ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-50000133-00AP
DATE: 20151126
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
KEVIN REYNOLDS
M. Petrie
for the Crown/Respondent
J. Presser
as Amicus Curiae
HEARD: November 26, 2015
TROTTER J. (ORALLY):
[1] On November 12th, 2012, after a trial before the Honourable Madam Justice Oleskiw of the Ontario Court of Justice, Mr. Reynolds was found guilty of dangerous driving, assault with a weapon and taking a motor vehicle without consent.
[2] At trial, Mr. Reynolds was self-represented. The trial judge appointed amicus curiae. The trial judge ultimately found Mr. Reynolds guilty of the three offences. In the proceedings following the trial, the trial judge ordered an assessment under s. 21 of the Mental Health Act because of concerns about Mr. Reynolds' fitness. A report was prepared by Dr. Angus McDonald, a forensic psychiatrist. He addressed the issue of fitness, as well as the question of whether Mr. Reynolds was not criminally responsible under s. 16 of the Criminal Code. In his report, Dr. McDonald expressed "grounds for concern" about Mr. Reynolds' fitness and his criminal responsibility.
[3] The case returned to court on February 27th, 2013. Prior to this date, the trial judge became concerned about the implications of an unfitness finding and had replaced amicus counsel with special duty counsel to represent Mr. Reynolds and to advocate on his behalf. Special duty counsel had just been assigned to the case the previous day.
[4] On the morning of February 27th, 2013, Mr. Reynolds was expecting to be sentenced. He refused to meet with special duty counsel. When the hearing commenced, the Crown (not Ms. Petrie) announced that she would be pursuing the fitness issue as well as an NCR finding.
[5] During his testimony, Dr. McDonald elaborated on his grounds for concern about Mr. Reynolds' criminal responsibility. Special duty counsel asked Dr. McDonald a number of questions, but he did not really challenge his evidence. This was despite Mr. Reynolds' many interjections in which he expressed his opposition to Dr. McDonald's conclusions.
[6] I make the further observation that even though no determination on either the fitness or the NCR issue had been made, the trial judge permitted Dr. McDonald to answer questions about the appropriate placement for Mr. Reynolds if either finding were to be made. This is a less than ideal way to conduct an NCR hearing, especially given that Mr. Reynolds was barely represented at this proceeding. See R. v. Kankis (2012), 2012 ONSC 378, 281 C.C.C. (3d) 113 (Ont. S.C.J.), at p. 126.
[7] When it came time for submissions, during which the Crown submitted that the trial judge ought to find Mr. Reynolds not criminally responsible, special duty counsel submitted: "So there is evidence, I would submit, before the Court where Your Honour can make the finding of NCR."
[8] The trial judge found Mr. Reynolds to be NCR. At the urging of special duty counsel, a disposition hearing was immediately embarked upon. As special duty counsel said, Mr. Reynolds wished to be sentenced right away. The Crown agreed. In the circumstances, s.672.45(1) (where both counsel request a disposition hearing) required the trial judge to make a disposition order. The trial judge made an order under s.672.54(c), detaining Mr. Reynolds in a maximum security facility. He remains in hospital to this day, almost two years after the fact.
[9] Mr. Reynolds appeals the NCR finding on the basis that the hearing lacked procedural fairness and amounted to a miscarriage of justice. Ms. Presser was appointed as amicus curiae and has rendered excellent assistance by preparing written materials and making very helpful and balanced oral submissions in support of a new NCR hearing. Very fairly, and displaying equal skill, Ms. Petrie for the Crown concedes the appeal and joins Mr. Reynolds' request for a new hearing.
[10] Reviewing the proceedings before the trial court, I agree with experienced appellate counsel that the NCR hearing was seriously lacking in procedural fairness such that the NCR finding must be set aside. See R. v. Cotterell, 2012 ONCA 446. When he appeared in court expecting to be sentenced, Mr. Reynolds was confronted with a "surprise NCR hearing", to use the expression of amicus curiae. The evidence of Dr. McDonald was not really challenged, at least not in any effective way. Indeed, special duty counsel conceded that the person he was appointed to defend was NCR. Consequently, within roughly an hour from the start of this surprise NCR hearing, Mr. Reynolds was found NCR and was on his way to a maximum security hospital.
[11] In NCR proceedings, all participants in the process - defence counsel, Crown counsel and the trial judge - have an important duty to ensure all procedural safeguards are respected. Through a confluence of factors, that did not happen in this case. Although it might not have been apparent to Crown counsel and the trial judge at the time, this NCR application was essentially undefended. This may well have been due to the fact that special duty counsel was assigned to the case at the very last minute. When dealing with an opposed NCR application brought by the Crown, caution should be exercised to avoid proceeding prematurely, before the accused and counsel are properly prepared. This case, and others, demonstrates the undesirable consequences of proceeding too quickly. See Cotterell and Kankis.
[12] Accordingly, I agree that the hearing amounted to a miscarriage of justice within the meaning of s.686(1)(a)(iii), made applicable to summary conviction appeals by s.822. The appeal is allowed.
[13] In terms of remedy, Mr. Reynolds addressed me on the issue of whether there should be a complete new trial, or whether it should be restricted to the NCR issue. I should say, and I say so with respect, that when he addressed me, Mr. Reynolds appeared to be in a much better state of mind than he was when he appeared at trial. In a very articulate manner, he said that he did not wish to contest the facts underlying his convictions. Instead, he wishes to resist any type of NCR application that the Crown may choose to bring at the new trial.
[14] Accordingly, pursuant to s.686(8) of the Criminal Code, a new trial is ordered, limited to whether Mr. Reynolds was NCR at the time he committed the offences. See R. v. Ludecke (2008), 2008 ONCA 716, 93 O.R. (3d) 89 (C.A.) and R. v. Hartman (2015), 2015 ONCA 498, 326 C.C.C. (3d) 263 (Ont. C.A.). Of course, at the new trial, it will be up to the Crown to determine whether it wishes to pursue an NCR finding at this stage, especially given the amount of time Mr. Reynolds has spent detained on these charges, both before and after trial.
[15] Lastly, I wish to thank once again both counsel, Ms. Petrie and Ms. Presser, for their excellent assistance in this case.
TROTTER J.
Date of Reasons for Judgment: November 26, 2015
DATE OF RELEASE: November 26, 2015
COURT FILE NO.: CR-14-50000133-00AP
DATE: 20151126
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
KEVIN REYNOLDS
ORAL REASONS FOR JUDGMENT
TROTTER J.
Date of Reasons for Judgment: November 26, 2015
DATE OF RELEASE: November 26, 2015