Court of Appeal for Ontario

Date: 2024-07-05 Docket: COA-23-CR-0238

Before: Roberts, Monahan and Dawe JJ.A.

Between: His Majesty the King Respondent

And: Terrance Nahmabin Appellant

Counsel: Cassandra DeMelo, for the appellant Michael Bernstein, for the respondent

Heard: June 13, 2024

On appeal from the verdicts of not criminally responsible on account of mental disorder entered by Justice Anne E. McFadyen of the Ontario Court of Justice, dated September 5, 2019.

Reasons for Decision

[1] On September 5, 2019, the appellant was found Not Criminally Responsible on account of Mental Disorder (“NCRMD”) for the offences of breach of probation, mischief, and assault with a weapon. The Crown proceeded summarily on the assault with a weapon charge, and by indictment on the other charges. We grant the appellant leave under s. 675(1.1) of the Criminal Code, R.S.C., 1985, c. C-46 to have his appeal on the summary charge heard along with his appeal on the charges where the Crown elected to proceed by indictment.

[2] The appellant appeals the NCRMD finding, arguing: 1) there were procedural deficiencies in the plea and the NCRMD proceedings that rendered the process fundamentally unfair and caused a miscarriage of justice; and 2) the trial judge improperly applied the test for an NCRMD finding, failed to provide a sufficient basis for the finding that the requirements of s. 16 of the Criminal Code were met, and therefore the verdicts were unreasonable.

[3] We agree that the appeal should be allowed.

[4] We start with the well-trod principle, recently emphasized by this court in R. v. Ivins, 2024 ONCA 408, at para. 7:

[G]iven 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.

[5] Procedural fairness includes fairness in the process leading up to the NCRMD finding, as well as the requirement that the trial judge articulate the test under s. 16 of the Criminal Code and explain why the evidence before the court justified the NCRMD verdict so that the accused knows why they were found NCRMD: Ivins, at para. 6; R. v. Laming, 2022 ONCA 370, 413 C.C.C. (3d) 409, at paras. 63-64; and R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135, at paras. 45-52, 73.

[6] Neither the process nor the trial judge’s reasons in this case met those criteria.

[7] The procedural unfairness in the process leading up to the NCRMD finding included the following aspects. First, the reply to the arraignment on the charges was that the appellant was “not criminally responsible”, which is not a formal plea: R. v. D.M.G., 2011 ONCA 343, 105 O.R. (3d) 481, at para. 43. Second, other than asking him if the “plea” of not criminally responsible was “right”, there was no inquiry of the appellant as to whether he understood the consequences of a finding of NCRMD. This was particularly significant in this case given the appellant’s “repeatedly expressed distress at the prospect of being found NCR” and being “locked up forever” that was communicated throughout his assessment to the psychiatric expert who examined him and opined that the defence of NCRMD is available for the appellant.

[8] The Crown read in a summary of facts to which the appellant’s trial counsel (not the appellant’s current counsel) took no issue. However, the trial judge made no findings with respect to the facts read in by the Crown or the expert’s report. She did not refer to s. 16 of the Criminal Code nor explain why the evidence before the court justified the NCRMD verdict. Given the appellant’s serious equivocation communicated to the examining psychiatrist about an NCRMD finding, it was incumbent in these circumstances to inquire about the appellant’s comprehension of the consequences of and his firm agreement to an NCRMD finding. The trial judge did not do that. Nor did the trial judge’s brief reasons explain to the appellant why he was found NCRMD, rather, she stated:

[H]aving reviewed the report and the comments in relation to the offences before the court I am prepared to make the finding of not criminally responsible in relation to Mr. Nahmabin on all matters before this court today.

[9] We do not accept the Crown’s submission that there was no miscarriage of justice here. We agree that the trial judge’s very brief reasons must be assessed contextually, in light of the evidence before the trial judge and the submissions of counsel. The difficulty here is that the terseness of the trial judge’s reasons means that we are unable to ascertain whether or how the trial judge grappled with the evidence before her or the criteria under s. 16 of the Criminal Code. Moreover, the fact that the NCRMD verdict could have been reached on this record is no answer to the material procedural deficiencies in this case that rendered the process unfair.

[10] There can be no shortcuts in a process that could result in such serious consequences to the accused. There must be a proper plea to the arraignment on the charges. Where there is agreement on the factual underpinnings of the offences, the court must nevertheless make findings with respect to the actus reus of the offences. The court cannot simply rely on a consent to a NCRMD finding but must reference s. 16 of the Criminal Code and explain why the evidence before the court justifies the NCRMD verdict.

[11] None of these steps were followed here. Accordingly, we find there was procedural unfairness amounting to a miscarriage of justice.

Disposition

[12] For these reasons, the appeal is allowed in relation to all charges. The NCRMD finding and ancillary orders are set aside, and a new trial is ordered.

“L.B. Roberts J.A.”

“P.J. Monahan J.A.”

“J. Dawe J.A.”