THIS IS AN APPEAL UNDER THE
AND IS SUBJECT TO:
(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.
(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.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.
CITATION: R. v. P.A., 2011 ONCA 673
DATE: 20111028
DOCKET: C53295
COURT OF APPEAL FOR ONTARIO
Doherty, Weiler and Cronk JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
P.A.
Appellant
P. Andras Schreck and Bernadette Saad, for the appellant
Dena Bonnet, for the respondent
Heard: October 12, 2011
On appeal from the verdict of not criminally responsible by reason of mental disorder entered by Justice Malcolm McLeod of the Ontario Court of Justice, sitting as a Youth Court judge, dated October 26, 2010.
ENDORSEMENT
I. Introduction
[1] The appellant, P.A., an aboriginal youth, is a young person within the meaning of the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”). He is mentally ill and was unrepresented in the proceedings at first instance.
[2] On September 2, 2010, the appellant entered a plea of guilty to one count of break and enter with intent to commit an indictable offence. The trial judge accepted that plea, at which time the Crown indicated that it would seek a finding of not criminally responsible by reason of mental disorder (“NCR”). This led to an NCR hearing on October 26, 2010, following which the Youth Court judge found the appellant NCR and ordered that he be detained at the Mental Health Centre Penetanguishene – Oak Ridge Division, the maximum secure forensic psychiatric facility for adults in Ontario (“Oak Ridge”). The appellant has been detained at Oak Ridge ever since, under successive orders of the Ontario Review Board (the “ORB”).
[3] The appellant appeals the NCR verdict and his court-ordered detention at Oak Ridge.
[4] At the conclusion of oral argument, we allowed the appeal with reasons to follow. We set aside the NCR verdict, directed that a conviction be entered on the charge of break and enter with intent to commit an indictable offence, and sentenced the appellant to one day’s imprisonment having regard to the time that he has already spent in custody (approximately 15 months). These are our reasons for that disposition.
II. Issue on Appeal
[5] In support of his appeal, the appellant argued that his plea and NCR hearing were irremediably tainted by a series of procedural errors and that, in any event, the NCR verdict was unreasonable given the nature of the psychiatric evidence adduced by the Crown. The appellant, therefore, maintained that his guilty plea and the NCR verdict should be set aside and the criminal proceedings against him should be stayed or, alternatively, that a new trial should be ordered. In the further alternative, the appellant sought a declaration that his detention at Oak Ridge pending disposition by the ORB was unlawful.
[6] The Crown conceded that the appellant’s plea and the NCR hearing suffered from fatal procedural defects, with the result that the appeal should be allowed. However, the Crown argued that this is not a case where the extraordinary remedy of a stay order should be granted. Rather, the Crown maintained that a new trial should be ordered at which the Crown, if so inclined, could proceed with an NCR application.
[7] Accordingly, the only issue in contention concerns the question of an appropriate remedy.
III. Discussion
[8] We agree with the parties that the appellant’s plea and the NCR hearing were rife with reversible errors. These included the following:
contrary to s. 606(1.1) of the Criminal Code (the “Code”), and notwithstanding clear indications on the record that the appellant’s guilty plea may not have been voluntary, no plea inquiry was conducted. Indeed, the record reveals that little, if any, effort was made to ensure that the appellant’s guilty plea was valid;
there was no evidence on which an NCR verdict could be returned. In particular, the expert called by the Crown at the NCR hearing, on whose testimony the Crown relied in seeking an NCR verdict, failed to express any opinion on whether the appellant was incapable of appreciating the nature and quality of his actions or knew that his actions were wrong at the time of the offence. Both in his written report and his testimony, the Crown’s expert directed his attention to the question of whether the appellant “suffer[ed] from a severe mental illness at the time [of the offence]”. His opinion evidence did not address the issue of the appellant’s criminal responsibility, the requisite inquiry under s. 16 of the Code.
A person suffering from a mental disorder, even a severe mental disorder, is not considered by reason only of that disorder to be NCR. The presumption in s. 16 of the Code still applies and must be rebutted by proper evidence;
importantly, trial fairness was compromised. Specifically, the Youth Court judge failed to inform the unrepresented appellant of his right to counsel, his right to cross-examine witnesses – including the Crown’s medical expert, and his right to call evidence. Perhaps most significantly, having made an order for the appointment of counsel on an earlier occasion, the Youth Court judge proceeded without counsel for the appellant and made no inquiries as to why his order had not been complied with. Further, the Youth Court judge appears to have given no consideration to the appointment of an amicus curiae as an alternative;
it also appears that the Youth Court judge and the Crown failed to explain the implications of an NCR assessment to the appellant; and
the failure to consider whether the appellant, a youth at the time of the offence, should be detained at Oak Ridge (an adult psychiatric facility) pending his hearing before the ORB, having regard to ss. 84 and 141(11) of the YCJA.
[9] These were serious errors. In light of these errors, the NCR verdict cannot stand. That leaves for consideration the question of the appropriate remedy.
[10] In our view, this is not a case warranting a new trial. Putting the Crown’s case at its highest, it could not support an NCR verdict. We agree with the appellant’s submission that, in the circumstances, the Crown is not entitled to another opportunity to make out what it failed to establish at the original NCR hearing.
[11] However, we are also not satisfied that the extraordinary remedy of a stay is appropriate in this case. A stay of criminal proceedings is justified only in the “clearest of cases” where no other remedy is available: see R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 136-137; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 82. This exacting threshold for a stay is not made out in this case, particularly as another suitable remedy is available.
[12] Defence counsel have indicated that, rather than undergoing a new trial, the appellant remains prepared to acknowledge his guilt on the break and enter with intent charge. Counsel have also informed the court that they are satisfied that the appellant is competent to enter a valid plea.
[13] In the particular circumstances of this case, we conclude that the proper disposition is to allow the appeal, set aside the NCR verdict and, based on the appellant’s fresh acknowledgement of guilt, enter a conviction on the charge of breaking and entering with intent under the powers of this court set out in s. 686(4) of the Code, and we so order.
IV. Sentence
[14] As we have said, the appellant has been in custody for approximately 15 months. He has been detained at Oak Ridge, an adult facility, throughout. It is not open to this court to sentence him to time served: see R. v. Guidolin, 2011 ONCA 264, [2011] O.J. No. 1649 (C.A.); R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723. We therefore sentence the appellant to one day’s imprisonment.
[15] We are aware that the Crown has suggested that the appellant, if released from Oak Ridge as our disposition contemplates, may pose a risk to himself or others. Without expressing any view on the merits of this claim, we note that, as the authorities are well aware, civil commitment options are available under the provisions of the Mental Health Act, R.S.O. 1990, c. M.7.
[16] Finally, the court acknowledges the able assistance of P. Andras Schreck and Bernadette Saad, who appeared as pro bono counsel for the appellant on this appeal. Their involvement was most helpful to the court.
“Doherty J.A.”
“Karen M. Weiler J.A.”
“E.A. Cronk J.A.”