



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    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless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    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure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

CITATION: R. v. J.S., 2015 ONCA 767

DATE: 20151110

DOCKET: C59211

Doherty, Pepall and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S., a young person

Appellant

Vincenzo Rondinelli, for the appellant

Andreea Baiasu, for the respondent

Heard and released orally:  November 5, 2015

On appeal from the convictions entered by Justice Heather
    Katarynych of the Ontario Court of Justice, dated August 20, 2013.

ENDORSEMENT

The Sexual Assault Conviction (Count 3)

[1]

The appellant was convicted as an aider and abetter on the basis that he
    assisted his two friends in the very serious sexual assault of the victim
    committed by them in the bedroom.

[2]

Counsel submits that the trial judge convicted on the basis that the
    appellant was a party to a plan with his two friends from the outset of the
    evenings activities to sexually assault the victim.  Counsel argues that the
    factual inferences drawn by the trial judge to justify that finding are
    unreasonable.

[3]

In our review of the reasons, it is unclear whether the trial judge
    found that the appellant knew from the outset that his two friends intended to
    sexually assault the victim and that the appellant intended to assist in that
    sexual assault.  However, we think it is irrelevant to the validity of the
    verdict on this count whether the trial judge made that finding.

[4]

It is clear from the evidence that the trial judge did make the
    following factual findings:

·

the appellant and his two friends carried the victim up the
    stairs to the bedroom where the assaults occurred.  She was intoxicated and
    unable to stand;

·

while the appellant and his friends were carrying the victim up
    the stairs, one of the two friends was attempting to pull the victims pants
    down;

·

the appellant and his two friends took the victim into the
    bedroom and closed (and perhaps locked) the bedroom door;

·

the appellants two friends immediately and repeatedly attacked
    and raped the victim over a period of about one-half hour;

·

the appellant sat and watched this activity;

·

the appellant chatted with each of his friends as they took a
    break from their attacks on the victim; and

·

the appellants friends stopped the attacks only when the
    appellant told them to do so.

[5]

These facts admitted of only one reasonable inference.  The appellant
    knew when he was taking the victim up the stairs that his friends intended to
    sexually assault her in the bedroom.  In taking her up the stairs, he intended
    to assist his friends in the commission of that sexual assault.

[6]

The verdict on this count was entirely justified on those findings
    regardless of any findings in relation to the earlier activities.

The Unlawful Confinement Count
    (Count 6)

[7]

Counsel for the appellant concedes, properly in our view, that if the
    sexual assault in relation to the attack in the bedroom stands, he cannot
    successfully challenge the conviction on the unlawful confinement count.  That
    charge relates to the confinement of the victim during the sexual assault in
    the bedroom.  The conviction on that count stands.

The Conviction in Relation to the
    Tickling Incident (Sexual Assault Count 1, Touching for a Sexual Purpose Count
    2)

[8]

In the course of her reasons, the trial judge found that the appellant
    did not touch the victim during the sexual assaults.  The trial judge convicted
    on this count on the basis that the appellant aided and abetted his friends who
    did touch the victim in the course of what is referred to as the tickling
    incident.

[9]

The trial judge did not analyze the evidence on this count in her
    reasons.  There is no question that the appellant was present when his friends
    sexually assaulted the victim by touching her breasts and inner thigh area. 
    There is evidence from which one could infer that he encouraged his friends to
    do so by his conduct.  However, without any analysis, we cannot identify the
    basis upon which the trial judge reached the conclusion that the appellant
    aided and abetted his friends.  Certainly, it cannot be said that a finding
    that the appellant aided or abetted his friends in this assault was inevitable
    on the evidence.

[10]

We would quash the conviction on count 2 and set aside the 
Kienapple

    stay on count 1. The Crown is entitled to a new trial on counts 1 and 2, if so
    inclined.  We note, however, that the sentence has been served.

[11]

The appeal on counts 1 and 2 is allowed, the convictions are quashed, and
    a new trial is ordered.  The appeal is otherwise dismissed.

Doherty J.A.

S.E. Pepall J.A.

David Brown J.A.


