R. v. J., A.

R. v. J., A. Collection Decisions of the Court of Appeal Date 2006-03-08 Docket numbers C43743 Judges Rosenberg, Marc; Borins, Stephen; Lang, Susan Elizabeth Subject Criminal Decision Content DATE: 20060308 DOCKET: C43743 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – A.J. (A Young Person) (Appellant) BEFORE: ROSENBERG, BORINS AND LANG JJ.A. COUNSEL: Roger A. Pinnock for the appellant Brian Snell for the respondent HEARD & RELEASED ORALLY: March 6, 2006 On appeal from conviction by Justice John P. Kerr of the Ontario Court of Justice dated February 24, 2005 and sentence imposed June 28, 2005. ENDORSEMENT [1] The appellant submits that the trial judge erred in his treatment of the identification evidence by focusing solely on the honesty of the witnesses and that in any event the sexual assault conviction was unreasonable. [2] This case did not turn on the reliability of the identification. This was one continuous transaction and the complainant’s subsequent conversation with the appellant was inconsistent with the appellant not having been involved in the earlier sexual assault. [3] We are satisfied that the trial judge did not err in his appreciation of the identification evidence. The verdict was not unreasonable. [4] We are also satisfied that the trial judge did not err in refusing to direct a verdict of acquittal on the concealed weapon charge. There was evidence that the complainants were wary of both assailants and did not see any weapon. In those circumstances there was some evidence of concealment. [5] Accordingly, the appeal from conviction is dismissed. [6] As to sentence, the Crown concedes that the trial judge erred in applying s. 39(1)(d) of the Youth Criminal Justice Act, S.C. 2002, c. 1. In fairness to the trial judge, he did not have the benefit of this court’s decision in R. v. R.E.W., [2006] O.J. No. 265. In our view, given the time already spent in custody, the almost two years of house arrest, and the community service performed by the appellant, the appropriate disposition at this point is time served. We also see no benefit for a probation order. [7] Accordingly, leave to appeal sentence is granted, the appeal is allowed and sentence is reduced to time served. The probation order is struck out. Signed: “M. Rosenberg J.A.” “S. Borins J.A.” “S. Lang J.A.”