



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    subsection 110(1) (identity of offender not to be published), 111(1) (identity
    of victim or witness not to be published), 118(1) (no access to records unless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    subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
    published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure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. O.N., 2017 ONCA 923

DATE: 20171129

DOCKET: C60393

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

O.N.

Appellant

Janani Shanmuganathan, for the appellant

Jennifer Mckee, for the respondent

Heard and released orally: November 23, 2017

On appeal from the conviction entered on January 20, 2015
    by Justice Salvatore Merenda of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from convictions of assault; using an imitation
    firearm in committing an offence; threatening to cause bodily harm and carrying
    a concealed weapon. The offences arise out of an altercation said to have
    occurred in a washroom at a secondary school.

[2]

The evidence about what occurred in the washroom was given by its three
    principals: the complainant, the appellant and the appellants co-accused. If
    believed, the complainants account proved the offences alleged. The testimony
    of the appellant and co-accused denied any such altercation occurred.

[3]

The appellant advances two grounds of appeal. He says that the trial
    judge erred:

i.

in applying a different standard of scrutiny to the evidence of the
    complainant than that he applied to the exculpatory testimony of the appellant
    and co-accused; and

ii.

in misapprehending the evidence, by making adverse findings that were
    based on impermissible speculation rather than permissible inference.

Ground # 1: Uneven Scrutiny

[4]

To succeed on an argument about uneven scrutiny, the appellant must
    identify something in the trial judges reasons or elsewhere in the record that
    makes it clear that the trial judge actually applied different levels of
    scrutiny in assessing the evidence of the appellant and co-accused, on the one
    hand, and the complainant on the other.  It is not enough to show that the
    trial judge could have calibrated the evidence differently and reached a
    different conclusion.

[5]

Often, as here, this argument about uneven scrutiny moves in a circle.
    The judge believed X. The judge didnt believe Y. But the judge could have
    believed Y. Therefore, the judge applied a different standard of scrutiny. Not
    so, according to the authorities. The complaint here is with the conclusion,
    not the underlying analysis.

[6]

We reject this ground of appeal.

Ground #2: Speculation of Inference

[7]

The appellant also contends that the trial judge erred in basing his
    conclusions on impermissible speculation rather than reasonable inference.

[8]

In connection with this ground of appeal, the appellant fastens on the
    distinction, as I have said, between permissible inference, on the one hand,
    and impermissible speculation, on the other.  He says that the trial judge
    speculated about three things:

i.

the appellants knowledge of the complainants presence in the washroom
    when the assault occurred;

ii.

the reason the appellant did not engage the complainant during a
    previous chance encounter in the washroom was because he (the appellant) lacked
    the muscle of the co-accused; and

iii.

the avoidance of each other during the previous chance
    encounter in the washroom.

[9]

In our view, this ground of appeal fails for the simple reason that
    these conclusions of the trial judge fell within the field of inferences
    reasonably available from the evidence adduced at trial taken as a whole.

[10]

The trial judge accepted the complainants evidence about what occurred
    in the washroom. The joint entry of the appellant and co-accused. The immediate
    attack. The production of the handgun or imitation. The reference to the previous
    encounter.  It was a reasonable inference that the attack was planned and
    executed at a place where there were no surveillance cameras. The same may be
    said about the other two complaints. The appellant never engaged the
    complainant on any occasion, including the chance washroom encounter, when he,
    the appellant, and the complainant were alone. He avoided the complainant
    despite his obvious recognition of him and his association with the initial
    encounter. This ground also fails.

[11]

The appeal is dismissed.

David
    Watt J.A.
C.W. Hourigan J.A.
B.W. Miller J.A.



