



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.

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    (identity of offender not to be published), 111(1) (identity of victim or
    witness not to be published), 118(1) (no access to records unless authorized)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    of this Act, or subsection 38(1) (identity not to be published), (1.12) (no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), (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    the complainant or a witness shall not be published in any document or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, 159, 160, 162, 163.1, 170, 171, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 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. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. A.F.,
    2012 ONCA 790

DATE: 20121116

DOCKET: C53728

Doherty, LaForme JJ.A. and Glithero J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

A.F. (A Young Person)

Appellant

John Hale, for the appellant

Tracy Kozlowski, for the respondent

Heard: November 15, 2012

On appeal from the conviction entered by Justice H.L.
    Fraser of the Ontario Court of Justice, Youth Justice Court, dated April 18,
    2011 and the sentence imposed on April 18, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The Crown has convinced us that there was a basis upon which a
    reasonable trier of fact could convict.  The Crown has also convinced us that
    the verdicts are not so inconsistent as to justify a finding of
    unreasonableness.

[2]

We are, however, satisfied that the reasons are inadequate.  The reasons
    are very brief and do not reveal the basis upon which the trial judge sorted
    through the conflicting evidence to arrive at his result.  The absence of
    adequate reasons is an error in law.

[3]

The hearsay statement should not have been received.  It bears few, if
    any, indications of reliability.  The declarant did have a motive to fabricate. 
    It was very much in her interest to assist the police by providing information
    to them.  The Crown also concedes that one of the factors relied on by the
    trial judge could not assist in assessing the reliability of the statement,
    i.e. the declarants expressed intention to cooperate with the police.  Nor does
    the fact that the witness understood the purpose of the interview enhance the
    reliability of her statement.

[4]

In our view, this was the kind of witness and the kind of evidence
    (observations from 15 storeys above the incident) which cried out for
    cross-examination before a reliability assessment could be made.  The admission
    of the statement was an error in law.

[5]

The two errors require a new trial if the Crown concludes in all of the
    circumstances, including the fact that the appellant has almost completed his
    probation, that a new trial is in the interests of justice.


