Court File and Parties

COURT FILE NO.: SCA(P) 810/15 DATE: 20160622

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Mr. P. Renwick, for the Respondent Respondent

- and -

WINSOME HURDITT Ms. T. Morin, for the Appellant Appellant

HEARD: June 10, 2016 at Brampton

REASONS FOR JUDGMENT

[On appeal from the judgment of Justice J. Kerrigan-Brownridge dated January 20, 2015]

F. Dawson J.

1Following a trial before Justice J. Kerrigan-Brownridge the appellant was found guilty of two counts of criminal harassment, contrary to s. 264(2) of the Criminal Code, and one count of mischief, contrary to s. 430(1)(d) of the Criminal Code. The mischief charge alleged that the appellant had interfered with the lawful use or enjoyment of real property.

2The evidence at trial suggested that the appellant suffered from a mental illness, erroneously believed that she owned the real property where the offences occurred and believed she was entitled to require other tenants to vacate the property.

3Following the findings of guilt, which were made on June 3, 2014, the trial judge ordered an assessment to assist her in determining whether the appellant was “not criminally responsible” (NCR) for her actions on account of mental disorder, pursuant to s. 16 of the Criminal Code. That assessment was completed by Dr. M. Colleton, a forensic psychiatrist, who prepared a 20 page report.

4On January 20, 2015 the matter came back before the trial judge so that evidence could be heard and a determination made whether the appellant was not criminally responsible pursuant to s. 16. The only witness called at the hearing was Dr. Colleton. He adopted his report during his testimony.

5The appellant was not represented by counsel at the hearing. However, the court appointed counsel to act as amicus curiae. That counsel (not counsel on the appeal) had previously been appointed pursuant to s. 486.3 of the Criminal Code to cross-examine Crown witnesses at the trial.

6Amicus did not challenge Dr. Colleton’s opinion that the appellant “had available” a defence of NCR. Rather, he only asked questions directed to whether the trial judge should hold a disposition hearing or refer the appellant to the Ontario Review Board for a disposition hearing. Amicus made no submissions on whether a finding of not criminally responsible should be made.

7Perhaps this explains what occurred at the end of the hearing on the s. 16 issue. The trial judge gave only the following reasons:

Having reviewed the very thorough report of Dr. Colleton, and considering the sections under which the court is proceeding, as referred to by counsel, and considering the submissions of counsel today, I am of the view that I cannot readily make a disposition today based on the evidence that I hear (sic), and it is my view that the appropriate route to go is a referral to the Ontario Review Board to allow them to complete their assessment within 45 – their hearing, rather, within 45 days and render a disposition in the furtherance of assisting Ms. Hurditt in obtaining the treatment that she needs.

8After a recess Crown counsel asked the trial judge to make a finding of “not criminally responsible” and to endorse the information accordingly. The trial judge simply said that would be done. No reasons were ever given as to why the trial judge found the appellant not criminally responsible.

9It is clear from the record that, although the appellant did not testify or call any evidence, she was opposed to an NCR finding. The appellant attempted to personally challenge Dr. Colleton. Amicus, who was not her lawyer, told her she should remain quiet. The trial judge told the appellant that if she had concerns she should write a note to amicus.

10The appellant submits that the trial judge’s reasons are deficient because they do not permit meaningful appellate review. The appellant relies on R. v. Capano, 2014 ONCA 599, where a new trial was ordered in very similar circumstances.

11The respondent concedes that the reasons of the trial judge are deficient because they do not permit meaningful appellate review. I agree with that concession. However, the respondent submits that I should find that there is no substantial wrong or miscarriage of justice and dismiss the appeal by applying the proviso in s. 686(1)(b)(iii) of the Criminal Code. The respondent argues that Dr. Colleton clearly testified that the NCR defence was available to the appellant on the basis that she did not know that what she was doing was wrong, not on the basis that she did not appreciate the nature and quality of her acts. He submits that this distinguishes Capano.

12I am unable to accept the respondent’s submission. Having conceded that the appellant has been deprived of meaningful appellate review it can hardly be said that there is no substantial wrong. An accused is entitled to meaningful appellate review and if an accused has been deprived of that due to the non-existence or deficiency of reasons I have great difficulty in seeing how the proviso can be applied.

13Respectfully, the respondent has confused the distinction between a situation in which there is no error because the basis for a trial judge’s conclusions can be discerned from the record, (a situation where the reasons, although deficient, would still be open to meaningful appellate review), and a situation where the deficiency in reasons amounts to an error precisely because they do not permit meaningful appellate review: see R. v. Dinardo, 2008 SCC 24, at para. 32.

14It appears from the record that the trial judge misapprehended the issue she was to decide and moved straight to the following question about whether to hold a disposition hearing. The trial judge made no comprehensible findings regarding the NCR issue to be reviewed against the record. Her reasons do not give any indication that she considered the important issues in relation to her NCR finding: R. v. Sheppard, 2002 SCC 26, at para. 42. Nor can I tell from her reasons whether the fundamental principles which govern an NCR finding were properly applied: Sheppard, at para. 43.

15As was held in Capano, at para. 23: “[T]he reasons, read in the context of the record and the submissions on the live issues in the case, do not show that the trial judge seized the substance of the matter…” That comment applies equally here. In Capano there was no suggestion that the proviso in s. 686(1)(b)(iii) could be applied in very similar circumstances.

16The trial judge made no findings of fact at all and I am not in a position to make them on appeal. I have not seen or heard the witnesses. The respondent is asking me to become a fact finder. That I cannot do on an appeal.

17For these reasons the appeal is allowed and the finding of NCR and the convictions are set aside. Counsel for the respondent agrees that I have no jurisdiction to order a new trial limited to the NCR issue. A new trial is ordered before another judge of the Ontario Court of Justice.

F. Dawson J.