



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    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)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    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)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.Z., 2021 ONCA 817

DATE: 20211116

DOCKET: C68072

Doherty, Pardu and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

J.Z.

Respondent

Erin Carley, for the Crown applicant
    (appellant)

Ricardo Golec, for the respondent

Heard and released orally: November
    12, 2021

On appeal from the sentence imposed by
    Justice Brian Weagant of the Ontario Court of Justice (Youth Justice Court) on
    January 24, 2020.

REASONS FOR DECISION

[1]

The Crown applicant alleges the trial judge
    misinterpreted s. 39(1)(d) of the
Youth Criminal Justice Act
(
YCJA
)
    and failed to impose a custodial sentence despite having determined that this
    was an exceptional case under s. 39(1)(d). The Crown submits that, having
    made that determination, the trial judge was required to impose a custodial
    sentence.

[2]

We cannot accept this interpretation. The proper
    interpretation of the section  is found in
R. v. R.E.W.
(2006), 205
    C.C.C. (3d) 183, at para. 43. Rosenberg J.A. said:

The scheme of the
YCJA
suggests that
the exceptional case gateway can only be utilized in those very
    rare cases where the circumstances of the crime are so extreme that anything
    less than custody would fail to reflect societal values
. It seems to me
    that one example of an example of an exceptional case is when the circumstances
    of the offence are shocking to the community. [Emphasis added.]

[3]

The trial judge, although cognizant of the
    serious nature of the offence, determined that this was not a case in which
    only a custodial sentence could reflect societal values and, more specifically,
    the purposes and principles in s. 38 of the
YCJA
.

[4]

It was open to the trial judge to make that
    assessment. We see no error in principle in his conclusion. Given the trial
    judges assessment, he properly declined to impose a custodial sentence under
    s. 39(1)(d) of the
YCJA
. Leave to appeal is granted and the appeal is
    dismissed.

Doherty J.A.

G. Pardu J.A.

J.A. Thorburn J.A.


