Court of Appeal for Ontario

DATE: 20230606 DOCKET: COA-22-CR-0456

MacPherson, Pepall and van Rensburg JJ.A.

BETWEEN

His Majesty the King Respondent

and

Kyle Roche Appellant

Counsel: Stephanie DiGiuseppe and Heather Gunter, for the appellant Brent Kettles, for the respondent

Heard: May 30, 2023

On appeal from the order entered on October 25, 2022 by Justice Ramez Khawly of the Ontario Court of Justice.

REASONS FOR DECISION

Introduction

[1] On September 8, 2022, the appellant was found not criminally responsible on account of mental disorder (“NCR”) for attempted murder and assault and the matter was remitted to the Ontario Review Board for disposition.

[2] Subsequently, the Crown brought an application for a DNA order pursuant to s. 487.051(3) of the Criminal Code, R.S.C. 1985, c. C-46, that was opposed by the appellant. The order was granted and the appellant now appeals from that order.

Background Facts

[3] Shortly after the onset of schizophrenia, the appellant experienced his first psychotic episode. After breaking into one apartment where he was rebuffed, the appellant then broke into the apartment of an elderly woman. Using a knife, he first stabbed her in the arms and head and then repeatedly in the back. He believed his mind had been taken over by the “Illuminati” who had instructed him to enter the apartments to kill the occupants. On February 16, 2020, he was charged with attempted murder and assault. On arrest, he was hospitalized.

[4] Dr. Julian Gojer assessed the appellant and diagnosed him with a Psychotic Illness, Not Otherwise Specified. He was treated with anti-psychotic medication and was released from custody in March 2020. He returned to Nova Scotia to live with his mother.

[5] Dr. Gojer released a report dated March 22, 2022, in which, among other things, he opined that the appellant posed a very low risk of harm to the public and that the risk was likely to remain low.

[6] The appellant decompensated in August 2022 but his medication was then altered. Throughout, he has been compliant with his treatment regime.

Grounds of Appeal

[7] The appellant advances two grounds of appeal.

[8] First, he submits that the trial judge failed to interpret or apply the proper test for imposing a DNA order in the context of an NCR offender.

[9] We disagree.

[10] Under section 487.051(3)(a) of the Code, a judge may make an order authorizing the taking of a sample of the DNA of a person found NCR where the judge is satisfied that it is in the best interests of the administration of justice to do so and the offence committed by the NCR is a designated offence. [1] The Code sets out factors a judge is to consider.

[11] The order is discretionary in nature. The unique status of an NCR offender is reflected in the discretionary nature of the statutory provision.

[12] Absent an error in principle, a failure to consider a relevant factor, or an overemphasis of an appropriate factor, an appellate court should only intervene if the discretionary decision under review was clearly unreasonable: R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at paras. 46-49.

[13] As described by Weiler J.A. in R. v. Briggs, (2001), 55 O.R. (3d) 417 (C.A.), at para. 22, the DNA data bank is designed to:

(1) deter potential repeat offenders; (2) promote the safety of the community; (3) detect when a serial offender is at work; (4) assist in solving cold crimes; (5) streamline investigations; and most importantly, (6) assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).

[14] In the appeal before us, the trial judge addressed all of the factors required under the statute. He noted that the appellant conceded that the nature of the offences favoured the making of a DNA order. The trial judge considered the circumstances of the offences which included the appellant becoming extremely violent, extremely delusional, and extremely paranoid to the point where he was stabbing someone multiple times. The trial judge adverted to the absence of a criminal record or any previous NCR history, highlighted his youth, [2] and gave detailed consideration to the appellant’s privacy interests. Although he did not expressly speak of Dr. Gojer’s risk assessment, as evident from his questions during submissions, he was clearly aware of it. He also observed that the appellant had no pattern of going off of his medication, but the one incident (which post-dated Dr. Gojer’s report) was troubling. He reasoned that in balancing the various factors, including society’s interest in solving crimes and protecting the innocent, the DNA order should be granted.

[15] The trial judge properly interpreted and applied the correct test. On the appellant’s first ground of appeal, there is no basis to interfere.

[16] Second, the appellant submits that the trial judge erred in granting the DNA order based on stereotypical reasoning and speculation. He argues that consideration of a potential to stop taking medication and the appellant’s hypothetical future risk reflected impermissible reasoning. The appellant relies on the trial judge’s observation that many people who suffer from mental illness stop taking medication and relapse.

[17] The trial judge’s comments were in part reflective of his experience. Significantly though, his conclusions were anchored in the evidence and did not amount to speculation. This included the appellant’s diagnosis of Psychotic Illness, Not Otherwise Specified, his symptoms that based on Dr. Gojer’s report, fall along the schizophrenia spectrum of disorder, his history of cannabis use that again, according to Dr. Gojer’s report, related to his illness, and his recent decompensation that post-dated Dr. Gojer’s report and required an adjustment of his medication.

[18] In conclusion, the appellant has made tremendous progress since the commission of the index offences for which he should be commended. However, we are unable to conclude that the trial judge made any reversible error in imposing a DNA order.

[19] For these reasons, the appeal is dismissed.

“J.C. MacPherson J.A.”

“S.E. Pepall J.A.”

“K. van Rensburg J.A.”

[1] Under s. 487.051(3)(b), a judge may make a comparable order for an adult or youth where the offence is a secondary designated offence. Defined primary designated offences attract a mandatory order.

[2] He was 20 at the time of the offences and close to 23 on the date of the DNA hearing.