R. v. J.(G.), 2012 ONCJ 198

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(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. Identity of victim or witness not to be published.—

(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. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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

section 129 (no subsequent disclosure) . . . (

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 FILE No.: Region of Durham 998 10 Y26006 DATE: 2012·04·11 Citation: R. v. J.(G.) , 2012 ONCJ 198 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — G.J. Before Justice J. De Filippis Heard on Reasons for Judgment Ruling released on April 11, 2012 Ms Jackson ............................................................................................................... for the Crown Mr. Romain .......................................................................................................................... for G.J.

De Filippis, J.: [1] The defendant was charged with 17 offences arising from three robberies that he allegedly committed with K.T.. Both are youthswithin the meaning of the Youth Criminal Justice Act. The latter pled guilty to the robberies after I dismissed an application to stayproceedings on the basis of unreasonable delay. The fact of the robberies is not in dispute. They occurred in the late evening of June 22and early morning of June 23, 2010 at three fast food outlets in Oshawa: Subway, Pizza Pizza, and Pizza Nova.

At each location, severalhundred dollars was taken from the cash register and/or customers by two persons wearing hoodies and bandanas. They are captured onsurveillance cameras and described by witnesses but all that can be said is that they appear to be young, male, and black. The issue atthis trial is whether the defendant is the other young black man in question. [2] This trial has had a somewhat torturous history. On the eve of trial, the Crown withdrew charges against a third co-accused andduring the trial abandoned its prosecution of other robberies allegedly involving the defendant.

Moreover, the defendant brought severalmotions at the start of trial and both parties did so during the trial. Call that need be said at this time about these proceedings is that forreasons previously given, I excluded statements taken by the police from the defendant and Mr. K.T. because of violations of s. 146 ofthe Youth Criminal Justice Act. Consequently, and having regard to the trial testimony of Mr. K.T., the only admissible evidenceimplicating the defendant is a prior statement made by Mr.

K.T. that I admitted pursuant to the principled exception to the hearsay rule.In the result, I conclude that that evidence is insufficient proof of the defendant’s guilt. [3] Mr. K.T. was called as a witness by the Crown. The video recordings made by surveillance cameras for the three robberies wereplayed. Mr. K.T. acknowledged these are the robberies to which he pled guilty. He testified that he is one of the masked assailantscaptured on camera and that he and his accomplice went into the establishments with a “plan to get money”.

In each case, however, headded that he could not remember the identity of his accomplice. The Crown tried to refresh the memory of Mr. K.T. by reference to aprior videotaped statement he made to police and the transcript of his guilty plea. This failed. When Crown counsel directed hisattention to a portion of the guilty plea transcript in which the accomplice is named, Mr. K.T. testified that this was of no assistancebecause “that’s just what I pleaded to”. When asked if the accomplice in all three robberies was the same person, Mr. K.T. said “itshould be the same person”.

He acknowledged knowing the defendant and said he lives near his home. Mr. K.T. concluded histestimony in chief by stating that he did not commit the offences with the defendant. [4] The Crown argued that Mr. K.T.’s guilty plea amounted to a prior statement by him and sought to tender it pursuant to the principledexception to the hearsay rule. This is commonly referred to as a “KGB Application”. See: R v B. (K.G.) (SCC),[1993] 1 S.C.R. 740.

In R v Tran 2010 ONCA 471, the Ontario Court of Appeal said a guilty plea in which a person accepts facts read inas “substantially correct” will rarely be a prior statement within the meaning of KGB because its reliability is fraught with danger.However, in Youvarajah, 201 ONCA 654, the same court found that where the guilty plea consisted of a previously signed agreedstatement of facts, it constituted a prior statement by the defendant and capable of being the subject of a KGB Application. I ruled thatMr.

K.T.’s guilty plea was came within the principle set out in Youvarajah because, through counsel, he specifically adopted all factsread in as correct, including the fact that the defendant was his accomplice in the three robberies. This, along with the solemncircumstances in which the guilty plea was received persuaded me that the statement met the criteria of threshold reliability. Moreover, Ifound that Mr.

K.T. effectively recanted that statement insofar as it described activities by the defendant. [5] The guilty plea was followed by a joint submission by the parties that the pres-sentence custody be noted and a probation order beissued. My acceptance of this joint submission meant that Mr. K.T. was released from custody.

Several months later, when he testified atthese proceedings he was back in custody, having been arrested for possession of a firearm. [6] The difficulty for the Crown in this case is that although, as I previously ruled, the guilty plea meets the criteria of necessity andthreshold reliability, it does not meet that of ultimate reliability. Mr. K.T. testified that he was not paying attention as the facts read ontothe record on his guilty plea because he was focussed on the joint submission that would result in him being freed from jail that day.

Headded that he did not intend to implicate the defendant, was not warned of the consequences of lying and unaware he would be called as awitness. [7] Mr. K.T. testified on several occasions during this trial, including at voir dires. Although he freely admitted his involvement in therobberies, he was short on details and evasive when question by the Crown. The cross-examination by defence counsel was a friendlyone in which Mr. K.T. agreed with almost any assertion of the defendant‘s innocence. I am mindful of this dynamic and understand theimplications. [8] I find that Mr.

K.T. lied to me about not remembering who committed the robberies with him. I also find he lied in claiming he wasnot paying attention at his guilty plea proceedings when that accomplice was identified as the defendant. I have no doubt he knows theidentity of his partner in crime and that he was being asked at his guilty plea to confirm it was the defendant. I am less sure heappreciated the long term impact of these admissions with respect to the defendant. Mr. K.T. knew his guilty plea would lead to jointsubmission of time served and he was focussed on that.

I cannot be certain he did not implicate the defendant out of convenience. In anyevent, everything I know about Mr. K.T., including his evidence at this trial, convinces me he is a disreputable person who is capable ofmuch deceit to advance his own interests. I need not cite examples of this; the entire transcript of his testimony at this trial bears witnessto his character. He is perfectly capable of carelessly or falsely agreeing to the defendant’s role in the robberies to suit his purposes,especially, as is likely here, he did not believe he would be called to testify about it later.

It would not be safe to convict solely on thebasis of admissions made by Mr. K.T., about the defendant, at another proceeding. [9] The Crown must prove guilt beyond a reasonable doubt. That standard has not been met in this case. Although I would not declareMr. G.J. to be innocent, I cannot conclude he is guilty. [10] The charges are dismissed.

Released: April 11, 2012 Signed: “Justice Justice J. De Filippis”