WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(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.

111. Identity of victim or witness not to be published. — (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.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(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 Information

Court File No.: Region of Durham 998 10 Y26006

Date: 2012-04-11

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— and —

G.J.

Before: Justice J. De Filippis

Heard on: (Date not specified)

Reasons for Judgment Ruling released on: April 11, 2012

Counsel:

• Ms Jackson for the Crown
• Mr. Romain for G.J.

Judgment

De Filippis, J.:

[1] The defendant was charged with 17 offences arising from three robberies that he allegedly committed with K.T.. Both are youths within the meaning of the Youth Criminal Justice Act. The latter pled guilty to the robberies after I dismissed an application to stay proceedings on the basis of unreasonable delay. The fact of the robberies is not in dispute. They occurred in the late evening of June 22 and early morning of June 23, 2010 at three fast food outlets in Oshawa: Subway, Pizza Pizza, and Pizza Nova. At each location, several hundred dollars was taken from the cash register and/or customers by two persons wearing hoodies and bandanas. They are captured on surveillance cameras and described by witnesses but all that can be said is that they appear to be young, male, and black. The issue at this trial is whether the defendant is the other young black man in question.

[2] This trial has had a somewhat torturous history. On the eve of trial, the Crown withdrew charges against a third co-accused and during the trial abandoned its prosecution of other robberies allegedly involving the defendant. Moreover, the defendant brought several motions at the start of trial and both parties did so during the trial. All that need be said at this time about these proceedings is that for reasons previously given, I excluded statements taken by the police from the defendant and Mr. K.T. because of violations of s. 146 of the Youth Criminal Justice Act. Consequently, and having regard to the trial testimony of Mr. K.T., the only admissible evidence implicating the defendant is a prior statement made by Mr. K.T. that I admitted pursuant to the principled exception to the hearsay rule. In the result, I conclude that that evidence is insufficient proof of the defendant's guilt.

[3] Mr. K.T. was called as a witness by the Crown. The video recordings made by surveillance cameras for the three robberies were played. Mr. K.T. acknowledged these are the robberies to which he pled guilty. He testified that he is one of the masked assailants captured on camera and that he and his accomplice went into the establishments with a "plan to get money". In each case, however, he added that he could not remember the identity of his accomplice. The Crown tried to refresh the memory of Mr. K.T. by reference to a prior videotaped statement he made to police and the transcript of his guilty plea. This failed. When Crown counsel directed his attention to a portion of the guilty plea transcript in which the accomplice is named, Mr. K.T. testified that this was of no assistance because "that's just what I pleaded to". When asked if the accomplice in all three robberies was the same person, Mr. K.T. said "it should be the same person". He acknowledged knowing the defendant and said he lives near his home. Mr. K.T. concluded his testimony in chief by stating that he did not commit the offences with the defendant.

[4] The Crown argued that Mr. K.T.'s guilty plea amounted to a prior statement by him and sought to tender it pursuant to the principled exception to the hearsay rule. This is commonly referred to as a "KGB Application". See: R v B. (K.G.), [1993] 1 S.C.R. 740. In R v Tran, 2010 ONCA 471, the Ontario Court of Appeal said a guilty plea in which a person accepts facts read in as "substantially correct" will rarely be a prior statement within the meaning of KGB because its reliability is fraught with danger. However, in Youvarajah, 2011 ONCA 654, the same court found that where the guilty plea consisted of a previously signed agreed statement of facts, it constituted a prior statement by the defendant and capable of being the subject of a KGB Application. I ruled that Mr. K.T.'s guilty plea came within the principle set out in Youvarajah because, through counsel, he specifically adopted all facts read in as correct, including the fact that the defendant was his accomplice in the three robberies. This, along with the solemn circumstances in which the guilty plea was received persuaded me that the statement met the criteria of threshold reliability. Moreover, I found that Mr. K.T. effectively recanted that statement insofar as it described activities by the defendant.

[5] The guilty plea was followed by a joint submission by the parties that the pre-sentence custody be noted and a probation order be issued. My acceptance of this joint submission meant that Mr. K.T. was released from custody. Several months later, when he testified at these proceedings he was back in custody, having been arrested for possession of a firearm.

[6] The difficulty for the Crown in this case is that although, as I previously ruled, the guilty plea meets the criteria of necessity and threshold reliability, it does not meet that of ultimate reliability. Mr. K.T. testified that he was not paying attention as the facts read onto the record on his guilty plea because he was focussed on the joint submission that would result in him being freed from jail that day. He added that he did not intend to implicate the defendant, was not warned of the consequences of lying and unaware he would be called as a witness.

[7] Mr. K.T. testified on several occasions during this trial, including at voir dires. Although he freely admitted his involvement in the robberies, he was short on details and evasive when questioned by the Crown. The cross-examination by defence counsel was a friendly one in which Mr. K.T. agreed with almost any assertion of the defendant's innocence. I am mindful of this dynamic and understand the implications.

[8] I find that Mr. K.T. lied to me about not remembering who committed the robberies with him. I also find he lied in claiming he was not paying attention at his guilty plea proceedings when that accomplice was identified as the defendant. I have no doubt he knows the identity of his partner in crime and that he was being asked at his guilty plea to confirm it was the defendant. I am less sure he appreciated the long term impact of these admissions with respect to the defendant. Mr. K.T. knew his guilty plea would lead to joint submission of time served and he was focussed on that. I cannot be certain he did not implicate the defendant out of convenience. In any event, everything I know about Mr. K.T., including his evidence at this trial, convinces me he is a disreputable person who is capable of much deceit to advance his own interests. I need not cite examples of this; the entire transcript of his testimony at this trial bears witness to his character. He is perfectly capable of carelessly or falsely agreeing to the defendant's role in the robberies to suit his purposes, especially, as is likely here, he did not believe he would be called to testify about it later. It would not be safe to convict solely on the basis of admissions made by Mr. K.T. about the defendant, at another proceeding.

[9] The Crown must prove guilt beyond a reasonable doubt. That standard has not been met in this case. Although I would not declare the defendant to be innocent, I cannot conclude he is guilty.

[10] The charges are dismissed.

Released: April 11, 2012

Signed: Justice J. De Filippis