Publication Ban Warning

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO:

110(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.

(2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(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.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or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.

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20220831 DOCKET: C68381

van Rensburg, Coroza and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

J.G. Appellant

Counsel: Erin Dann, for the appellant Jennifer Epstein, for the respondent

Heard: in writing

On appeal from the order of Justice R. Cary Boswell of the Superior Court of Justice, dated May 11, 2020, with reasons reported at 2020 ONSC 2902, dismissing an appeal of the verdicts of not criminally responsible on account of mental disorder entered by Justice W.G. Beatty of the Ontario Court of Justice, dated September 15, 2005.

Reasons for Decision

[1] For the reasons that follow, we allow the appeal on the consent of the Crown on the terms proposed by the appellant.

[2] In 2005, when the appellant was 16 years old, he was found not criminally responsible on account of a mental disorder (“NCR”) in respect of a number of relatively minor assaults and failure to comply charges. The appellant has significant intellectual disabilities. At the time of the offences, and when he was found NCR, he was a Crown ward. All of the index offences related to incidents in group homes, where the victims were staff and fellow residents. Since he was found NCR, the appellant has been detained under the jurisdiction of the Ontario Review Board.

[3] After obtaining an extension of time in 2018, the appellant first appealed to the Superior Court, where, although the Summary Conviction Appeal (“SCA”) justice expressed concerns about the reasonableness of the NCR findings, he dismissed the appeal in 2020. On consent of the Crown, Paciocco J.A., as case management judge, granted leave to appeal to this court, ordered that the appeal be noted as perfected, and admitted fresh evidence on the appeal.

[4] The fresh evidence consists of an affidavit of the appellant dated in July 2017 and an assessment report related to the appellant dated in September 2006. While this evidence was before the Superior Court justice who extended time to appeal, it was not squarely before the SCA judge. The Crown acknowledges that, based on the fresh evidence, the appellant did not understand the consequences of an NCR verdict when he consented to be found NCR, and that if he had understood, he would have opposed the finding. The Crown concedes that the appeal should be allowed and that the NCR verdicts should be set aside on the basis that the NCR findings were reached through a process that was unfair to the appellant and thus resulted in a miscarriage of justice.

[5] We have reviewed the record in this appeal and the parties’ factums. We agree with the parties that the process resulting in the NCR findings was unfair and that there was a miscarriage of justice in the circumstances of this case. There is no transcript of what occurred at the time the appellant was found NCR, and the audio recordings have been destroyed. The parties have been unable to obtain further information from the trial Crown or duty counsel who assisted the appellant. We are satisfied by the evidence, including the fresh evidence, that at the time he consented to the NCR findings, the appellant did not understand what it meant to be found NCR, and that had he known he would have contested the NCR verdicts.

[6] We are also satisfied that the appropriate disposition is to find the appellant guilty of the index offences. Although, in his recent cross-examination, he had no memory of the details of the offences, in his 2017 affidavit he accepted responsibility for the offences, and he indicated that his original intention had been to plead guilty. The circumstances of the offences were such that a finding of guilt was inevitable.

[7] As such, we allow the appeal. We substitute for the NCR findings a finding of guilt in respect of each of the index offences and we impose, again on consent of the Crown, a sentence of one day concurrent on each offence. We are exercising our discretion to stay the execution of the sentence.

“K. van Rensburg J.A.”

“S. Coroza J.A.”

“J. George J.A.”