



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    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)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    38(1) (identity not to be
published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.






CITATION:
R. v. J.H., 2011
          ONCA 207



DATE: 20110316



DOCKET: C51621



COURT OF APPEAL FOR ONTARIO



Simmons, Rouleau and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



J.H. (A Young Person)



Appellant



Theodore
Sarantis
, for the appellant



Matthew Asma, for the respondent



Heard & released orally:
March 11, 2011



On appeal from the conviction entered and the sentence imposed
          by Justice Minoo F. Khoorshed of the Ontario Court of Justice on November 19,
          2009 and December 1, 2009.



ENDORSEMENT



[1]

The appellant was charged with two counts of robbery
    and four counts of breach of recognizance as well as failing to comply with a probation
    order.  He was 16 years old at the time
    of the alleged offences.

[2]

The complainant was a 22 year old with an intellectual
    disability and, according to the
complainant,
the
    appellant had bullied and robbed him in the past.  After a
voir
    dire
at which the complainants mother and a police officer testified, the
    complainant was allowed to testify from behind a screen because he was fearful
    of the appellant.

[3]

The appellant was convicted of one count of robbery and
    of the breach and fail to comply charges.  He was sentenced under the
Youth
    Criminal Justice Act
to five months, two-thirds in secure custody and one
    third under community supervision, plus two years probation.  This was in addition to receiving credit for
    99 days of pre-trial custody.

[4]

The appellant appeals both conviction and
    sentence.  He argues that the trial judge
    erred by misapplying the reasonable doubt standard, by failing to give
    sufficient reasons for rejecting the appellants evidence and by using evidence
    adduced during the
voir dire
in
    reaching his decision on the trial proper.

[5]

With respect to sentence, the appellant submits that
    the sentence imposed was manifestly unfit as the trial judge did not adequately
    consider whether a less severe alternative to the five months sentence was
    appropriate.

[6]

In our view, the third ground raised on the conviction
    appeal is dispositive.  We agree with the
    appellant that the trial judge ought not to have referred to the
voir dire
evidence in his reasons for
    judgment.  Although the trial judge said
    that his use of the evidence would be narrowly circumscribed and would be for
    the limited
purpose of helping him understand
the
    victims demeanour in light of his intellectual disability, this use was
    improper.

[7]

The Crown argues that the trial judges limited use of
    the
voir dire
evidence caused no
    prejudice because, reading the record as a whole, it is apparent that the trial
    judge was able to make substantially the same observation concerning the
    complainant based on the complainants trial evidence.

[8]

We disagree.  As
    an example of the improper use that causes us concern, we note that, after
    reciting much of the mothers evidence led at the
voir dire
, including the mothers testimony as to an alleged
    statement made by the appellant, the trial judge stated as follows:

We have to look at this
    particular statement only for one purpose; to see how the statements made by
    the victim to the mother correspond with the statements made in court, and that
    is not for their accuracy, but to see the thinking pattern of the victim
    himself who has certain learning disabilities.

[9]

On our reading of the trial judges reasons, it appears
    that he used the
voir dire
evidence
    to bolster his assessment of the complainants credibility.  That assessment is at the root of his
    decision and therefore, the appeal must be allowed.

[10]

As a result, the convictions are set aside and a new
    trial is ordered.

Janet Simmons J.A.

Paul Rouleau J.A.

Karakatsanis J.A.


