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138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. H.S., 2014 ONCA 742
DATE: 20141024
DOCKET: C58416
Cronk, LaForme and Lauwers JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
H.S.
Appellant
James D. Harbic and Robert Harbic, for the appellant
Nathan Kruger, for the respondent
Heard: October 21, 2014
On appeal from the finding of guilt entered on November 28, 2013 and the disposition imposed on February 12, 2014 by Justice J. Peter Wright of the Ontario Court of Justice.
ENDORSEMENT
[1] It is undisputed that the complainant was robbed by a person at gunpoint and that the appellant drove the vehicle that the robber exited to commit the robbery and entered after the robbery. The main issue at trial was the extent of the appellant’s involvement in the robbery. The trial judge, after noting and applying the principles of W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409, essentially disbelieved the appellant’s evidence and believed the complainant. He found the appellant guilty of possession of a weapon for the purposes of robbery, and of robbery with a weapon. The appellant was sentenced to nine months’ custody (six months’ secure and three months’ supervision), followed by 12 months’ probation.
[2] The appellant appeals his conviction and relies on three grounds, namely, that the trial judge: (i) gave inadequate consideration to the inconsistencies in the complainant’s testimony and statements to the police; (ii) erred in accepting the complainant’s evidence solely on the basis of his demeanour; and (iii) rendered an unreasonable verdict because a properly instructed jury, acting judicially, could not have convicted the appellant in light of the inconsistencies in the complainant’s evidence.
The conviction appeal
[3] As to the conviction appeal, we reject each of the appellant’s grounds for asserting that the trial judge committed reversible error.
[4] First, the reasons of the trial judge demonstrate that he carefully analysed the impact of the inconsistencies in the complainant’s testimony. The inconsistencies relied on by the appellant are - just as the trial judge found and for the reasons he gave - incidental to the offences. When compared to the fact that the gun and stolen property were found in the Volkswagen driven by the appellant and his accomplice, and a manual for the gun was found on the appellant’s person, the inconsistencies are of little significance. Ultimately, none of the inconsistencies are sufficient to rebut the reasonable inference that the appellant was complicit in the robbery.
[5] Second, the appellant mischaracterizes the trial judge’s reasons as accepting the complainant’s evidence solely on the basis of demeanour. The complainant’s evidence on material issues was corroborated by independent evidence which went to the foundation of the case. For example, there is his account that he was robbed at gun point and his cell phone was stolen and that both were found in the Volkswagen. There is simply no basis to conclude that the trial judge relied on the complainant’s evidence solely because of his presentation as a witness.
[6] Third, given our decisions on the first two grounds of appeal, it cannot be said that the verdict is unreasonable. The conviction appeal is dismissed.
The sentence appeal
[7] The appellant also seeks leave to appeal his sentence, arguing that the trial judge’s reasons are insufficient and that the sentence is unfit. While we would grant leave to the appellant to appeal his sentence, we would dismiss the appeal.
[8] The appellant, a youthful offender, committed a robbery with a firearm. This is a serious offence which can attract a significant custodial term. The trial judge’s analysis of the appropriate sentence - in all the circumstances of this case - was thorough and included a consideration of the mitigating and aggravating factors. His reasons are far from insufficient.
[9] The trial judge referenced the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 “dealing with the requirements and considerations which the court must address ... to consider the least restrictive disposition.” While he refers to custodial sentences as a last resort, he does not canvass non-custodial alternatives, nor does he discuss why alternatives would be insufficient. Although it would have been preferable had he done so, we do not view this as fatal.
[10] When the trial judge’s reasons are read in their entirety, it is clear that he turned his attention to meeting the requirements of the Act. His reasons make it evident that a non-custodial sentence would not be adequate to achieve the Act’s purpose and that secure custody, although a sentence of last resort, was nevertheless appropriate in the circumstances of this case: see R. v. A.H., [2011] N.J. No 131, at para. 10.
[11] While the sentence imposed may arguably be on the higher end of the sentencing range in similar cases, it cannot be said to be harsh and unreasonable. And, even if the fresh evidence were considered, it would not impact upon the sentence imposed, which is fit and does not attract appellate intervention.
Disposition
[12] Accordingly, for the reasons given, the conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is also dismissed.
“E.A. Cronk J.A.”
“H.S. LaForme J.A.”
"P. Lauwers J.A. »