Court of Appeal for Ontario

Date: 20240517 Docket: C66245

Fairburn A.C.J.O., Roberts and Trotter JJ.A.

Parties

BETWEEN

His Majesty the King Respondent

and

Bryce Ivins Appellant

Counsel

Erin Dann and Shannon Darby, for the appellant Brent Kettles, for the respondent

Heard

In writing

On appeal from

The verdict of not criminally responsible on account of mental disorder entered by Justice Lawrence Klein of the Ontario Court of Justice, dated July 11, 2018.

Reasons for Decision

[1] The appellant consented to being found not criminally responsible on account of mental disorder (“NCRMD”) on two sets of charges: Criminal Code, R.S.C. 1985, c. C-46, s. 16. The appellant has been under the jurisdiction of the Ontario Review Board ever since – for almost six years.

[2] The first set of charges included fraudulently obtaining food in the amount of $62.12 (a summary conviction offence) and breach of probation. The second set included charges of assault with a weapon and using an imitation firearm.

[3] The appellant appeals the NCR finding. He submits that the process leading up to the finding was fundamentally lacking in procedural fairness. This included: the failure to arraign the appellant on the fraudulently obtaining food and breach of probation charges; the failure of the trial judge to make any inquiry into the appellant’s purported consent to an NCRMD finding, along with his understanding of the potential consequences of such a finding; and the failure of the trial judge to give sufficient reasons.

[4] The respondent fairly concedes that the appeal should be allowed on the basis that the trial judge’s reasons were insufficient. The entirety of the trial judge’s reasons on both sets of charges were as follows:

The evidence that I’ve received today and on earlier occasions, I’m going to make a finding that you are not criminally responsible for the offences of October 13th…and October 23rd…

[5] The trial judge then said he would not render a decision with regard to a “fit and proper sentence” and remanded the appellant to Waypoint Centre. The appellant remonstrated with the trial judge, claiming that he knew what he was doing and knew that it was wrong. He said he was criminally responsible.

[6] We accept the Crown’s concession and allow the appeal on the basis that the trial judge’s reasons were wholly inadequate. In these circumstances, reasons for finding an accused person NCRMD must go beyond merely agreeing to a joint proposal. At a minimum, a trial judge is required to articulate the test under s. 16 of the Criminal Code and explain why the evidence before the court justified the NCRMD verdict: R. v. Laming, 2022 ONCA 370, 413 C.C.C. (3d) 409, at paras. 63-64; R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135, at paras. 45-52. The appellant was entitled to know in more detail why he was found NCRMD.

[7] Given the Crown’s concession, it is not necessary to address the other grounds of appeal advanced by the appellant. However, we wish to emphasize, once again, that, given the potential consequences of being found NCRMD – including detention in secure hospital settings that involve serious deprivations of liberty, and the possibility of lifelong supervision under Part XX.1 of the Criminal Code – procedural fairness must be jealously guarded and strictly enforced in this context.

[8] The appeal is allowed in relation to all charges. Leave to appeal is granted under s. 675(1.1) of the Criminal Code on the charge of fraudulently obtaining food. The NCRMD finding is set aside and a new trial is ordered.

"Fairburn A.C.J.O.” “L.B. Roberts J.A.” “Gary Trotter J.A.”