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138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.
WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
Court File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20230908 DOCKET: C70738
Hourigan, Paciocco and Nordheimer JJ.A.
BETWEEN
His Majesty the King Respondent
and
I.A. Appellant
Counsel: Brian Snell, for the appellant Dana Achtemichuk, for the respondent
Heard: September 6, 2023
On appeal from the convictions entered on February 4, 2021 and the sentence imposed on July 9, 2021 by Justice A. Thomas McKay of the Ontario Court of Justice.
REASONS FOR DECISION
[1] The appellant, a young person, was convicted of sexual assault and unlawful confinement. He raises multiple grounds of appeal on his conviction appeal and also seeks leave to appeal sentence. At the conclusion of the hearing, we allowed the conviction appeal and ordered a new trial with reasons to follow. These are our reasons.
[2] The facts underlying the offences may be briefly stated as follows. The 14‑year-old complainant alleged that she was sexually assaulted by several young men in her home. She was at home with her brother when three young men (N.A., M.K., and the appellant) came over. At one point, the complainant, the three young men, and her brother were together in her bedroom. The complainant alleges that the young men told her brother to leave her bedroom and prohibited her from exiting her room. She further testified that N.A. and one of the other young men, who the complainant thinks was the appellant, took turns sexually assaulting her in the room. She testified that each of those two sexual assaults occurred while the other two young men were outside.
[3] The complainant alleges that later, two more young men arrived at her home. Each of these young men also took turns sexually assaulting the complainant while the others remained outside of the bedroom. The complainant was eventually able to leave the room. She saw all five of the young men in the hallway and her brother in his room. The five young men then ran out of the house.
[4] As mentioned, the appellant has advanced multiple grounds of appeal. However, it is only necessary to deal with one ground of appeal, that we agree has been made out, namely, that the trial judge did not provide an adequate pathway in his reasons to support his convictions. Therefore, his reasons are insufficient because they do not permit appellate review.
[5] A critical issue in this case was what role, if any, the appellant played in the sexual assaults and confinement of the complainant. Was he a principal, did he aid or abet, or was he simply a bystander? The trial judge instructed himself on the law regarding parties as follows:
Section 21 of the Criminal Code provides that everyone is a party to an offence who actually commits it; does or omits anything for the purpose of aiding any person to commit it; or abets any person in committing it. Abetting simply means encouraging. Merely being present is not enough, unless presence is accompanied by such additional factors as the prior knowledge that the principal was going to commit the offence. Passive acquiescence is not sufficient. There must be more. For example: encouragement of the principal; performing an act that facilitates the commission of the offence; or performing an act which tends to prevent or hinder interference with accomplishment of the criminal act.
The section goes on to indicate that where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offense would be a probable consequence of carrying out the common purpose is a party to that offence.
[6] We observe that the statement “Merely being present is not enough, unless presence is accompanied by such additional factors as the prior knowledge that the principal was going to commit the offence” is incorrect at law because even a bystander with previous knowledge that an offence may occur is still not culpable unless he also engaged in some act of aiding or abetting, with the requisite intention.
[7] The trial judge’s analysis of the basis on which he found the appellant guilty as a party to the offences was limited to a single paragraph. He stated:
I find that the Crown has proven beyond a reasonable doubt that [the complainant] was sexually assaulted in her home by the young men who entered the home. The assaults culminated in forced vaginal intercourse and forced fellatio. The Crown has not proven beyond a reasonable doubt specifically what portion of the assault was carried out by [the appellant]. However, the three young men who initially attended the home, including [the appellant], were engaged in a common purpose – having sex with [the complainant], whether she consented or not. At least one of the three young men then invited two additional young men to join them in that purpose. The young men took turns assaulting [the complainant] while some of them kept an eye on her brother so that he could not interfere. All five young men were aware of what was happening and were parties to the offence.
[8] Given that the complainant was unable to identify which of the three young men sexually assaulted her, the trial judge reasonably concluded that the appellant was not a principal. It would appear from this analysis that the trial judge found that the appellant was a party to the offences – an aider or abettor – but he did not specify how the appellant aided or abetted the commission of the offences. Indeed, nowhere in his reasons does the trial judge make a finding regarding what it is that the appellant did that made him culpable as an aider or abettor. For example, there is no finding that the appellant was one of the persons who prevented the appellant’s brother from intervening. Nor is this a case where there was a finding that everyone present participated in the offence, although the precise roles that each performed are unknown.
[9] It is sometimes possible to identify the basis for a trial judge’s legal conclusions through the record as a whole, but that is not possible here because there are realistic indications that the trial judge may have concluded he could convict without making findings about acts of aiding or abetting. Specifically, the trial judge may have acted on the erroneous statement of law identified in para. 6 of these reasons, based on his finding – wholly unsupported by the evidence – that the appellant had prior knowledge that the complainant was going to be sexually assaulted along with his finding that the appellant was present. Or, it may have been that the trial judge was importing the notion of common purpose in s. 21(2) of the Criminal Code , R.S.C. 1985, c. C-46 when, at one point, he referenced the common purpose of the three young men who originally attended at the complainant’s home. If so, that reference was inapplicable because the subsection is limited to situations where the parties have a common intention to commit one crime and in the commission of that crime another offence is committed.
[10] In summary, there must be a factual finding that supports the conclusion that an accused is a principal, aider, or abettor. Otherwise, a mere bystander with previous knowledge of a crime could be convicted. The reasons do not permit proper appellate review because they do not articulate the basis for finding that the appellant was a party to the offences.
[11] It is for these reasons that we allowed the conviction appeal and ordered a new trial.
“C.W. Hourigan J.A.”
“David M. Paciocco J.A.”
“I.V.B. Nordheimer J.A.”