Court of Appeal for Ontario

Citation: R. v. Min, 2016 ONCA 495

Date: 20160621

Docket: C61493

Before: Feldman, Benotto and Miller JJ.A.

Between

Her Majesty the Queen

Respondent

and

Dai Hong Min

Appellant

Counsel:

Dai Hong Min, in person

Ericka Chozick, duty counsel

Alex Hrybinsky, for the respondent

Heard: June 6, 2016

On appeal from the conviction entered on December 18, 2014 and the sentence imposed on December 2, 2015 by Justice K.L. McLeod of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant pled guilty to aggravated assault on his father. The court was advised that the appellant abandoned his conviction appeal. He appeals his sentence of 16 months custody (after credit of 20 months pre-sentence custody), followed by 3 years probation.

[2] The appellant is a young man who, at the time of the offence and of sentencing, suffered from serious mental illness. He was, however, found fit to stand trial. The trial judge expressed significant concerns regarding the appropriate sentence, as the appellant was in need of psychiatric treatment without which he posed a risk to others. She recommended that he serve his sentence in the Ontario Correctional Institute where he could receive psychiatric treatment. She also ordered that he not return to live with his parents until a psychiatrist gave permission for him to do so.

[3] The appellant advised the court that he has not been sent to OCI and that he is not receiving any psychiatric treatment. There is also a concern that upon release, he has nowhere to go other than his parents’ home, and because he is not being assessed by a psychiatrist in the institution, his living arrangements on release may be an unresolved issue. His parents are very supportive and anxious to have him come home and live with them, despite the offence.

[4] The court was advised that he is in segregation at his own request.

[5] The court discussed with duty counsel the possibility of requesting that one of the psychiatrists who saw him for the NCR assessment see him again in the institution with a view to having him admitted under the civil mental health jurisdiction to a psychiatric hospital such as CAMH, and that the sentence be reduced to accommodate and facilitate such a transfer. The appellant did not agree to this proposal.

[6] We see no error in the sentencing decision of the trial judge. The court is very sympathetic to the appellant and his family because he needs psychiatric help and he is not getting it. However, his probation conditions are intended to ensure that he does receive the help he needs upon release. In light of the appellant’s rejection of any proposed variation by this court, the appeal must be dismissed.

“K. Feldman J.A.”

“M.L. Benotto J.A.”

“B.W. Miller J.A.”