Court of Appeal for Ontario

Citation: Tran (Re) 2015 ONCA 29

Date: 20150121

Docket: M44396 (M44341)

Judges: Feldman, Simmons and Pardu JJ.A.

IN THE MATTER OF: Brian Tran

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Linda Choi, for the appellant Jocelyn Speyer, for the respondent, Attorney General for Ontario Gavin S. MacKenzie, for the respondent, Centre for Addiction and Mental Health

Heard and released orally: January 12, 2015

On a motion to review the order of Justice MacFarland dated, October 28, 2014, refusing to grant an extension of time to file a notice of appeal against the disposition of the Ontario Review Board dated, April 4, 2014, and from the finding of not criminally responsible on account of a mental disorder dated, January 7, 2014 by Justice Nelson of the Ontario Court of Justice.

ENDORSEMENT

[1] The applicant seeks an extension of time to appeal the first decision of the Ontario Review Board dated April 4, 2014 to detain him at CAMH following a Not Criminally Responsible (NCR) finding on the offence of criminal harassment. The applicant also seeks an extension of time to appeal the NCR verdict. The application is before this panel for reconsideration of the decision of a single judge who dismissed the request for an extension of time, in large part because the applicant did not form the intent to appeal within the time permitted to appeal.

[2] Dealing first with the proposed appeal of the NCR verdict, that is a summary conviction appeal to the Superior Court and the extension of time must be sought there. Undoubtedly, if the application is brought there, the Superior Court judge hearing the application will take into account the applicant’s mental illness and the reason for his failure to appeal within the time limited for appeal.

[3] On the other application, in R. v. Shea, 2010 SCC 26, the Supreme Court of Canada confirmed that there is a “narrow circumstances” jurisdiction for a panel of this court to reconsider a decision of a single judge on the issue of extension of time to appeal.

[4] Crown counsel conceded that for the purpose of applying the test for an extension of time to appeal an Ontario Review Board decision, the first two factors relating to the intent to appeal within the time limited for appeal and the reasons for the delay should be relaxed in cases where the mentally ill applicant may not have been able to form the intent to appeal because of his illness. This certainly appears to be one of these cases.

[5] The relevant test factors therefore are the merits of any appeal and the justice of the case. In this case, in our view, the Ontario Review Board made no error in its approach to the evidence and its decision to detain the applicant was a reasonable one on the record before it.

[6] Having said that, the applicant’s next Ontario Review Board hearing is scheduled for February 25, 2015. At that time the Board will reassess whether the applicant poses a significant threat to the safety of the public, and may hear from the applicant’s father (who made additional oral submission to the court) on whether releasing him to the parents’ care in order for them to administer his medication could reduce the risk sufficiently.

[7] In the result, the motion to reconsider the refusal to grant the extension of time to appeal the Ontario Review Board decision of April 4, 2014, is dismissed.

“K. Feldman J.A.”

“J. Simmons J.A.”

“G. Pardu J.A.”