WARNING
THIS IS AN APPLICATION UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
(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.
(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.
(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,
(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 NO.: CR-08-272-00AP
DATE: 20201116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
H.M. Applicant
G. Hendry, for the Crown Respondent
C. Martell, for the Applicant
HEARD: November 12, 2020
c. verner j
[1] The Applicant is seeking an extension of time to file a notice of appeal against a NCR verdict that was entered on October 20, 2008.
[2] When the Applicant, who had no criminal record, was 15-years-old he was charged with a total of seven charges, including weapons dangerous, assault, uttering threats (x2), mischief (x2) and escape lawful custody. The Crown proceeded summarily. The Applicant, who had had a very troubled youth, was diagnosed with several mental issues and had “significant intellectual limitations”, such that there was a real concern that he did not even meet the low threshold to be fit to stand trial. In fact, a month before he was charged with these offences, a set of charges was stayed on the basis that he was unfit.
[3] His counsel recommended that he seek a NCR verdict on these seven charges, as he had nowhere to live and needed treatment. With the advice of his lawyer and pressure from his parents he decided to plead guilty to the offences and not challenge the NCR verdict (it is unclear from the record whether the NCR was initiated by the defence or the Crown).
[4] According to his counsel’s submissions on the record, the Applicant would have been sentenced to approximately one month in custody if he accepted a conviction. Instead, he spent five months in custody before getting a bed in a hospital and he continues to be detained in a hospital now, 12 years later, as a result of that NCR verdict.
[5] The Applicant provided an affidavit outlining the reasons for the delay in filing a notice of appeal. He stated that it was not until 2018 that he understood that his NCR verdict was an “indefinite sentence”, such that he “might never be discharged by the Review Board”. It was this information that lead him to pursue an appeal and he has made every effort since then to have this appeal move forward as quickly as possible. I note that his counsel delayed the process somewhat to obtain a current psychiatric report to support the application and the Crown also delayed the process while it was looking for the original Crown brief.
[6] The Applicant submits there were significant flaws in the original plea process, and that the NCR verdict was unreasonable. He will also be seeking to admit fresh evidence on appeal that supports his position that he was not in fact NCR.
[7] For the reasons set out below, I allow the application.
The Factors to consider before Extending the Time to File a Notice of Appeal
[8] It is clear from both s. 815(2) of the Criminal Code and rule 40.03(1) that this court “may” extend the time to file a notice of appeal beyond the 30-day limit. However, neither the Code nor the rules provide any guidance as to how that jurisdiction should be exercised.
[9] The common law has recognized that there are three main factors to consider in assessing whether the interests of justice require that an extension be granted:
(1) Whether the Applicant had a bona fide intention to appeal within the prescribed appeal period (30 days);
(2) The Applicant’s explanation for the delay; and
(3) The merits of the proposed appeal.
(R. v. Mitchell, 2012 ONCA 804 at para. 3; R. v. Trudel, (unreported decision by Roseberg J.A., released October 22, 2013)).
[10] In Mitchell, supra Weiler J.A. noted that in addition to those three central factors, courts often also consider the following:
(4) Whether the consequences of conviction are disproportionate to the penalty imposed;
(5) Prejudice to the Crown;
(6) Whether the applicant has taken the benefit of the judgment;
(7) The position of the defence at trial; and,
(8) Whether the proceedings appeared to be fair and whether they were fair.
(i) The Focus in NCR cases should be on the Merit, rather than on the Delay
[11] In the unreported case of R. v. Trudel, Rosenberg J.A. found that since the case before him involved “an attempt to appeal a NCR verdict where the applicant has been suffering from a severe mental illness”, the applicant’s failure to form an intent to appeal within the time limit and the applicant’s explanation for the delay, are “less important”, whereas the merit of the appeal was the most significant factor.
[12] In Mitchell, which also involved an individual with a mental illness, Weiler J.A. came to a similar conclusion. She said:
That said, mental illness can present a hurdle to initiating legal proceedings that the average person does not have. The applicant's age at the time, 19, and her relative lack of familiarity with the criminal justice system are also factors to consider. Further, unlike the finite sentence that would have been ordered had the applicant been found criminally responsible, the NCRMD disposition does not have a specific time frame. If an error was made in the NCRMD disposition, the applicant continues to live that error by being subject to the ORB's jurisdiction. As a result, lack of an explanation for the delay cannot be determinative.
[13] Although Weiler J.A. ultimately dismissed the application in Mitchell, she clarified that it was not the four-year delay in that case that was determinative, but the lack of merit. Similarly in R. v Sims, 2007 CarswellOnt 5703, the Court of Appeal for Ontario noted that it was the frivolousness of the appeal which was central in dismissing the application to extend time to appeal the NCR verdict, and the seven-year delay played a minimal role in the decision.
[14] It is noteworthy that appellate courts have allowed particularly lengthy extensions of time in NCR cases where there is some merit to the appeal. In Trudel, supra Rosenberg J.A. allowed an extension of four-and-one-half years; in R. v. Williams, 2012 ONCA 695, the Court allowed the appellant to re-open his abandoned appeal six years after the NCR verdict. In R. v. J.G., 2018 ONSC 4366, the Superior Court of Justice allowed an extension of thirteen years and the same court also allowed an extension of four years in R. v. Stephens, 2013 ONSC 4024.
[15] I note that it is not uncommon for NCR appeals to be heard years after the NCR verdict was entered. For example, there was ten years delay in R. v. Capano, 2014 ONCA 599 and nine years in R. v. J.F., 2019 ONCA 432.
[16] Thus, where a youthful Applicant with cognitive limitations and mental health issues conceded a NCR verdict, the length and explanation for the delay, as well as the failure to form an intent to appeal within the time limit, play a relatively small role in determining whether an extension of time should be granted.
(ii) The Merit threshold is a low one.
[17] Although merit plays the central role in deciding whether to allow an application such as the one before me, it does not pose a difficult threshold to meet. The Applicant need not show the court that the appeal will likely succeed. Far from it, the Applicant only needs to show that the appeal may succeed.
[18] Rosenberg J.A. emphasized how low the merit threshold is in R. v. Trudel, supra. After noting that merit played the most significant role in assessing whether an extension of time should be granted in that case, Rosenberg J.A. assessed the merit and found that the applicant would have to overcome “serious hurdles” to be successful on appeal. He was “doubtful” that she would in fact succeed. Yet he allowed the extension of time. Not surprisingly, the Appeal was ultimately dismissed (R. v. Trudel, 2015 ONCA 422).
[19] I note that the appeals in both R. v. J.G., supra, in which the Superior Court of Justice allowed an extension of thirteen years, and Stephens, supra, in which the Superior Court of Justice allowed an extension of four years, were similar to Trudel, in that they too were ultimately dismissed.
Application of the test to the facts in this case
[20] The Respondent highlights the fact that the majority of the factors listed in Mitchell weigh in favour of dismissing this application. (1) The Applicant admittedly did not have a bona fide intention to appeal within 30 days of the NCR finding, in fact he had no such intention for close to a decade. (2) At this point, the Crown is prejudiced to the extent that they would likely not be able to prosecute the Applicant again, since the Crown brief is no longer retrievable. And, (3) the NCR verdict was conceded by the defence.
[21] I agree with the Crown that there are many factors weighing in favour of dismissing the application, but in light of the Applicant’s youth and cognitive limitations at the time of his NCR finding, these factors play a less significant role. The real issue is whether there is sufficient merit to meet the low threshold applied by Rosenberg J.A. in Trudel. I find that the Applicant has met that onus and in fact has shown that this appeal has significant merit.
Merit of the Appeal
[22] The Applicant intends to raise the following grounds of appeal:
(1) The Applicant was not properly arraigned;
(2) The trial judge did not ensure the Applicant understood the consequences of a NCR finding;
(3) The verdict was unreasonable;
(4) The fresh evidence suggests that the Applicant was not NCR; and,
(5) There was ineffective assistance of counsel (I need not consider this issue for the purposes of this application).
(1) The Applicant was not properly arraigned.
[23] There were two Informations before the trial judge with a total of seven charges, relating to two separate incidents. None of the charges were mentioned in court at any point on the date of the plea. There was no waiving of the reading of the charges. There was no plea of guilty or not guilty, or other plea permitted in law (R. v. G.(D.M.), 2011 ONCA 343 at para 39; and Criminal Code, s. 606(1)). There was no evidence mentioned to support any of the charges. And there was no finding of guilt by the trial judge. The plea in its entirety was as follows:
Defence counsel: Mr. [H.M.], to his credit, has been seeking help [and is not contesting the NCR verdict]. To be very blunt, had Mr. [H.M.] pled guilty to these charges, he would have been out two months ago, I’d gain say, and, as it is, he’s setting himself up for not getting out anytime quick. He’s aware that he’s being held in custody and he’s aware that this a lengthy process. I believe, he’s aware, at any rate. He is fit…
The Court: So is there an admission that he committed the act….
Defence counsel: yes, the acts…
The Court: …complained of?
Defence counsel: ….are admitted.
The Court: All right….On the basis of the report, then under section 672.34 there will be a verdict of not criminally responsible.
[24] It is unclear what charges the Applicant was pleading guilty to and whether the accused was aware of the charges. The trial judge did not satisfy herself that the charges were supported by the allegations, nor did she make a finding of guilt. The Respondent conceded that the plea process was flawed.
[25] On the one hand, a failure to arraign is a “procedural irregularity” that can be cured by s.686(1)(b)(iv) of the Criminal Code if the Applicant was not prejudiced (R. v. Mitchell, 1997 CanLII 6321 (ON CA), 1997 CarswellOnt 4973 (Ont.C.A.)) and, despite the Applicant filing an affidavit in support of this application, there is no evidence before me that he is contesting his guilt with respect to the offences. Indeed, the alternate remedy requested on the notice of appeal is that convictions be entered with respect to the counts he was found guilty of. He may not have been prejudiced by the flaws and therefore the flaws might not be fatal to the verdict.
[26] On the other hand, there is an argument that the flaws in the process are sufficient in themselves, or at least together with other grounds of appeal, to quash the verdict. As Rosenberg J.A. noted 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” (R. v. Szostak, 2012 ONCA 503. Also see: R. v. D.M.G., 2011 ONCA 343).
(2) The trial judge did not ensure the Applicant understood the consequences of an NCR finding.
[27] There was no plea inquiry whatsoever, and thus, significantly, there was no inquiry into whether the 15-year-old with cognitive deficits understood that he could be detained indefinitely as a result of being found NCR. This omission in itself could be considered a serious error in any case (R. v. Williams, 2012 ONCA 695 at paras. 31-33; R. v. P.(A.), 2011 ONCA 673 at para. 8; R. v. Theodoropoulos, 2015 ONSC 5034 at para. 2).
[28] The Applicant submits that in this case in particular there was a strong need for such an inquiry, in light of a comment made by the Applicant’s lawyer on the record. Specifically, the Applicant’s lawyer said during the plea process (as is quoted above):
[The Applicant is] aware that he’s being held in custody and he’s aware that this is a lengthy process. I believe, he’s aware, at any rate. [Emphasis added.]
[29] I agree that the trial judge’s failure to ensure the Applicant appreciated the indefinite nature of the NCR verdict was potentially a serious error.
(3) The verdict was unreasonable.
[30] The Applicant submits that the psychiatric report that was filed in support of the NCR verdict, which was prepared by Dr. Wood Hill, did not in fact support such a finding. The Applicant relies on R. v. Guidolin, 2011 ONCA 264, in which Doherty J.A. quashed an NCR verdict that was made at the initiative of the Defence, on the basis it was unreasonable. In so doing, he said:
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.
[31] For the purposes of this application, I find that it is arguable that the three-page report was insufficient to support a NCR finding.
(4) The fresh evidence undermines the NCR finding.
[32] The Applicant furthermore intends to bring an application to admit a report from psychiatrist Dr. Mark Pearce, as fresh evidence. In his report, Dr. Pearce concludes that the Applicant “should be held criminally responsible for the offences”. Dr. Pearce’s expertise and opinion stood unchallenged before me. Considering that his report is in many ways consistent with that of Dr. Wood Hill, it is quite possible that this Court would find that it is in the interests of justice to admit it on appeal and conclude that Dr. Pearce’s opinion is compelling.
CONCLUSION
[33] The Applicant is being detained indefinitely as a result of a decision he made when he was a cognitively disadvantaged 15-year-old youth and there is at least a possibility that the NCR verdict was unfounded. There is no question that the threshold applied by Rosenberg J.A. in Trudel has been met. In these circumstances, the interests of justice require that the Applicant be permitted to have the court assess on a full appellate record whether the NCR was properly entered. I allow the application.
[34] In light of the potential for fresh evidence to be filed on this appeal, there is a need for it to be case managed. I have informed the trial coordinator of this need.
Justice C. Verner