WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(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.

111. Identity of victim or witness not to be published.— (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

112. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences.— (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( 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

BRACEBRIDGE COURT FILE NO.: CR-17-0032-00AP DATE: 20180716

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – J.G. Applicant/Appellant

Counsel: Doug Kasko, for the Respondent Erin Dann, for the Applicant/Appellant

HEARD: June 29, 2018

REASONS FOR DECISION

quinlan j.

Overview

[1] J.G. was a 16-year-old “moderately mentally retarded” Crown ward at the time when, represented by duty counsel, he was found not criminally responsible on account of mental disorder (NCR). The index offences were assaults in group home settings and breaches of the “keep the peace” term of probation and release orders. Since the NCR finding, J.G. has been detained for over a dozen years in a variety of institutions. He is currently detained at Waypoint Centre for Mental Health Care.

[2] J.G. is before me on an application to extend the time for filing an appeal of the 2005 NCR finding. For the reasons that follow, I grant J.G.’s application.

Test on an Application to Extend Time

[3] The authority to grant or refuse an extension of time is discretionary. No party is entitled to an extension of time as of right: R. v. Roberge, 2005 SCC 48, [2005] 2 S.C.R. 469, at para. 6; R. v. Menear (2002), 162 C.C.C. (3d) 233 (Ont. C.A.), at para. 20.

[4] The Ontario Court of Appeal set out the test on an application to extend time in Menear, at para. 20. The applicant must establish:

a. a bona fide intention to appeal within the appeal period;

b. an explanation for the delay; and,

c. merit to the proposed appeal.

[5] Depending on the case, the court may consider, among other things, whether the consequences of the conviction or finding are out of all proportion to the penalty imposed and whether the Crown will be prejudiced: Menear, at para. 21; R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at para. 23. Ultimately the chief consideration is whether the interests of justice require that an extension of time be granted: Menear, at para. 21; Ansari, at para. 23; R. v. Chen, 2016 ONCA 132, at para. 6. The interest of justice consideration is an important one in the context of an application to extend time to appeal a finding of NCR: R. v. Stirling, [2005] O.J. No. 5341 (C.A.), at paras. 7 and 12.

1. Bona Fide Intention to Appeal

[6] This is only one factor, and it must be weighed along with the other factors. This factor assumes less importance where, as here, the applicant at the time of the finding was a young person with significant cognitive disabilities who had been diagnosed with “moderate mental retardation”. As a consequence, the applicant had a limited capacity to understand the impact of being found not criminally responsible.

[7] J.G. filed an affidavit in support of this application in which he stated that, prior to being advised in 2016 by Ontario Review Board counsel, he had been unaware of the consequences of an NCR verdict and of his right of appeal. In view of J.G.’s cognitive limitations, the Crown declined to cross-examine him. J.G.’s evidence on this point is therefore unchallenged.

[8] J.G. said that he did not know what being found NCR meant until the Ontario Review Board counsel explained it to him: he thought a finding of NCR meant voluntarily going to a hospital to get help. He did not understand that it meant he would have to stay in the hospital “for a very long time”. He thought he would plead guilty and do some time if necessary and then he could go back to live in group homes. He maintains that had he known what it meant to be found NCR, he would have fought against that finding. This evidence is also unchallenged.

[9] J.G. wants to appeal the NCR verdict because he thinks he was criminally responsible for the offences he committed. He knew what he was doing when he committed the offences: he knew that it was wrong to assault and threaten staff members at his group homes, but he had a hard time controlling his anger.

2. Explanation for the Delay

[10] I accept that J.G. did not understand the consequences of the NCR verdict and, in particular, did not know that he would be detained indefinitely in forensic hospitals. I accept that J.G. was unaware that he could appeal the NCR verdict until being so advised by his Ontario Review Board counsel in 2016. As noted, his evidence on this point is unchallenged. In addition, in a 2006 assessment undertaken by Consulting Psychiatrist Dr. Carl Bradley for an Ontario Review Board hearing, Dr. Bradley opined that J.G. “still would not be able to properly instruct counsel and stand trial”. This is compelling evidence that explains in part the delay in appealing.

[11] Since being advised, J.G. has diligently pursued his appeal. J.G. immediately applied to Legal Aid, and, within weeks, a certificate authorizing counsel to provide an opinion on the merits of the appeal was issued. J.G.’s appellate counsel spent several months attempting, unsuccessfully, to obtain a transcript of the NCR proceedings. Appellate counsel obtained what information she could and provided an opinion letter to Legal Aid dated May 1, 2017. On the basis of the opinion letter, Legal Aid issued a full certificate on May 23, 2017. The application to extend time was filed on October 6, 2017. The delay in hearing the application was due to the availability of both Crown and appellate counsel and the infrequent times that the court hears criminal applications in Bracebridge.

3. Merits of the Proposed Appeal

[12] The central proposed ground of appeal is that the NCR verdict was unreasonable and unsupported by the evidence.

[13] The index offences involved repeated assaults by J.G. on group home co-residents and staff. When J.G. became angry, he threatened and assaulted co-residents and staff by spitting, hitting, and kicking. On one occasion, J.G. picked up a knife and began walking towards a co-resident saying, “does this scare you…because I’m going to cut your throat.” On another occasion, when left alone with a female staff member, J.G. grabbed her by the arm and said, “do you want me to break your arm?” He reported to the pre-sentence report author that he did, indeed, almost break the staff member’s arm by twisting it behind her back. Another time, he told the complainants, “I’m going to kick your ass,” before carrying out the physical assaults. J.G. told the pre-sentence report author that he needed to “stop hurting people” and “stop being mean to people”. He said he felt bad after he hurt people. He showed non-verbal indicators of shame at his behaviour when he spoke to a psychologist conducting an updated psychological assessment before the NCR finding in 2005.

[14] J.G. initially pleaded guilty to a number of offences. A pre-sentence report was obtained. The trial judge requested a report under s. 34 of the Youth Criminal Justice Act, S.C. 2002, c.1. Section 34 allows the court to obtain a medical, psychological, or psychiatric report for enumerated purposes, none of which involve an assessment of criminal responsibility. Pursuant to that request, Dr. Dick Meen, the Attending Psychiatrist and Clinical Director of Kinark Child and Family Services, Syl Apps Youth Centre, provided a Psychiatric Progress Note dated August 22, 2005. That note was subject to the proviso that the report was completed for the purpose of treatment planning and “was not intended to render opinions for court purposes”. Dr. Meen’s Psychiatric Progress Note and his follow-up letter dated September 8, 2005 appear to have been the only evidence tendered with respect to criminal responsibility at the NCR proceedings.

[15] Dr. Meen reported that there was no evidence that J.G. was suffering from hallucinations, delusions, or illusions. Dr. Meen concluded that J.G. had significant cognitive delays and was likely in the moderate range of developmental delay. He found that J.G. was clearly not able to address with any insight the consequence of his behaviour that had brought him before the courts. Dr. Meen concluded that J.G. “does not appreciate the nature and quality of his behaviours”, but when asked by the Crown to clarify, Dr. Meen wrote that “because of the degree of agitation and anxiety” that J.G. experienced at the time of the index offences, he was “not criminally responsible”. Dr. Meen opined that when J.G. was safe and not under stress, he was “capable of making wise decisions”.

[16] Mental disorder is defined in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), as a “disease of the mind.” The term “mental disorder” is a legal, not a medical concept: R. v. S.H., 2014 ONCA 303, 319 O.A.C. 58, at paras. 75-76; R. v. Luedecke, 2008 ONCA 716. 93 O.R. (3d) 89, at para. 60; R. v. Parks, [1992] 2 S.C.R. 871, at p. 898; R. v. Rabey (1977), 17 O.R. (2d) (C.A.), affirmed [1980] 2 S.C.R. 513. In order to determine whether a condition should be legally classified as a mental disorder, the trial judge must take a holistic approach. While expert medical evidence, such as a psychiatrist’s assessment, about the nature of the condition suffered by the accused is relevant and admissible for the determination of whether the condition constitutes a mental disorder, expert evidence does not alone conclude the inquiry. Put differently, a medical opinion is not dispositive of whether the condition amounts to a mental disorder: S.H., at paras. 79-80.

[17] Further, the trial judge is not bound to accept the opinion of Dr. Meen that J.G. was not criminally responsible. It is the role of the trier to determine whether the criteria for a verdict of not criminally responsible has been proved, and that determination is to be made on the basis of the evidence as a whole. Expert evidence is not determinative and is to be evaluated like the testimony of any other witness: R. v. Onochie, 2015 ONSC 7928, at para. 15.

[18] In order to make a finding of NCR, it is not sufficient for a court to be satisfied that an accused suffers from a mental disorder, even where that mental disorder is causative of criminal conduct. The court must be satisfied that the mental disorder rendered the accused incapable of appreciating the nature and quality of the act or its moral wrongfulness: R. v. Guidolin, 2011 ONCA 264, 280 O.A.C. 387, at paras. 16-17.

[19] It appears that the NCR verdict in this case was based on a finding that J.G. was incapable of appreciating the nature and quality of his conduct. This branch of the s.16 defence is rarely relied upon. It protects from criminal responsibility only those who are incapable of appreciating the physical consequences of their acts: R. v. Landry, [1991] 1 S.C.R. 99, at p. 109. As the Supreme Court commented in Kjeldsen v. The Queen, [1981] 2 S.C.R. 617, at p. 623:

To be capable of ‘appreciating’ the nature and quality of his acts, an accused person must have the capacity to know what he is doing; in the case at bar, for example, to know that he was hitting the woman on the head with a rock, with great force, and in addition he must have the capacity to estimate and to understand the physical consequences which would flow from his act, in this case that he was causing physical injury which could result in death.

[20] I accept the applicant’s position that an inability to make “wise decisions” does not provide a basis for an NCR finding. There was no evidence before the trial judge to suggest that J.G. did not know he was being physically assaultive. Rather, the evidence was consistent with a lack of impulse control and difficulties with anger management. J.G. lashed out with violence and anger.

[21] I agree with the applicant’s position that in the face of the admissions included in the facts underlying the index offences, and even in the absence of transcripts of the NCR proceedings, there is merit to the argument that a finding that J.G. did not understand the physical consequences of his actions cannot be supported, even on a reasonableness standard.

4. The Interests of Justice

[22] The Court of Appeal has recognized the unique consequences of an NCR verdict in considering applications for extensions of time. In Stirling, at para. 12, Feldman J. observed:

[T]he consequences of being found not criminally responsible are very significant for any accused because, unlike the case of a definite sentence, there is no time limit on the sentence. The applicant’s involvement in the index offences appears to have been minor, yet he is in indefinite incarceration within the mental health system. Although he remains a dangerous person, who is hopefully benefiting from his current placement, if he is not legally in the right place, it is in the interests of justice that an extension of time for an appeal be granted.

[23] J.G. was a vulnerable young person with significant cognitive disabilities at the time he was found NCR. He did not have his own counsel, but relied on the assistance of duty counsel. I am confident that all of the justice system participants dealing with J.G. were motivated by a desire to do what they perceived was best for him, and in that regard, they may well have been correct. However, that does not mean that the verdict was correct, or even reasonable. There is a real concern about the validity of the verdict. I accept that if J.G. had understood the consequences of an NCR verdict, he would have opposed it. J.G.’s significant cognitive disabilities explain the delay in seeking to appeal. The consequences of the NCR verdict have been profound: J.G. has been detained in forensic hospitals for over a dozen years for relatively minor assaults in a group home setting and consequently failing to the keep the peace. J.G. continues to suffer significant deprivation of his liberty. The Crown has not argued that it would be prejudiced by the granting of this application. The appeal could be argued based on the available information or by way of an application under s. 822 of the Code to determine the appeal by way of a trial de novo.

[24] I find that the interests of justice favour granting the extension of time.

Conclusion

[25] Having considered all of the relevant factors, I am satisfied that despite the significant delay, J.G. has established that the time in which to file a notice of appeal should be extended. Accordingly, the application for extension of time is granted.

Madam Justice E.A. Quinlan Released: July 16, 2018