COURT FILE NO.: CR-18-18 AP DATE: 20200511
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – J.G. Appellant
Counsel: Daniel Thorpe for the Crown Erin Dann for the Appellant
HEARD: February 28, 2020
REASONS FOR DECISION
C. BOSWELL J.
Introduction
[1] Many Canadians will be familiar with the notion that a person may be found not guilty of a criminal offence because he or she was suffering from a serious mental illness at the time the offence was committed. They may be less familiar with what happens to a person who has been the subject of such a finding.
[2] When a person is found not criminally responsible for his or her criminal acts on account of a mental disorder (“NCRMD”), he or she is not released immediately into the community. Instead, he or she is remanded to a psychiatric facility to await a hearing before a provincial review board. The review board – whose members include mental health professionals – makes determinations about when and under what conditions the person may be reintegrated into society. An initial hearing must be conducted within 45 days of the NCRMD finding and reviews must be conducted at least annually for those detained beyond the first 45 days.
[3] The Waypoint Centre for Mental Health Care in Penetanguishene, Ontario is, amongst other things, a high security mental health hospital. It is one of the psychiatric facilities that a person may be remanded to following an NCRMD finding. Some people disparagingly refer to Waypoint as “Endpoint”, which is a cynical reflection of the fact that the future liberty of persons who have been designated as NCRMD is in the discretion of the Ontario Review Board (“ORB”). In other words, NCRMD designations result in the loss of liberty for an indeterminate duration.
[4] “JG” is a man who knows something about indeterminate detention. He has been detained at Waypoint, or other institutions like it, for the better part of 15 years.
[5] Between August 2004 and June 2005, JG, who was between 15 and 16 years old at the time and a ward of the Children’s Aid Society, was charged with multiple counts of assault and other offences. He entered pleas of guilt to some of the charges over a number of dates. For the purposes of sentencing, a pre-sentence report and a psychological assessment were completed. On September 15, 2005, all of JG’s guilty pleas were struck and an NCRMD verdict was entered, apparently on consent. JG was remanded to the Syl Apps Youth Centre in Oakville pending a hearing before the ORB. He has been detained since that time.
[6] JG, now 30, appeals the NCRMD finding and asks that convictions be substituted on all of the charged offences. It is JG’s assertion that the NCRMD finding was unreasonable. In particular, that there was no evidence capable of establishing that he suffered from a mental disorder that rendered him incapable of understanding either the nature and quality of his acts, or their moral wrongfulness. In the alternative, and in any event, he says the process that led to the NCRMD verdict was procedurally unfair to him.
[7] It is highly unusual, of course, to hear an appeal 15 years after a ruling was made. JG needed leave of the court to proceed with his appeal. He obtained it from Justice Quinlan on July 16, 2018.
[8] These reasons will address a number of topics, including the following: (i) JG’s circumstances and the charges he faced; (ii) Whether the absence of transcripts is an impediment to the appeal; (iii) Whether there was an adequate evidentiary basis to support a finding of NCRMD; (iv) The impact of the consensual nature of the verdict; and, (v) Whether a new trial is justified on the ground of procedural unfairness.
[9] I will begin with a general overview of the events leading up to the NCRMD verdicts.
General Overview
[10] The history behind this appeal is not exactly ancient. Nevertheless, it is not well-preserved. There are no transcripts of the proceedings for any of the dates that JG appeared before the court, including the critical date of September 15, 2005. Moreover, the original informations that were before the court are not available and only partial copies have been produced.
[11] JG’s personal circumstances are reflected in a Pre-Sentence report prepared in early 2005. He was born in mid-1989. His mother used drugs and alcohol heavily while she was pregnant with him and he has fetal alcohol syndrome in the result. He is developmentally delayed with significant cognitive issues and is very challenged in the area of anger management.
[12] JG was adopted as an infant. He was physically abused by the adoptive father. He demonstrated a pre-occupation with violence and killing from a young age. At age five, for instance, he told a pregnant teaching assistant that he wanted to kill her and her unborn baby by stabbing them with a knife.
[13] When he was seven, his adoptive mother died of cancer. His problems with violence and threatening increased after that. He continued to be physically abused by his adoptive father. He went in and out of the care of the CAS.
[14] JG has documented cognitive issues. He was diagnosed with attention deficit hyperactivity disorder when he was six. He was prescribed Ritalin, which had an improvement on his behaviour. He was subsequently assessed as functioning in the “moderately mentally retarded” range. He was placed in a home for developmentally delayed boys in Barrie in 1997. In January 1998 he officially became a ward of the CAS.
[15] JG moved from group home to group home. Placements invariably broke down due to his explosively violent behaviour. His first interaction with the criminal justice system occurred in 2003 when he tried to stab his housemother with a knife while he had her in a choke hold. He was convicted of assault with a weapon in January 2004 and received 12 months probation and a 2 year weapons prohibition.
[16] Between August 2004 and June 2005, JG was charged, over five separate informations, with a total of 15 different offences. All are assaults or breaches of release orders. I will review the charged offences briefly, providing what limited particulars are available. As I said, there are no transcripts available for any of the attendances in court. The particulars I am able to provide come from photocopies of the informations and Crown synopses prepared near the dates of the alleged offences.
The August 2004 Charges
[17] On an information sworn August 25, 2004 JG was charged with assault and assault with a weapon (a butter knife) in relation to an incident alleged to have occurred at the Town of Kearney, Ontario on August 25, 2004.
[18] In August 2004 JG was a Crown ward and a resident of Country Haven Acres in Kearney. He was teasing another resident. He allegedly picked up a butter knife from the kitchen and started walking towards the other resident, saying, “does this scare you, you fucking ass, because I’m going to cut your throat.” He was restrained by staff. While being restrained he spit in the face of a staff member.
[19] JG was detained in custody until September 1, 2004 when he was released on an undertaking which required him to keep the peace and be of good behaviour. His matter was put over a number of times until it was finally disposed of on September 15, 2005.
[20] Along the way, on July 28, 2005, a psychiatric assessment was ordered. It was prepared by Dr. Dick Meen, a psychiatrist at Syl Apps Youth Centre on August 26, 2005.
[21] These charges, along with all the others laid between August 2004 and June 2005, eventually landed before the court on September 15, 2005 for final disposition. It appears these charges were both withdrawn on that date.
The November 2004 Charges
[22] On an information sworn November 8, 2004 JG was charged with assault with a weapon (a flower pot), breach of an undertaking and breach of probation, all in relation to an incident alleged to have occurred in Huntsville on November 7, 2004.
[23] Following the incident in Kearney, JG was moved to a Country Haven Acres home in Huntsville, Ontario. JG was allegedly “out of control” and was outside the residence threatening to kill himself and to destroy property. A staff member opened the back door and JG allegedly threw a flower pot at her, striking her in the back of the head.
[24] The undertaking he was alleged to have breached was the one entered in Youth Court on September 1, 2004. The breach of probation related to the 12 month order of probation imposed in January 2004.
[25] It appears that on December 7, 2004 JG entered pleas of guilt to each of these three counts, with the assistance of duty counsel, Mr. Thomson. A pre-sentence report (“PSR”) and a psychological assessment under s. 34 of the Youth Criminal Justice Act were ordered on that date. The PSR was provided on January 27, 2005. The psychological assessment on February 11, 2005. I will come back to these documents a little later.
[26] Following his guilty pleas, JG appears to have been released, pending sentencing, on an undertaking to keep the peace and be of good behaviour.
[27] Following a number of adjournments these charges, like all others, landed on September 15, 2005 for final disposition. I will shortly come to what happened on that date, which is central to this appeal.
The December 2004 Charges
[28] On an information sworn December 21, 2004, JG was charged with assault, uttering a threat to cause bodily harm and breach of recognizance, all in relation to an incident alleged to have occurred in Huntsville on December 18, 2004.
[29] JG was alleged to have gotten into an altercation with a staff member during which he purportedly grabbed her arm and asked, “do you want me to break your arm?” He twisted the arm as he did so.
[30] The “recognizance” he was alleged to have breached was the undertaking given in Youth Court on December 7, 2004.
[31] JG, again with the assistance of duty counsel, Mr. Thomson, entered guilty pleas on January 4, 2005 to counts 1 and 3. Count 2 – uttering threats – was withdrawn. The matter was adjourned for sentencing and was eventually completed on September 15, 2005. Again, I will canvass what happened on that date momentarily.
The March 2005 Charges
[32] On an information sworn March 9, 2005 JG was charged with assaults alleged to have occurred in North Bay on February 22, 2005 and March 3, 2005.
[33] By February 2005, JG was residing at the Near North Youth Centre in North Bay. It was alleged that he became agitated while in an outdoor recreational area on February 22, 2005. He was asked to go to his room. He became confrontational. When he got to his room he became threatening and eventually kicked one of the staff members in the leg and struck him in the forehead.
[34] It was further alleged that he assaulted another youth during a basketball game on March 3, 2005. He purportedly grabbed the youth’s arms from behind, hit him on the back of his head and kicked him in the leg.
[35] JG, again with the assistance of duty counsel, Mr. Thomson, entered guilty pleas on both counts on April 7, 2005. These matters were put over for sentencing and adjourned on a number of occasions, eventually landing, along with all of JG’s other outstanding matters, on September 15, 2005.
The June 2005 Charges
[36] On an information sworn June 22, 2005 JG was charged with assault with a weapon (a phone) and breach of an undertaking in relation to an incident alleged to have occurred in the Township of Armour on June 22, 2005.
[37] By June 2005 JG was living in another group home in Armour Township, in the District of Parry Sound. He is said to have become angry with a staff member who was explaining some of the house rules to him. He allegedly picked up a portable phone and threw it at the staff member, narrowly missing his head.
[38] JG was remanded into custody on these charges and held until September 15, 2005. At that time, a plea of not guilty was entered on count one – the assault – and count two was withdrawn. The assault charge was then dealt with, along with all other outstanding matters through one global NCRMD verdict.
Summary
[39] As of September 15, 2005, JG had been convicted, on the basis of guilty pleas, to the following offences: three counts of assault, and one each of assault with a weapon, breach of an undertaking, breach of probation and breach of recognizance.
[40] One count of assault remained outstanding, to which he had entered a plea of not guilty.
[41] All other charges were withdrawn.
September 15, 2005 and the NCRMD Verdicts
[42] The record is unclear as to who raised the NCRMD defence or when. It appears clear that all five of the informations outstanding against JG were marshalled and brought before the court on September 15, 2005 for the purpose of the NCRMD verdict. JG was again represented on this occasion by duty counsel, Mr. Thomson.
[43] This appeal was argued on the basis that the NCRMD finding was made on consent.
[44] Justice W.G. Beatty was presiding on September 15, 2005. He struck all prior guilty pleas entered by JG and he substituted verdicts of not criminally responsible. The same verdict was recorded on the one count of assault from June 2005 with respect to which JG had entered a plea of not guilty.
[45] A warrant of committal was signed by Justice Beatty remanding JG to the Syl Apps Youth Centre in Oakville pending his initial hearing before the ORB.
[46] With that general overview completed, I will set out the parties’ positions then move on to a brief discussion of the controlling legal principles that govern the issues in this application.
The Parties’ Positions
[47] JG’s counsel takes a two-pronged approach to the appeal.
[48] First, she argues that the NCRMD verdict was unreasonable. She contends that the medical evidence before the court was not capable of supporting the verdict. The basis of the NCRMD verdict was that JG suffered from a mental disorder that rendered him incapable of understanding the nature and quality of his actions. But the content of the various assessment reports before the court made it apparent that he did understand both the nature and quality of his actions.
[49] Second, she argues that the procedure that led to the NCRMD verdict was unfair to JG. He was, she submits, a young person and a Crown ward who suffered from a significant intellectual disability. In the circumstances, she says, the court should have taken a careful and restrained approach to the NCRMD proceedings. She said the proceedings fell short in three key respects: (a) While Dr. Meen had some concerns about fitness, it appears that a fitness assessment was never ordered; (b) Though it was the Crown who sought an NCRMD verdict, no order for an assessment of criminal responsibility was ever made. The Crown was never compelled, in the circumstances, to meet its onus under s. 672.12 of the Criminal Code to establish grounds to doubt criminal responsibility in order to obtain an assessment report; and, (c) An NCRMD defence cannot be advanced or consented to on behalf of an accused person in the absence of informed instructions. There is no evidence here that JG understood the profound consequences of an NCRMD verdict and his right to oppose it.
[50] The Crown’s position is that the NCRMD verdict was legally justified and should not be disturbed.
[51] The Crown submits that there is much about the proceedings that can only be speculated about, given that there are no transcripts. For instance, it is not clear who advanced the NCRMD defence. The Crown does not agree with the defence assertion that the Crown raised the issue.
[52] One thing that appears clear, however, is that the NCRMD verdict was consensual and, as such, should be not be lightly interfered with. The court must be guarded against any attempts to circumvent the ORB’s ongoing jurisdiction and expertise.
[53] There was, in the Crown’s submission, an adequate evidentiary basis for a finding that JG was not aware of the nature and quality of his actions at the time the alleged offences occurred. This court has to look at the entire evidentiary record before the Youth Court Justice. The evidence is clear that JG lacked insight into how his conduct was initiated. He was unable to predict what would trigger an outburst and unable to control them. Citing R. v. Ooman, [1994] 2 S.C.R. 507 at page 519, the Crown submitted that irresistible impulse, as a symptom of a disease of the mind, may render a person incapable of exercising the cognitive function required for an appreciation of the nature and quality of his actions at the time they are committed, even though he may later realize he committed the act and know that it was wrong.
[54] Finally, there were, in the Crown’s view, sufficient procedural safeguards to adequately protect the interests of JG. The court can only speculate, on the record before it, about what discussions took place between JG and his counsel and between counsel and the court. There is simply an insufficient basis to interfere with the verdict as rendered.
The Legal Framework
[55] JG contends that the NCRMD verdict was unreasonable – that it was not supported by the evidence – despite its consensual nature. I will accordingly address the fundamental principles of criminal responsibility in Canada, followed by an overview of the principles that must be applied to the assertion of an unreasonable verdict. I will then briefly review the principles that govern my consideration of the procedural fairness issue.
Criminal Responsibility
[56] Canadian law presumes that people are autonomous and rational beings whose acts are capable of attracting criminal liability. In other words, there is a presumption of mental soundness.
[57] At the same time, Canadian law recognizes the unfairness of imposing criminal sanctions on accused persons who were not acting autonomously or rationally at the time an offence was committed. The presumption of mental soundness is therefore a rebuttable one.
[58] In harmony with the foregoing principles, the Criminal Code provides for an exemption from criminal responsibility in certain circumstances. The exemption is codified in s. 16, which provides:
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. (2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities. (3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
[59] JG was a minor at the time of the relevant offences and, as such, was governed by the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”). Section 141(1) of the YCJA expressly provides that s. 16 and all of Part XX.1 (the mental disorder provisions) of the Criminal Code apply to proceedings under the YCJA.
[60] Section 16 of the Criminal Code has been described by the Supreme Court as giving “effect to society’s interest in ensuring that morally innocent offenders are treated rather than punished, while protecting the public as fully as possible.” See R. v. Bouchard-Lebrun, 2011 SCC 58, at para. 52.
[61] To be exempt from criminal responsibility due to a mental disorder, an accused person must satisfy two factors on a balance of probabilities. First, that he or she was suffering from a mental disorder at the time of the offence. Second, that he or she was, at the relevant time, incapacitated because of the mental disorder. These factors were described by Justice Watt in R. v. Dobson, 2015 ONSC 2865, affirmed, 2018 ONCA 589, as follows:
The exemption has two components: the first is a condition, a mental disorder. The second is an incapacity associated with that condition. On its own, a mental disorder does not exempt anyone from criminal responsibility. A mental disorder only exempts from criminal responsibility if it renders a person incapable of appreciating the nature and quality of an act or omission, or incapable of knowing that the act or omission was wrong. (Para. 66).
[62] To be capable of appreciating the nature and quality of one’s actions, a person needs to have the capacity to know what he or she is doing and to estimate and understand the physical consequences that will flow from his or her actions: Dobson, at para. 103.
[63] To be capable of knowing that one’s actions are wrong, a person must have the capacity to be aware that his or her actions would be considered wrong according to the ordinary moral standards of reasonable members of society: Dobson, para. 121.
The Assertion of an Unreasonable Verdict
[64] Under s. 686(1)(a)(i) of the Criminal Code, an appeal against a verdict that an accused is not criminally responsible on account of a mental disorder may be allowed where the court is satisfied that the verdict is unreasonable or cannot be supported by the evidence.
[65] An unreasonable verdict, or one not supported by the evidence, is a verdict that a properly instructed trier of fact, acting judicially, could not reasonably have rendered. See R. v. Calnan, 2019 SCC 6, at para. 165 and R. v. Biniaris, [2000] 1 S.C.R. 381, at para. 36.
[66] As Watt J.A. observed in R. v. Roks, 2011 ONCA 526, at para. 120, the test for unreasonableness includes both objective and subjective assessments of the trial evidence. He went on to describe the process undertaken on an appeal under s. 686(1)(a)(i) of the Criminal Code as follows, at para. 122:
Under s. 686(1)(a)(i), an appeal court is entitled to review the evidence adduced at trial, to re-examine that evidence and to reweigh it, but only for the purpose of determining whether the evidence, as a whole, is reasonably capable of supporting the trial judge’s conclusion: R. v. Burns, [1994] 1 S.C.R. 656, at p. 663. We must bring to bear on the exercise of evidentiary review, re-examination and reweighing, our assessment, informed by judicial training and experience, not simply our own personal experience and insight: Biniaris, at para. 42.
[67] If, after reviewing the trial evidence in the required manner, this court is satisfied that there was a reasonable basis for finding, on a balance of probabilities, that JG suffered from a mental disorder at the time of the offences that rendered him incapable of appreciating the nature and quality of his acts or of knowing they were wrong, then the appeal must fail. See R. v. Fraser (1997), 33 O.R. (3d) 161.
[68] Special care must be taken when assessing the evidence supporting an NCRMD verdict when the verdict was raised by defence counsel and proceeded on a consensual basis. The Court of Appeal for Ontario addressed this issue in R. v. Guidolin, 2011 ONCA 264, where Doherty J.A. provided the following caution at paras. 11-13:
11 There is no absolute bar preventing the appellant from challenging the NCRMD finding even where it was the appellant who raised the claim at trial. However, finality concerns, as well as the need to preserve the effective operation of the mental disorder provisions in the Code, require that the court look very closely at any attempt to resile by way of appeal from an NCRMD verdict sought at trial. The appellant has been under the jurisdiction of the Board for several years now. They have made dispositions based on their expertise as applied to current psychiatric information. Entertaining an appeal against an NCRMD verdict where the claim was advanced by the defence effectively allows that individual to circumvent the Board's ongoing jurisdiction and requires this court to make a disposition that does not have regard to the psychiatric and treatment developments that have occurred in the years between the NCRMD verdict and the hearing of the appeal.
12 When approaching an argument that an NCRMD verdict is unreasonable, where it was the appellant who sought that verdict at trial and the Crown agreed that the verdict was appropriate, this court should have regard to the position of the appellant and the consensual nature of the proceedings when assessing the adequacy of the material before the trial judge. One can hardly expect that the medical opinion evidence will contain the detail that would be found in a contested proceeding, or that the medical evidence will answer all of the questions that could possibly have been raised had the matter been contested.
13 While acknowledging that the position of the defence at trial and the consensual nature of the proceedings are relevant to the reasonableness assessment, if on a generous reading of the evidence, the NCRMD finding cannot pass the reasonableness standard, that finding cannot stand regardless of the negative impact an order setting it aside may have on the appellant's treatment and the protection of the public.
Procedural Fairness
[69] JG’s counsel argued, in the alternative, that the process was unfair to him and that the unfairness necessitates a new trial.
[70] Whenever a person’s liberty is at stake, s. 7 of the Charter is engaged. Section 7 provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[71] What is required by the principles of fundamental justice can vary depending on the circumstances of the case. But there are certain core features that are engaged whenever the state seeks to deprive someone of their liberty. They were outlined by the Supreme Court in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 at paras. 28-29:
28 The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. "It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process": United States of America v. Ferras, 2006 SCC 33 at para. 19. This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John.
29 This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for s. 7 to be satisfied, each of them must be met in substance.
[72] There is no dispute that, as Rosenberg said in R. v. Szostak, 2012 ONCA 503, at para. 64, “The consequences of a finding of NCRMD can be so profound that a high degree of procedural fairness and scrupulous attention to the rights of the accused are required.”
[73] There is also no dispute that JG has been prejudiced, at least at a general level, by the NCRMD verdict. The assaults he was charged with were relatively minor and he was a youth. At worst, he would have faced a modest amount of time in closed custody. Instead, he has been subject to an indefinite detention in a hospital – now almost fifteen years and counting – which will continue until he is no longer a significant threat to the safety of the public.
[74] But general prejudice is not enough to establish an breach of procedural fairness warranting a retrial. The court must examine the allegations of procedural unfairness and determine if the NCRMD verdict would not have been made but for such unfairness. See Szostak, para. 65.
Discussion
The Absence of Transcripts
[75] As I have noted, transcripts are not available for any of the Youth Court hearings involving JG. To be clear, this is not a criticism of counsel. The recordings of those proceedings apparently no longer exist.
[76] Rule 8 of the Criminal Appeal Rules, SI/93-169 requires the filing of a transcript of the proceedings under appeal, subject to certain recognized omissions. Given the circumstances of this case, the Crown conceded that the appeal could be perfected without the filing of transcripts.
[77] JG’s counsel took the position, citing R. v. Hayes, [1989] 1 S.C.R. 44 and R. v. Dobis (2002), 58 O.R. (3d) 536 (C.A.) that an absence of transcripts is not a bar to the hearing of an appeal. The controlling question is whether missing transcripts prejudice an appellant’s ability to appeal a conviction or a respondent’s ability to respond to an appeal. Here, there is no significant prejudice, she contended, because there is a complete record of the medical evidence that was available in support of the NCRMD verdict. This court is able to make its independent assessment of the sufficiency of that evidence.
[78] Counsel’s fall-back position was that if this court concludes that the record is impervious to appellate review, the remedy is a new trial – either by remitting the matter back to the summary conviction court, or by conducting a trial de novo pursuant to s. 822(4) of the Criminal Code.
[79] The Crown agreed that the absence of transcripts is not a bar to the appeal proceeding. The Crown’s position is simply that the court must be guarded when considering the chain of reasoning that led to the NCRMD verdict, since there is no record of it.
[80] I agree with counsel that the absence of transcripts, while not helpful of course, is not an insurmountable impediment to the appeal proceeding. JG’s position is not that there was a flaw in the chain of reasoning of the presiding justice. His position is that the evidence before the court was insufficient to ground the NCRMD verdict. There is nothing to indicate that this court does not have a full record of the evidence going to the issues of condition and incapacity in the form of various reports completed with respect to JG. That is to say, there is no reason to conclude that either the appellant or respondent are prejudiced in any significant way by proceeding with the appeal without transcripts.
The Evidence of Condition and Capacity
[81] Recall that a verdict of NCRMD requires two distinct findings on a balance of probabilities. First, that the accused suffered from a condition – a mental disorder – at the time of the alleged offences. Second, that the mental disorder resulted in an incapacity – either to appreciate the nature and quality of an act or omission, or to know that the act or omission was wrong according to the ordinary moral standards of reasonable members of society.
[82] There is no formal record of what evidence was before Justice Beatty on September 15, 2005. What is known is that certain materials were forwarded from the court to the Ontario Review Board in advance of JG’s initial hearing before that Board. It is reasonable, in my view, to infer that those same materials were available to Justice Beatty. They consist of: (a) A Pre-Sentence report prepared by a probation officer, Lynn Currie, dated January 27, 2005; (b) A psychological assessment prepared by Dr. Jeffery Phillips, dated February 11, 2005; (c) A pre-admission summary prepared by a social worker, Sajjad Jaffery, dated July 11, 2005; (d) A psychiatric progress note prepared by Dr. Dick Meen, dated August 22, 2005; (e) An update to the psychological assessment of February 11, 2005 prepared by Dr. Julia R. Holt, dated August 26, 2005; (f) A letter from Crown counsel to Dr. Meen, dated August 29, 2005; and, (g) Dr. Meen’s response to the Crown, dated September 8, 2005.
[83] It is of some consequence to note that none of the assessments prepared in relation to JG were prepared for the purpose of an NCRMD inquiry. The reports of Dr. Phillips, Dr. Meen and Dr. Holt were prepared further to orders made under s. 34 of the YCJA. Section 34(2) provides a Youth Court Justice with the authority to order an assessment for any one or more of the following purposes: (a) considering an application under section 33 (release from or detention in custody); (b) making its decision on an application heard under section 71 (hearing — adult sentences); (c) making or reviewing a youth sentence; (d) considering an application under subsection 104(1) (continuation of custody); (e) setting conditions under subsection 105(1) (conditional supervision); (f) making an order under subsection 109(2) (conditional supervision); or (g) authorizing disclosure under subsection 127(1) (information about a young person).
[84] None of the purposes enumerated in s. 34(2) have anything to do with the NCRMD analysis. That is not to say that a report prepared pursuant to an order under s. 34 cannot be considered in relation to an NCRMD analysis. I simply point out that none of the reports filed were prepared expressly with the NCRMD issue in mind, save for, arguably, Dr. Meen’s letter to Crown counsel dated September 8, 2005.
[85] I do not intend to canvass the entire contents of the foregoing reports. Instead, I will break down the evidence contained in the reports along the two lines of inquiry that the court must make: condition and incapacity. I will begin with the evidence relating to condition.
Evidence on Condition
[86] Dr. Jeffrey Phillips is, or at least was in 2005, a clinical psychologist with a practice in North Bay. He conducted what appears to have been a thorough psychological assessment in response to the order of Justice Beatty on December 7, 2004.
[87] In addition to reviewing referral information and conducting oral interviews with JG, Dr. Phillips administered more than a dozen standardized tests. He concluded that JG suffered from moderate mental retardation, with academic skills at or below the grade 1 level and without the potential to exceed the grade 2 level.
[88] The diagnosis of “moderate mental retardation” was used in earlier versions of the Diagnostic and Statistical Manual of Mental Disorders. [^1] It is not used in the current version of that manual, the DSM-V. The language now used is “intellectual disability”. Persons suffering from moderate intellectual disability, according to the DSM-V, can generally take care of themselves, travel to familiar places in their community, and learn basic skills related to safety and health. Their self-care requires moderate support.
[89] Dr. Phillips opined that JG would have severe difficulty knowing what was going on around him and coming up with appropriate ways to respond. JG was fixated on angry and aggressive responses to situations. He thought perhaps JG may have neurological damage due to drug and alcohol abuse by his natural mother when she was pregnant.
[90] Dr. Phillips also identified substantial symptoms of ADHD including attention issues, over-focus tendencies, limbic system [^2] associated symptoms and symptoms consistent with Amens “Ring of Fire” ADHD. The “Ring of Fire” symptoms include frequently demonstrated anger or aggression; cyclic mood changes; rigidity in thinking; mean, nasty or insensitive behaviour; and unpredictable behaviour.
[91] Dr. Dick Meen was, in August 2005, the attending psychiatrist and clinical director of Syl Apps Youth Centre in Oakville. He conducted an in-person interview with JG in response to a s. 34 assessment order on July 28, 2005. His report, dated August 22, 2005, is based on the interview, his review of JG’s file and consultation with other members of what he described as a “multidisciplinary clinical team brought together to consider the s. 34 request”.
[92] Dr. Meen noted that there was no evidence during the interview that JG was suffering from hallucinations, delusions or illusions. He expressed the opinion that JG suffered from significant cognitive delays and was likely in the moderate range of developmental delay. He also suffered from explosive disorder, attachment disorder and the chronic effects of trauma and abuse.
[93] In a follow-up note of September 8, 2005, Dr. Meen opined that JG was suffering from a cognitive disorder complicated by a general anxiety disorder and an impulse disorder with conduct disorder.
[94] The other members of the “multidisciplinary clinical team” referenced by Dr. Meen were a social worker at Syl Apps named Sajjad Jaffery and a psychologist named Dr. Julia R. Holt.
[95] Mr. Jaffery prepared a pre-admission summary with respect to JG and his anticipated arrival at Syl Apps Youth Centre on July 12, 2005. He described JG as 16 years old, 5’8” tall and 231 lb. His two-and-a-half page report is essentially a history of reports compiled during his time in care. He noted that JG was designated “special needs” based on his cognitive limitations and his frequent and unpredictable episodes of acting out violently against staff. He further noted that during home visits JG had indulged in violent behaviours such as fire setting, swinging an axe, grabbing a female’s breasts, killing a dog and two goats and damaging property. The source of his information about these purported incidents is unknown.
[96] Dr. Julia R. Holt was, in August 2005, a consulting psychologist with Syl Apps Youth Centre. She met with JG to update Dr. Phillips’ report dated February 11, 2005. Her report was produced on August 26, 2005.
[97] Dr. Holt administered the Weschsler Abbreviated Scale of Intelligence, which is one of the standardized tests Dr. Phillips had administered earlier in the year. Her results confirmed those of Dr. Phillips – that JG had a marked cognitive deficit. She said his limitations in communication and reasoning could be expected to undermine his decision-making, interfere with his interpersonal relationships and compromise his ability to cope with strong emotions.
[98] A mental disorder, for purposes of s. 16 of the Criminal Code, is a disease of the mind. See s. 2. A “disease of the mind” is a legal concept, but obviously one that has a medical dimension to it. See R. v. Bouchard-Lebrun, 2011 SCC 58, at para. 61. In other words, while medical expertise is undeniably important in characterizing any particular condition as a disease of the mind, whether a court does so is a legal matter for the trial judge to determine.
[99] For forty years trial judges have had the benefit of the Supreme Court’s instruction on what sort of condition qualifies, legally, as a disease of the mind. In Cooper v. The Queen, [1980] 1 S.C.R. 1149, Justice Dickson, later Chief Justice, said that the concept of a disease of the mind “embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.” That definition has stood the test of time and continues to govern today.
[100] To record an NCRMD verdict, Justice Beatty must necessarily have found that there was evidence before him that satisfied him, on a balance of probabilities, that JG suffered from an illness, disorder or abnormal condition that impaired his mind or its functioning.
[101] There is no record of what specific findings Justice Beattie made regarding any illness, condition or disorder that JG suffered from. But there is, in my view, ample evidence in the record to support the conclusion that JG suffered from an intellectual disability in the moderate range. In addition, there is evidence that he suffered from ADHD, explosive disorder, attachment disorder, impulse disorder and generalized anxiety disorder, amongst other problems.
[102] In my view, the NCRMD verdict cannot be considered unreasonable on the basis that there was insufficient evidence that JG suffered from a mental disorder at the time of the alleged offences. I will move on to consider the state of the evidence on the issue of incapacity.
Evidence on Incapacity
[103] There is very limited evidence about JG’s capacity to either understand the nature and quality of his acts, or to know that they are wrong. Again, this likely reflects the fact that none of the professionals who assessed JG were asked to do so specifically in relation to the issue of criminal responsibility.
[104] Dr. Phillips found that JG was extremely limited in regard to his ability to apply logical analysis to stressful situations. His cognitive disability would make it difficult for him to understand his circumstances and to respond to them appropriately. Dr. Phillips noted that JG acknowledged that his temper was quick and hot and that he had a tendency to “fly off the handle”. He said JG indicated that he wanted to behave well, but that he simply could not control his behaviour.
[105] Dr. Holt opined, on the basis of JG’s responses to standardized testing, that it is unlikely that there was any planning behind JG’s angry outbursts and that his cognitive processing skills are inadequate for managing anger-related problems. She noted, like Dr. Phillips had, that JG readily admitted that he had anger-control issues. He told her that he feels bad after he has hurt someone while angry.
[106] Dr. Holt administered a standardized test known as the Adolescent Anger Rating Scale. One of the items on the test was the statement, “When I am angry, I will hurt the person who upset me”. He answered no.
[107] At the end of her report, Dr. Holt concluded that JG’s significant cognitive deficits limit his ability to understand the complexities of interpersonal interactions, to manage his emotions and to control his behaviour.
[108] Dr. Meen, for reasons not clear to me, assessed JG for purposes of fitness to stand trial. It does not appear that fitness was ever a live issue. At any rate, Dr. Meen’s inquiries led him to conclude that JG probably met the criteria with respect to fitness.
[109] He went on to focus his interview with JG on JG’s ability to process information and appreciate the nature and quality of his acts. He made the following observations regarding JG in his report of August 26, 2005: (a) He was unable to address with any insight the consequences of the behaviour that brought him before the court; (b) He did not appreciate or understand the manner in which his assaultive behaviour was initiated and his responsibility regarding that behaviour; and, (c) He wanted to go to Syl Apps Youth Centre for treatment because he knew he was in significant difficulty, but he was not sure why he was in such difficulty.
[110] Dr. Meen concluded his report with the following paragraph:
It is my opinion that [JG] does not appreciate the nature and quality of his behaviours that brought him before the courts and that he continues to be a significant risk to be assaultive and explosive and that he requires a secure treatment setting in order to address these issues.
[111] Crown counsel wrote to Dr. Meen on August 29, 2005. She included with her letter Crown synopses for the five occurrences that led to charges against JG. She advised Dr. Meen that for each charge the court had to be satisfied on a balance of probabilities that an NCRMD verdict had been made out. She made very specific inquiries of him. I think it worthwhile to set out precisely what she asked, to put Dr. Meen’s reply into perspective:
Your report addresses the issue of [JG’s] appreciation of the nature and quality of his acts in a general way. I assume therefore that you are satisfied he knows his acts are wrong. Having the alleged facts before you, are you satisfied that for each event he did not appreciate the “physical nature, character and physical consequences of his act”? (That is how the courts have defined the test for this arm of the defence). Your report frames it as the youth not being able to address with any insight the consequence of his behaviour that brought him before the courts and not understanding the basis for the initiation of his behavior and his responsibility for it. Could you clarify the basis for your conclusion that he suffered from a disease of the mind of such severity as to render him incapable of appreciating the nature and quality of these acts? Would consequences for prior assaults impact on his understanding for later assaults? For example, in the matters before our court, the police have attended five times and he has been charged and put before the court. Are you saying he will never appreciate the nature and quality of his acts given his cognitive limitations? Would you differentiate based on some of the allegations his understanding of that issue?
[112] In reply to the Crown, Dr. Meen met with JG on two further occasions to discuss the alleged offences. He said that it became clear to him “that at the time of these events, because of the degree of agitation and anxiety that [JG] was experiencing, that he was “not criminally responsible” on those occasions.
[113] Dr. Meen opined that JG would gain only minimal understanding of the consequences of an assault by virtue of the consequences of earlier assaults he had committed. He would not be able to make the connections.
[114] He went on, however, to say that when JG was safe and not under stress he was capable of making wise decisions. His capacity to make informed decisions falls off precipitously when he becomes stressed and anxious.
[115] There is a dearth of evidence that JG did not have the capacity to know that his assaultive behaviour was wrong. He may have had difficultly controlling his anger and his actions, but the evidence is that he felt bad about it, perhaps even somewhat shameful.
[116] The evidence of incapacity, such as it was, focused on whether JG understood the nature and quality of his actions. As I set out above, to be capable of appreciating the nature and quality of his actions, JG needed to have the capacity to know what he was doing (in this case assaulting others) and to estimate and understand the physical consequences that would flow from his actions.
[117] In a contested hearing, I would be inclined to the view that there is insufficient evidence to satisfy me, on a balance of probabilities, that JG did not have the capacity to understand the nature and quality of his actions. It appears clear to me that JG had a limited capacity to understand the dynamics of human relationships. He had a serious problem with anger management and impulse control. And he lacked the ability to really appreciate why his behaviour was so problematic.
[118] Having said that, the lack of a capacity to understand the nature and quality of one’s actions is a high threshold. JG appeared to know, when he was assaulting someone, that he was indeed assaulting them. Take some of his alleged threats for instance. During the incident in August 2004, he was alleged to have said, while brandishing a butter knife, “does this scare you, you fucking ass, because I’m going to cut your throat.” That language is consistent with a person who understands that a knife is threatening; it may be used as a weapon. Indeed, it may be used to cut someone’s throat.
[119] During the December 2004 incident, JG allegedly said, while twisting a staff member’s arm, “do you want me to break your arm?” Again, that language is clearly consistent with someone who understands that he is twisting another person’s arm and that the result of the application of his force may be a broken arm.
[120] I would have a very difficult time, on this evidentiary record, making an NCRMD finding, had the matter been contested.
[121] But I must make two observations. First, the matter was not contested. Second, the test is not about what finding I might have made, particularly under different circumstances. The test is whether there was any evidence, upon which a trier of fact, acting reasonably, could have reached an NCRMD verdict.
[122] The answer to the second question is certainly yes. Dr. Meen expressed the opinion that JG did not understand the nature and quality of his actions during any of the alleged offences. That is evidence that, if accepted on its face, is capable of supporting an NCRMD verdict.
[123] The jurisprudence requires me to consider the evidence through the lens of judicial experience. And in doing so, I find myself tugged in different directions.
[124] On the one hand, as I expressed, I would not take Dr. Meen’s opinion at face value. I would consider the facts and circumstances of the case as a whole in determining how much weight I was prepared to place on his expressed opinion. And I would have concerns, for the reasons I expressed.
[125] On the other hand, I have to consider very carefully the fact that this was a consensual hearing. Dr. Meen’s expressed opinions were not challenged. They were accepted by both Crown and duty counsel acting in defence of JG.
[126] Moreover, the evidence has to be given a generous reading. Taking that perspective, I understand Dr. Meen to be saying substantially more than that JG lacked insight or was unable to make informed decisions. He was saying that JG is unable to control his impulses. He has explosive anger and has no insight into where it comes from or why it arises. But when it does, he is simply unable to control it, or, at the time, appreciate the nature and quality of his actions.
[127] In R. v. Ooman, [1994] 2 S.C.R. 507, at page 519, Justice McLachlin cited, approvingly, the following portion of an article written by G. Arthur Martin Q.C. (later Martin J.A.) entitled, “Insanity as a Defence” (1965-66), 8 Crim. L.Q. 240 at page 246:
A person may have adequate intelligence to know that the commission of a certain act, e.g. murder, is wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing and the considerations which to normal people would make the act right or wrong. In such a situation the accused should be exempt from criminal responsibility.
[128] Dr. Meen concluded that JG, when in a heightened state of anxiety, would become obsessed by impulses that were the product of a mental disorder. He could not bring his mind to bear on the nature of what he was doing, or its likely consequences.
[129] In my view, on a generous consideration of the evidence, there was a sufficient basis to properly ground the NCRMD verdict, particularly given that it was made on consent.
[130] Had the verdict been contested, I have no doubt that experienced counsel could have made some inroads into the reliability of Dr. Meen’s opinion. But this was not a contested hearing. It was consensual. I turn now to the significance of the nature of the hearing.
The Consensual Nature of the Proceedings
[131] As Justice Doherty instructed in R. v. Guidolin, 2011 ONCA 264, as above, appellate courts must keep in mind the consensual nature of the proceedings when assessing the adequacy of the material before the trial judge. The evidence before the trial judge must be given a generous reading.
[132] There is no doubt that the medical reports before Justice Beatty could have been challenged. But they were not, because that was not the nature of the proceedings. It appears that both sides urged the trial judge to strike any prior guilty pleas and to enter an NCRMD verdict.
[133] It is clear that JG suffers from mental disorders, indeed a host of them. The live question was whether those mental disorders, individually or in concert, incapacitated JG within the meaning of s. 16 of the Criminal Code. Crown counsel recognized a shortcoming in Dr. Meen’s initial report. She wrote him seeking clarification on the incapacity issue. His response, after conducting two further meetings with JG:
[I]t became very clear, in my opinion, that at the time of those events, because of the degree of agitation and anxiety that [JG] was experiencing, that he was “not criminally responsible” on those occasions. It would also appear at this point in time, that the consequences of the prior assaults impacting on his understanding on the later assaults was indeed minimal and in fact [JG] was not able to make the connections.
[134] One might argue that Dr. Meen’s opinion was conclusory and did not reflect specific factual findings that might adequately support it. It must be remembered, however, that Dr. Meen was responding to specific questions posed by Crown counsel. To wit,
Having the alleged facts before you, are you satisfied that for each event [JG] did not appreciate the “physical nature, character and physical consequences of his act?” (That is how the courts have defined the test for this arm of the defence).
[135] Dr. Meen’s response must be read in the context of the questions put to him. Looked at in that context, it is apparent that after meeting with JG on at least three occasions and having the benefit of Dr. Phillips’ and Dr. Holt’s assessment reports, Dr. Meen formed the opinion that JG did not, at the time of each alleged offence, understand the physical nature, character and physical consequences of his acts. He was driven by uncontrollable impulses.
[136] No challenge was made to that opinion because both Crown and defence were in agreement with it. No evidence to the contrary was before the court.
[137] When I say the defence was in agreement with Dr. Meen’s opinion I must be cautious, because JG would have had, given his youth and intellectual disabilities, limited capacity for understanding the issues and instructing counsel. I will come back to this point momentarily.
[138] In the face of what was, in effect, a joint submission, it was, in my view, reasonable for the trial judge to render the NCRMD verdict. It was a verdict reasonably available on the modest evidentiary record provided and in light of the united positions of counsel.
[139] In R. v. Anthony-Cook, 2016 SCC 43, the Supreme Court held that a strict standard must be applied to the consideration of joint submissions. They should only be rejected where they would bring the administration of justice into disrepute or where they would be contrary to the public interest. Said another way,
Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold…(Para. 34).
[140] Imposing an NCRMD verdict, even in circumstances that are the equivalent of a joint submission, requires an evidentiary record capable of making out the essential elements of such a verdict: condition and incapacity.
[141] In this case there was an unchallenged opinion of a consulting psychiatrist, supported by the assessment reports of two consulting psychologists. In my view, the evidentiary record – considered from the perspective of what was, in essence, a joint submission – was capable of making out the necessary elements of an NCRMD verdict.
[142] In the result, I conclude that the verdict was a reasonable one.
[143] I will turn now to the final submissions of the appellant: that the process was so procedurally unfair to JG that new trials are justified.
The Procedural Unfairness Argument
[144] There can be no debate about whether JG was in a vulnerable position. He was a youth, a ward of the CAS, and intellectually disabled. He had no money to retain counsel and apparently did not seek Legal Aid assistance to retain one full-time. Instead, he relied on duty counsel to assist him at each appearance. In hindsight, the result for him has been heart-breaking. He has been institutionalized for fifteen years. I expect no one involved in the process could have anticipated that.
[145] Ms. Dann made a detailed and well-considered argument, as is her custom. She observed in her factum that while everyone involved was likely motivated to do what they perceived as best for JG, the result was nevertheless not legally justifiable.
[146] Ms. Dann’s arguments were very compelling and this has been a very difficult decision. It is easy to say, in hindsight, that JG would never have, and should never have, consented to an NCRMD verdict, given what has transpired since it was made. But such a perspective is not helpful. It says nothing about whether the verdict was justified and the process fair. I have concluded, after anxious consideration, that they were.
[147] JG was vulnerable and without full-time counsel. That much is known. By my count, however, he appeared before the Youth Court 21 times between August 27, 2004 and September 15, 2005. He was represented by the same duty counsel, Mr. Thomson, on twelve of those appearances, including both occasions when assessment reports were ordered and on September 15, 2005 when the NCRMD verdict was entered.
[148] I have no basis to believe that Mr. Thomson was not competent or alive to JG’s vulnerabilities. I have no basis to conclude that he did not have fully informed instructions from JG.
[149] At the same time, JG had the assistance of the CAS at each appearance. He did not attend court alone. They were there to assist him as needed. I have no reason to believe that they were not acting with his best interests in mind.
[150] Justice Beatty presided over many of JG’s court appearances. He made both assessment orders. He was alive to JG’s intellectual and mental health issues from at least early December 2004 when he ordered the first assessment. In other words, September 15, 2005 was far from his first engagement with JG. I have no reason to believe he did not approach the NCRMD issue with care, concern and caution.
[151] I have no basis upon which to conclude that a fitness hearing ought to have been ordered or conducted. No suggestion was made at the appeal that JG was not, in fact, fit.
[152] I further have no basis upon which to find that the NCRMD defence was initiated by the Crown and not JG. There is no basis, therefore, upon which I could find that the Crown circumvented the requirements of s. 672.12(3) of the Criminal Code.
[153] Ms. Dann argued that there is no suggestion that JG understood the profound consequences of an NCRMD verdict or his right to oppose it. At the same time, it must be recognized that there is no suggestion that he did not understand the consequences. There is certainly some evidence that he at least understood that he needed treatment and that he wanted to pursue treatment.
[154] In my view, JG received a fair hearing, before a fair and impartial tribunal. He had the representation of counsel throughout and the support of the CAS. There is no basis to find that he did not understand the case to meet and or that he did not have an opportunity to answer it. He received a decision based on the facts and the law and the consent of the parties.
[155] I return to the Supreme Court’s description of s. 16 of the Criminal Code in R. v. Bouchard-Lebrun, 2011 SCC 58, at para. 52. It gives “effect to society’s interest in ensuring that morally innocent offenders are treated rather than punished, while protecting the public as fully as possible.”
[156] In all the prevailing circumstances in 2004-05, it appears to me that it was not unreasonable to conclude that JG was a morally innocent offender, given his intellectual and mental health difficulties. And it was not unreasonable to conclude that he should be treated, rather than punished.
[157] In my view, the verdict was not unreasonable and not the result of procedural unfairness.
[158] In the result, the appeal is dismissed.
Boswell J.
Released: May 11, 2020
