Publication Ban Warning

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to have been committed by a young person. 138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records)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

DATE: 20211116 DOCKET: C68072

Doherty, Pardu and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Applicant (Appellant)

and

J.Z. Respondent

Counsel: Erin Carley, for the Crown applicant (appellant) Ricardo Golec, for the respondent

Heard and released orally: November 12, 2021

On appeal from the sentence imposed by Justice Brian Weagant of the Ontario Court of Justice (Youth Justice Court) on January 24, 2020.

Reasons for Decision

[1] The Crown applicant alleges the trial judge misinterpreted s. 39(1)(d) of the Youth Criminal Justice Act (“YCJA”) and failed to impose a custodial sentence despite having determined that this was “an exceptional case” under s. 39(1)(d). The Crown submits that, having made that determination, the trial judge was required to impose a custodial sentence.

[2] We cannot accept this interpretation. The proper interpretation of the section is found in R. v. R.E.W. (2006), 205 C.C.C. (3d) 183, at para. 43. Rosenberg J.A. said:

The scheme of the YCJA suggests that the exceptional case gateway can only be utilized in those very rare cases where the circumstances of the crime are so extreme that anything less than custody would fail to reflect societal values. It seems to me that one example of an example of an exceptional case is when the circumstances of the offence are shocking to the community. [Emphasis added.]

[3] The trial judge, although cognizant of the serious nature of the offence, determined that this was not a case in which only a custodial sentence could reflect societal values and, more specifically, the purposes and principles in s. 38 of the YCJA.

[4] It was open to the trial judge to make that assessment. We see no error in principle in his conclusion. Given the trial judge’s assessment, he properly declined to impose a custodial sentence under s. 39(1)(d) of the YCJA. Leave to appeal is granted and the appeal is dismissed.

“Doherty J.A.”

“G. Pardu J.A.”

“J.A. Thorburn J.A.”