ONTARIO COURT OF JUSTICE
DATE: 2025-06-12
COURT FILE No.: Toronto 4810 998 25 50006382
4810 998 25 48100025
4810 998 24 48133586
BETWEEN:
HIS MAJESTY THE KING
— AND —
LYNDA NEWTH
Before Justice André Chamberlain
Heard on June 10, 2025
Reasons for Judgment read on June 11, released on June 12, 2025
Ethan Garber — counsel for the Crown
Andrew Vaughan — counsel for the defendant Lynda Newth
Chamberlain J.:
[1] Lynda Newth, you entered guilty pleas before me yesterday on four counts: assault and failing to comply with a probation order to keep the peace and be of good behaviour from November 5, 2024; as well as a further failure to comply with a release order from January 3 to February 21, 2025, for neglecting to report to the Toronto Bail Program; and finally a theft under $5000 from a Loblaws on April 6, 2025.
[2] Following the plea and finding of guilt, the Crown sought an order for a mental health assessment to determine if you were criminally responsible under s. 16 of the Criminal Code, specifically concerning the assault you committed on November 5, 2024.
Facts and Findings of Guilt
[3] On Tuesday, November 5th, 2024, at approximately 10:55 a.m., Janice Briones was walking eastbound along Howard Street in the City of Toronto. At the time, she was engaged in a phone conversation.
[4] As Ms. Briones began to cross Howard Street, she heard you yelling at her, “Stop talking!” You then rushed toward her and pushed her forcefully from the front with both hands on her upper body, causing Ms. Briones to lose her balance and fall onto her back.
[5] You left the scene immediately. Nothing was taken from Ms. Briones. Understandably, she was quite upset and made her way to the sidewalk. Some bystanders assisted her until the police arrived promptly. She pointed you out to the police, but they were unable to locate you right away. However, you returned to the area and were found and arrested around 11:43 a.m.
[6] You admitted that you were on probation at the time, and one of the conditions was to keep the peace and be of good behaviour. Justice Jones imposed this order in July 2023.
[7] Janice Briones sustained no visible injuries. She was taken to the hospital and reported soreness in her shoulder area from the push, as well as pain in her back and buttocks from the impact with the ground.
[8] You were released on bail on November 7, 2024. You were to report to the bail program immediately upon your release, and thereafter as required. I think it’s safe to assume you reported briefly, as the facts of your plea to failing to comply with that release order suggested you failed to report as of January 5, 2025. A bench warrant was issued for your arrest.
[9] You were arrested on April 6, 2025, for stealing food items from Loblaws at 396 St. Clair Avenue West. The outstanding bench warrant came to light, and you have been in custody ever since.
[10] The Crown, in support of its application, relies on a Book of Application Materials filed before this hearing. It was clear to you and your counsel at the time you entered your pleas that the Crown was going to seek this order.
[11] The Crown also relied on video evidence presented in this application, using the body-worn camera footage from two arresting officers and the in-car camera recording made during your transport after your arrest.
[12] They rely specifically on your words as you were investigated, arrested, and later transported. Audio was not always easy to follow, but clearly, the software used to view the footage also provided a “real time” transcript, one presumes by artificial intelligence. This was not an official verified transcript but was helpful on some level in understanding some of your words and utterances.
[13] You made some of the following statements: “I am a shadow,” and you mentioned a “shadowing supervisor” several times. You stated you were an RCMP officer. When asked for your name, you said it was Lynda Van Holston (sp?) and shortly thereafter provided the name we know you by, Lynda Newth, mentioning at one point that you were an actress, and the name Newth was a cover. You stated you were a veteran and noted that you had been honourably discharged. While being transported, you said you saw your father.
[14] Your demeanour throughout most of the video I observed was euphoric; you talked about love and finding a wife to love and often referred to the officers or said “sweetheart” repeatedly.
[15] The Crown’s materials on the application include:
(1) Your CPIC Criminal Record: It’s not short. It contains a mix of property offences, assault charges and administrative offences. The concerning aspect is that many of the assaults are pretty serious. At least once a year, the violence is evident in your record through charges like assault with a weapon (2023), assault causing bodily harm (2022), and assault with a weapon (2021, 2019, 2018). I note a gap in your record until 2018, following a 2-year sentence for three counts of assault with a weapon, one assault, and one assault on a peace officer in 2013. The last entry in 2023 is missing a count it seems; that sentence was for two break-ins. There was a final entry not on your record from October 2018 where you were convicted of uttering threats, being unlawfully in a dwelling, and mischief, where you received a one-day sentence and 12 months of probation.
(2) A Pre-Sentence Report from June 20, 2022: Specifically, the Crown directed me to the section relating to your physical and mental health. At page 40 of the Crown’s Application Record, it states:
“As previously noted, the subject disclosed a lengthy history of struggles with Anxiety and Post Traumatic Stress Disorder. The psychiatric report dated October 23, 2018 obtained from Anishnawbe Health indicated that the subject also has a history of Panic Attacks, Mood Disorders and that she had a previous diagnosis of Complex Post Traumatic Stress Disorder and Bipolar Disorder. The same report states that the subject indicated that she had auditory hallucinations and delusions that people were talking about her and were planning to get her while using substances. Ministry Records indicate that the subject has, on occasion, attended the office and accused Ministry staff of talking about her while she was waiting to see a probation officer.”
(3) The Crown also relied on a transcript of that joint position plea in 2013, where you received a two-year sentence. In the transcript at page 47 of the Record, as part of the plea inquiry, Justice Green asked you if you understood that the joint recommendation was for a penitentiary sentence of two years on top of the 38 days of time served. You responded:
“And I can't get my medication in the provincial. But at least - at least in the pen, I'll be able to have a psychologist every week. I'll have a psychiatrist monitoring my psychological medication that I really need.”
(4) The Crown also relies on a transcript at page 72 of the record where you admitted the following with respect to some counts which were pled to and others which were admitted as aggravating, namely: at page 70 of the Application Record:
“The complainant was approaching a pharmacy store on Parliament Street. She was with her seven year-old son at the time. Ms. Newth was walking northbound behind her and began to shout at her and her son. She’s a complete stranger. The complainant slowed down near the pharmacy to try to allow Ms. Newth to pass, but at this point Ms. Newth confronted her, shouted at her, and hit her twice in the back with her hand. The complainant then sheltered her son [INDISCERNIBLE] the pharmacy and then fled into the pharmacy where the police were called.”
And later at page 71 of the record:
“Just shortly after 5:35 Ms. Newth was in the area of Parliament and Wellesley Street. Again, a woman was just minding her own business walking down the street when Ms. Newth approached her and attacked her. She punched her in the face, threw her to the ground and began to kick her. She was kicked and punched while she was on the ground.”
Having been released from custody on Thursday, March 10th, 2022 the next day Ms. Newth was in the area of the Riverdale Collegiate Institute on Gerrard Street in Toronto. The victim was in the parking lot of the school and was there to attend the swimming pool at the school and go for an evening swim. When he exited his vehicle, Ms. Newth charged at him for no reason while brandishing a ten-inch blade. While charging at him, she screamed “I’m going to cut you so deep.” In fear of his life, the victim ran into the school and called police. When he had trouble getting a phone reception he exited the building, saw Ms. Newth again on the south side of Gerrard Street; the school is on the north. She then ran towards him again, yelling that she was going to kill him. Police arrived and Ms. Newth was placed under arrest.
Position of the parties
[16] The Crown argues that your tendency towards violence, which is typically serious in nature and often unprovoked, is directed at random strangers you seem to target for no apparent reason other than your belief that they are victimizing you, along with your history of mental health diagnosis, is a factor I should consider in support of their application.
[17] They note, specifically in relation to the assault of November 5, your behaviour as described above in the body-worn camera and in-car camera, given it was about an hour after the assault on Ms. Briones, is enough evidence that should lead me to order an assessment to determine if at the time of the assault, you were suffering from a serious mental health disorder of such a magnitude that would render you not criminally responsible for your actions by virtue of s. 16, of the Criminal Code.
[18] Mr. Vaughan argues that the application is groundless and should be dismissed. He argues that your behaviour on the videos is demonstrative of someone who is high on drugs such as meth, acid, alcohol and PCP and has not slept for a few days rather than any serious indication of a mental health disorder.
[19] He notes that you gave your proper name and that there have been no fitness concerns since the beginning of your involvement at bail following your arrest. He argues that the late application for this assessment, given that the count of simple assault with no serious injury to the victim, is an overreach.
[20] Mr. Vaughan acknowledges your history of mental health issues, but he believes that nothing in your actions that day indicates a psychosis. He notes that your initial flight from the scene demonstrates a consciousness of guilt and an awareness of your actions.
The Relevant Legislation
Defence of mental disorder
16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Assessment order
672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);
Where court may order assessment
672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor.
Limitation on prosecutor’s application for assessment
(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if
(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
Analysis
[21] A finding that a person is not criminally responsible for an offence committed by virtue of s. 16 of the Code is not a remedy to be sought or taken lightly. Justice Trotter in R. v. John Doe, 2011 ONSC 92 noted:
[35] On a more general level, the assessment provisions under Part XX.1 must be approached with great care, especially when the Crown attempts to invoke them. In this case, the Crown's motivation for seeking an assessment is legitimate. Nevertheless, an assessment under Part XX.1 is an entrance into a socially protective regime, one that is accompanied by significant deprivations of liberty. Accordingly, one must proceed with restraint when applying these provisions: see, more generally, Winko v. B.C. (Forensic Psychiatric Institute) (1999), 1999 SCC 10, 135 C.C.C. (3d) 129 (S.C.C.), at p. 156, Penetanguishene Mental Health Centre v. Ontario (A.G.) (2004), 2004 SCC 20, 182 C.C.C. (3d) 193 (S.C.C.), at p. 201 and Regina v. Conway (2010), 2010 SCC 22, 75 C.R. (6th) 201 (S.C.C.), at p. 232. Indeed, an assessment is itself an invasive procedure in many ways. This is no doubt one of the reasons why Parliament intended assessment orders should be “completed with dispatch”: see Ontario v. Phaneuf, 2010 ONCA 901, at para. 16.
[22] This isn't an application to determine if you, Lynda Newth, have a serious mental disorder. It appears clear, even by her own admission, that she has had mental health struggles. The critical test is whether there are reasonable grounds to doubt the presumption of criminal responsibility, as outlined in s. 16(2) of the Criminal Code. The reasonable grounds to question this presumption of criminal responsibility must be connected to experiencing a mental disorder at the time of the offence.
[23] From the evidence I have reviewed, there is no indication that you were suffering from a serious mental disorder at the time of the offence that would affect your ability to appreciate your actions. First, the evidence of any serious mental health condition comes third hand in the Pre-Sentence Report of June 2022, with the author quoting a psychiatric report provided to yet another agency, Anishnawbe Health, from October 2018, which cites a history of panic attacks and mood disorders while mentioning a previous diagnosis of complex post-traumatic stress disorder and bipolar disorder. This suggests that, at the very least, this psychiatric report does not diagnose her with those last two disorders but simply reports past diagnoses. In other words, it is truly a fourth-hand account of a diagnosis.
[24] Further, in Regina v. Gray (2002), 2002 BCSC 1192, 169 C.C.C. (3d) 194 (B.C.S.C.), Justice Wong stated:
[43] Thus, the focus of an assessment under section 672.11 is never simply the existence of mental disorder but rather the effect of any mental disorder with respect to specific legal concepts. The question of whether an accused is unfit or not criminally responsible is not ultimately to be decided by the assessing physician, but to be useful to the judge deciding fitness or the trier of fact deciding criminal responsibility; a section 672.11 assessment must be directed toward those legal concepts.
[44] Determining whether an individual is fit to stand trial or whether an individual is criminally responsible is very different than determining whether the individual has a mental illness or developmental disability. This was noted by Mr. Justice Pitfield in R. v. Muschke, [1997] B.C.J. No. 2825. In R. v. Muschke Pitfield, J. states the following:
46 While the disorders attributed to the applicant may well be in need of treatment, there is nothing in the letter to suggest that standing alone, they point to an inability to understand the nature and consequences of one’s actions or that the actions were wrong as contemplated by s. 16 of the Code if one is to be absolved of criminal responsibility.
[25] It is clear that your mind was wandering that day, and that you were saying things either to the officers or to yourself that, on the face of it, were not based on fact. I can’t say for sure, but it certainly seems that way. However, on those words and actions, I cannot conclude they are indicative of a serious mental health disorder.
[26] As such, I can find no evidence based on either the third or fourth-hand reports of mental diagnosis or on the evidence of her actions that day that would lead me to believe, on a balance of probabilities, that there are reasonable grounds to doubt Lynda Newth’s criminal responsibility for the alleged offence due to that mental disorder.
[27] Lynda Newth is Anishnawbe kwe; her father, Robert Nanabush, was from Parry Island. Canada and the Canadian justice system have a sordid and shameful history regarding their treatment of Indigenous peoples, particularly in the way it has treated Indigenous women.
[28] I am casting no aspersions on the Crown in this case, nor suggesting there was any deliberate intent to unfairly disadvantage Lynda Newth. I also do not propose that there was any malicious or improper intent regarding the decisions made in the prosecution of Ms. Newth. However, given my findings and the current state of the law concerning the evidence required to order an assessment under section 672.11, I believe that a better-informed understanding of whether the Crown was positioned to bring this application based on the limited evidence of serious mental disorder presented would be warranted.
[29] The need for such vigilance and care is particularly warranted when the individual before us is an Indigenous person. We in the criminal justice system must guard against actions or decisions that could be seen as disadvantaging any Indigenous person appearing before the Court, whether as an accused, a victim, or a complainant. We have been cautioned to be especially aware of the impact of our actions by the Supreme Court of Canada in R. v. Barton regarding the responsibility we all have to prevent unfair practices:
[198] Trials do not take place in a historical, cultural, or social vacuum. Indigenous persons have suffered a long history of colonialism, the effects of which continue to be felt. There is no denying that Indigenous people — and in particular Indigenous women, girls, and sex workers — have endured serious injustices, including high rates of sexual violence against women. The ongoing work of the National Inquiry into Missing and Murdered Indigenous Women and Girls is just one reminder of that painful reality (see Interim Report, Our Women and Girls Are Sacred (2017)).
[199] Furthermore, this Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenous people within our criminal justice system (see, e.g., Williams, at paras. 54 and 58; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 65; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59-60 and 67; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57). For example, in Williams, this Court recognized that Indigenous people are the target of hurtful biases, stereotypes, and assumptions, including stereotypes about credibility, worthiness, and criminal propensity, to name just a few (para. 28). Moreover, in Ewert, this Court stressed that “discrimination experienced by Indigenous persons, whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system, including the prison system” (para. 57). In short, when it comes to truth and reconciliation from a criminal justice system perspective, much-needed work remains to be done.
[30] It is all too easy to perceive and conclude that a vulnerable woman with a history of mental health issues requires intervention to address any risk she may pose to herself or the community. The case before me involving Lynda Newth is tragic, especially because the innocent victim was randomly targeted by Ms. Newth. As Ms. Newth’s counsel stated, regrettably, these unfortunate instances of random violence are the bread and butter of our work in this court. This reflects a sad reality about the lack of adequate counselling and support services for vulnerable individuals, as well as the absence of sufficient affordable housing. We must be cautious about applying different standards to Indigenous women when it comes to rulings that can significantly affect their lives. As Justice Trotter noted above: “Nevertheless, an assessment under Part XX.1 is an entrance into a socially protective regime, one that is accompanied by significant deprivations of liberty.” (John Doe, supra)
[31] Indigenous peoples are increasingly affected by these deficiencies due to the historic wrongs inflicted on them by colonial policies and practices, along with the betrayal of treaty rights and relationships.
[32] R. v. King, 2022 ONCA 665:
[170] As can be seen, the term “Gladue principles” has thus become a short form way of adverting to the idea that those involved in the criminal justice system, particularly judges exercising discretionary power, ought to be aware of the realities of the Indigenous people appearing before them. By this, we mean the historical and present-day treatment of Indigenous people that continues to perpetuate patterns of discrimination and has resulted in “lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”: Ipeelee, at para. 60. Failing to recognize these realities can lead to further discrimination against Indigenous people and undermine efforts to apply the law impartially and equitably. We can put it no better than Moldaver J. in Barton, at para. 199: “when it comes to truth and reconciliation from a criminal justice perspective, much-needed work remains to be done.”
[33] We must strive for improvement. We need to be more vigilant about the steps we take and the orders we pursue, being aware of their often disproportionate impact on the most vulnerable individuals within the criminal justice system. Few are considered more vulnerable in this system than Indigenous women. In closing, let me quote the dissent in R. v. Sharma at para 115:
Sentencing law cannot erase this country's colonial past. Nor can it remove the causes behind an offender's crime. But it is uniquely positioned to ameliorate — or aggravate — the racial inequalities in our criminal justice system.
[34] The application is dismissed.
Released: June 12, 2025
Signed: Justice André Chamberlain