Court File and Parties

COURT FILE NO.: CR-31/21AP

DATE: 2021-10-18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Shawn Racine

BEFORE: The Honourable Mr. Justice R.D. Gordon

COUNSEL: Mieszko J. Wlodarczyk, Counsel for the Crown (Respondent) Sarah Weinberger, Counsel for the Appellant

HEARD: October 14, 2021

Endorsement

[1] On November 19, 2012 the appellant was charged with assault and breach of probation following an altercation with a security guard at a local soup kitchen. At a court appearance on November 27, 2012 the presiding judge, at the request of the Crown and over the objection of the appellant, ordered an assessment of his mental condition to assist in determining whether he was, at the time of the alleged offences, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) of the Criminal Code. The assessment was completed and in due course the appellant was found to be not criminally responsible (NCR) for his actions.

[2] The appellant appeals the NCR verdict on several different grounds. Foremost among them is that the judge who ordered the NCR assessment did so in the absence of any evidence that would have allowed him to determine the existence of reasonable grounds to doubt that the appellant was criminally responsible for the offences on account of mental disorder as required by s. 672.12(3)(b) of the Criminal Code.

[3] When the assessment was ordered, the court had not heard any facts relating to the offences. Accordingly, it could have had no reasonable basis to believe that the appellant’s mental condition might exempt him from criminal liability. The Crown fairly concedes this to be the case but argues that the appeal should nonetheless be dismissed on application of the curative proviso contained in s. 686(1)(b)(iii) of the Criminal Code: “notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred.”

[4] There are two categories of errors that satisfy the requirements of this section. In the first are errors that are harmless on their face or in their effect. In the second are errors that are not minor and cannot be said to have caused no prejudice to the accused, but the case against the accused is so overwhelming that a reasonable and properly instructed jury would inevitably come to the same conclusion notwithstanding the error. [See R. v. White 2011 SCC 13, [2011] 1 SCR 433].

[5] The assessment ordered by the court was the foundation upon which the court’s eventual NCR ruling was made. Had it not been ordered there would have been no medical opinion upon which to base an NCR determination. Clearly this was not an error that was harmless on its face.

[6] Similarly, absent the medical opinion there was little, let alone overwhelming, evidence that the appellant was incapable of appreciating the nature and quality of his acts or of knowing that what he did was wrong.

[7] Accordingly, the court’s error does not fall into either of the categories of error that would satisfy the curative proviso.

[8] The Crown advances the admittedly novel argument that there is no substantial wrong or miscarriage of justice when the evidence improperly considered by the court (in this case the NCR assessment) could have been properly admitted as a result of a subsequent Crown application.

[9] If I was somehow satisfied that the same NCR report would have inevitably been properly before the court when the NCR issue was being considered, the error initially made in ordering the assessment would be harmless in its effect and fall under the first category of errors.

[10] However, I cannot be satisfied that it would inevitably have been properly before the court without engaging a considerable amount of speculation: Would the Crown have been entitled to make a second request for an NCR assessment? If so, would such a request have to be based on fresh evidence? Did such fresh evidence exist, and would it have met the Palmer criteria? And even if ordered subsequently, would the same assessor have been used? Would the same conclusions have been reached?

[11] I cannot be certain this NCR assessment would have found its way before the trial court. Accordingly, the error in ordering the NCR assessment cannot be saved by the curative proviso. Having regard to this finding, I need not consider the other grounds of appeal advanced.

[12] In the circumstances of this case, it is appropriate to set aside the finding of NCR and enter a conviction for the offences of assault and breach of probation. The appellant has now been detained with respect to these charges for almost nine years. No further incarceration or period of probation can be justified by any applicable sentencing principle. As in R. v. Guidolin 2011 ONCA 264, having regard to the time spent in custody and the nature of the offence, and to ensure compliance with the technical requirements of the Criminal Code I impose a sentence of one day on the charge of assault, and one day concurrent on the charge of breach of probation.

The Honourable Mr. Justice R.D. Gordon

Date: October 18, 2021