



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    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access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    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no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. G.E., 2018 ONCA 740

DATE: 20180910

DOCKET: C65422

Lauwers, Pardu and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

G.E.

Appellant

G.E., acting in person

Breana Vandebeek, duty counsel

Nicole Rivers, for the respondent

Heard and released orally: September 5, 2018

On appeal from the finding of guilt entered on March 20,
    2018 and the disposition imposed on April 27, 2018 by Justice Thomas P. Cleary
    of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

G.E., a youth, was discovered in possession of a loaded handgun and a
    bag containing many rounds of ammunition. He was in the company of
    approximately a dozen other youths.

[2]

After G.E. was charged he was released on a recognizance prohibiting him
    from possessing firearms or ammunition. As the result of an unrelated wiretap less
    than 3 weeks later, G.E., while still a youth, was then found to be in
    possession of a loaded prohibited weapon, a sawed-off shotgun.

[3]

After serving 401 days of related pre-sentence custody G.E. pled guilty
    to three charges from these two events, namely, unlawful possession of a loaded
    handgun contrary to
Criminal Code
, s.95(1); unlawful possession of the
    shotgun contrary to
Criminal Code
, s. 92(1) and breach of recognizance,
    contrary to
Criminal Code,
s.145(3).

[4]

A joint position was presented to the youth court judge for time served.
    That joint position included the allocation of time for pre-sentence custody,
    with no time to be allocated to the breach of recognizance charge.

[5]

The parties agreed that a probationary sentence should also be imposed
    but disagreed on its length. No joint position was offered on the ancillary
    orders that would be made.

[6]

Counsel for G.E. alerted the youth court judge that G.E. intended to
    speak before sentencing, but G.E. was not given the opportunity to do so.

[7]

The youth court judge accepted the joint position of time served, but
    not the allocation. Without inviting further submissions from the parties, the youth
    court judge allocated 3 months of presentence custody to the breach of
    recognizance charge. A 15 month probationary sentence was also imposed, as was a
    7 years weapons prohibition pursuant to the
Youth Criminal Justice Act
,
    s. 51(1).

[8]

G.E. appeals his sentence. He contends that the youth court judge erred
    in not respecting the joint position on the allocation of time served, and by
    failing to grant G.E. the right to speak before his sentencing. G.E. also
    contends that his probationary sentence of 15 months is too long, and that it
    is an illegal sentence for the s. 95 offence, in violation of
Youth
    Criminal Justice Act
s. 42(14). It should have been 12 months. Finally, G.E.
    also argues that the weapons prohibition should have been for 6 years or less
    from the termination of his custodial sentence. This latter submission is tied
    to G.E.s contention that, as a matter of principle, ancillary orders made in
    youth cases should expire by the time the youth record is sealed.

[9]

We agree that the youth court judge should not, in the face of a joint
    sentencing submission, have varied the allocation for time served without
    alerting the parties and giving them an opportunity to be heard. This variation
    did not, however, affect the length of the sentence and does not render the
    sentence imposed unfit.

[10]

Nor
    would we interfere with the sentence because G.E. was not afforded the
    opportunity to speak at his sentencing hearing. We have reviewed the fresh
    evidence affidavit indicating what G.E. would have to say. While he has made
    impressive progress, the sentence imposed remains fit for the serious offences
    G.E. committed. He was not prejudiced by the way the sentencing hearing was
    conducted.

[11]

We
    would set aside the concurrent 15 month probationary term attached to the s.95
    offence and substitute a concurrent probationary term of 12 months. This is
    necessary to bring the sentence into compliance with s. 42(14). We would not,
    however, interfere with the 15 month probationary terms attached to the other
    two offences. The youth court judge determined appropriately that the
    principles of sentencing required a 15 month term of probation, and that is a
    legal sentence for those offences.

[12]

Finally,
    we would not interfere with the seven year weapons prohibition. It is not an
    error in principle to have a weapons prohibition outlive the record retention
    period, and given the seriousness of the weapons offences in this case, the 7
    year prohibition was manifestly appropriate.

[13]

We
    would therefore grant leave to appeal, and set aside the 15 month concurrent
    term of probation imposed on the s.95 offence in Count 1 on information
    17-Y996892. We would substitute a concurrent probationary sentence of 12 months
    from April 27, 2018, imposing the same terms and conditions as those imposed by
    the youth court judge on April 27, 2018. The other grounds of appeal are
    dismissed.

P. Lauwers J.A.

G. Pardu J.A.

David M. Paciocco
    J.A.


