co-accused, on the one hand, and the complainant on the other. It is not enough to show that the trial judge could have calibrated the evidence differently and reached a different conclusion.

[5] Often, as here, this argument about uneven scrutiny moves in a circle. The judge believed X. The judge didn't believe Y. But the judge could have believed Y. Therefore, the judge applied a different standard of scrutiny. Not so, according to the authorities. The complaint here is with the conclusion, not the underlying analysis.

[6] We reject this ground of appeal.

Ground #2: Speculation or Inference

[7] The appellant also contends that the trial judge erred in basing his conclusions on impermissible speculation rather than reasonable inference.

[8] In connection with this ground of appeal, the appellant fastens on the distinction, as I have said, between permissible inference, on the one hand, and impermissible speculation, on the other. He says that the trial judge speculated about three things:

i. the appellant's knowledge of the complainant's presence in the washroom when the assault occurred;

ii. the reason the appellant did not engage the complainant during a previous chance encounter in the washroom was because he (the appellant) lacked the "muscle" of the co-accused; and

iii. the "avoidance" of each other during the previous chance encounter in the washroom.

[9] In our view, this ground of appeal fails for the simple reason that these conclusions of the trial judge fell within the field of inferences reasonably available from the evidence adduced at trial taken as a whole.

[10] The trial judge accepted the complainant's evidence about what occurred in the washroom. The joint entry of the appellant and co-accused. The immediate attack. The production of the handgun or imitation. The reference to the previous encounter. It was a reasonable inference that the attack was planned and executed at a place where there were no surveillance cameras. The same may be said about the other two complaints. The appellant never engaged the complainant on any occasion, including the chance washroom encounter, when he, the appellant, and the complainant were alone. He avoided the complainant despite his obvious recognition of him and his association with the initial encounter. This ground also fails.

Conclusion

[11] The appeal is dismissed.

"David Watt J.A." "C.W. Hourigan J.A." "B.W. Miller J.A."