The appellant appealed a finding of not criminally responsible (NCR) for assault and breach of probation, arguing the trial judge ordered the NCR assessment without any evidentiary basis.
The Crown conceded the error but argued the curative proviso should apply.
The Superior Court of Justice held the proviso did not apply because the error was not harmless and the evidence of NCR was not overwhelming without the improperly ordered assessment.
The NCR finding was set aside, convictions were entered, and the appellant was sentenced to one day in jail, having already spent nine years in custody.
