Graham T. Clark, Counsel: conviction for aggravated assault etc. overturned where trial Judge failed to consider the defence as argued.

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 (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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. A.M., 2012 ONCA 190

DATE: 20120326

DOCKET: C53424

Rosenberg, Armstrong and Blair JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

A.M.

Appellant

Graham T. Clark, for the appellant

Alison Wheeler, for the respondent

Heard and endorsed: March 21, 2012

On appeal from the conviction entered on June 14, 2010 and the sentence imposed on July 28, 2010 by Justice Brian Muir Scully of the Ontario Court of Justice (Youth Court), sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]               Crown counsel fairly concedes that the appellant did rely on s. 34(1) of the Criminal Code. The trial judge however only dealt with s. 34(2). In our view, there is an air of reality to self-defence under s. 34(1). As the trial judge said, the appellant acted impulsively when handed the bar in the course of the altercation. The trial judge made no finding that the appellant intended to cause grievous bodily harm and we cannot infer that the appellant did have that intention.

[2]               We also are of the view that the findings of fact did not establish that the force used was disproportionate. The finding of fact that the appellant did not have reasonable grounds for belief that he was at risk of death or serious injury, did not resolve the question of proportionality. We also are of the view that fairness requires that the appellant’s real defence be considered by a trier of fact with the opportunity to see and hear the witnesses.

[3]               Accordingly, the appeal is allowed, the conviction is set aside and a new trial ordered.