Court File and Parties
COURT FILE NO.: CR-21-00000009-00AP DATE: 2021-12-20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – JASON MICHAEL GREEN
Counsel: Aaron Del Rizzo, for the Crown, Appellant Jeff Marshman, for Mr. Green
HEARD: November 19 and December 12, 2021
Reasons for Judgment
R.F. GOLDSTEIN J.
[1] Mr. Green is a troubled man. He has significant mental health issues. Like many unfortunate people in his situation, his illness has landed him in and out of the criminal justice system. In early 2021 he was tried in the Ontario Court of Justice on various charges after an altercation with a taxi driver and a homeless couple. The trial judge, Justice Hogan, found that the facts supported a conviction on a charge of possession of a weapon dangerous to the public peace (commonly referred to as “weapons dangerous”) relating to the taxi driver. The other counts related to the homeless couple. She dismissed counts alleging assaults on the homeless couple. The Crown then applied for an order that Mr. Green be assessed for a potential finding of Not Criminally Responsible (“NCR”). The trial dismissed the application. After the application was dismissed Mr. Green pleaded guilty to further counts of weapons dangerous and failing to comply with a recognizance. The trial judge sentenced Mr. Green to 67 days imprisonment, with credit for 64 days of pre-sentence custody.
[2] The Crown appeals. The Crown argues that Justice Hogan erred in failing to order the assessment, and in attributing time from another set of charges to his sentence.
[3] For the reasons that follow, the Crown’s appeal is dismissed.
BACKGROUND:
[4] On July 24, 2019 Mr. Green was in the area of John Street and Richmond Street in downtown Toronto. Khawaja Qasin was driving a taxi on John Street. Mr. Qasin was stopped at a traffic light. Mr. Green yelled at Mr. Qasin “who are you looking at?” and “why are you looking at me?” and then hit the taxi with a knife. He also became involved in an altercation with a married couple, Mr. Woodcox and Ms. Mitchell. He was arrested and charged with three counts of assault with a weapon, two counts of uttering threats, one count of failing to apply with probation, and one count of possession of a weapon for a purpose dangerous to the public peace.
[5] On September 10, 2019, Mr. Green pleaded guilty to two counts before Justice Mocha. Justice Mocha ordered an assessment. Mr. Green saw Dr. Percy Wright, a psychologist, and Dr. Kiran Patel, a psychiatrist. Both produced reports. Dr. Patel opined that a defence of Not Criminally Responsible was available to Mr. Green for the index offences.
[6] On March 13, 2020 the facts were read in on the plea. Mr. Green refused to acknowledge them. Justice Mocha then struck his plea. That meant that Mr. Green would be going to trial.
[7] In January 2021, Justice Hogan tried Mr. Green on all counts over four days. On January 19, 2021 Justice Hogan convicted Mr. Green of weapons dangerous. Her Honour stated:
I find that the defendant’s actions with this knife, both the brandishing of it in a public area and the jabbing of the taxi cab both in a dangerous manner constitute a purpose dangerous to the public peace.
[8] Justice Hogan was not satisfied beyond a reasonable doubt that Mr. Green was guilty of the other counts. She had video of the alleged assaults. She found that Mr. Green had engaged in consensual fights with the other defendants.
[9] It is important to note that the Crown has not appealed the not guilty verdicts or taken issue with the trial judge’s findings of fact.
[10] The Crown then applied for the assessment. Justice Hogan dismissed the application. She then sentenced Mr. Green. The Crown appeals on the basis that she erred in dismissing the application for an assessment.
ISSUES AND ANALYSIS:
[11] The Crown raises two issues: first, that the trial judge erred in refusing to order an assessment; and second, that the trial judge erred in improperly apportioning pre-trial custody on sentencing.
(a) Did the trial judge err in dismissing the Crown’s application for an assessment?
[12] Mr. Del Rizzo, for the Crown, argues that there was a proper evidentiary basis for the trial judge to order the assessment. The threshold for ordering an assessment is low. There need only be reasonable grounds to doubt that the accused person is criminally responsible on account of mental disorder. In this case, Dr. Patel’s report makes it clear that Mr. Green was suffering from a major mental illness at the time of the index offence. Dr. Patel found that he was suffering from acute psychotic symptoms, and “laboring under a psychotic mental state comprised of paranoid delusions, perceptual abnormalities, thought disorganization, and disorganized behaviour… in summary, we believe there is ample evidence to indicate that Mr. Green’s symptom burden was severe at the material time.” Given the low threshold needed for an assessment, the Crown argues that the trial judge erred by refusing to order one.
[13] With respect, I disagree. While I might not have come to the same conclusion as the trial judge, in the absence of an error of law or a palpable and overriding error of fact, the trial judge’s decision is entitled to deference. The Crown has not identified a palpable and overriding error or an error of law.
[14] The Criminal Code sets out a detailed process for finding a person NCR. Every person is presumed responsible: Criminal Code, s. 16(2). Under s. 16(3) of the Criminal Code an accused person is not responsible for a crime where, by reason of suffering from a mental disorder:
- They are not capable of appreciating the nature and quality of the act or omission; or,
- They did not know that it was wrong.
[15] The party that raises the issue of NCR bears the burden of proof: Criminal Code, s. 16(3). In this case, the Crown raised the issue and bore the burden.
[16] Under s. 672.11(b) of the Criminal Code a court may order an assessment to determine criminal responsibility. The Court may do so at any stage of its own motion or on application by the accused. The Crown may also apply for an assessment. Where the Crown does so the court may only order an assessment if the Crown satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible: Criminal Code, s. 672.12(3)(b). The court’s decision is discretionary. The Ontario Court of Appeal has interpreted the provision to mean that an order for an assessment under s. 672.11(b) “does not require that there be reasonable grounds to believe that the accused is actually exempt from criminal liability - only that there be reasonable grounds to believe that further evidence of the accused’s mental condition is necessary to determine whether the accused is exempt from criminal liability”: R. v. Caponata, 2014 ONCA 599 at para. 34.
[17] As Trotter J. (as he then was) observed in R. v. John Doe, 2011 ONSC 92 at para. 34, “Parliament has made it more difficult for the Crown to obtain an assessment order when the accused person does not place his/her mental condition in issue.” This is generally in keeping with the intention that the assessment provisions must be “approached with great care, especially when the Crown seeks to invoke them.” See: John Doe at para. 35. That is because an NCR finding is a very significant disposition. It could lead to a lifetime in the jurisdiction of the Ontario Review Board, even for a relatively minor offence.
[18] Multiple physicians have diagnosed Mr. Green with schizophrenia. Some of his symptoms include paranoia, grandiose delusions, and most troublingly, disorganized behaviour including aggression and violence. Dr. Patel noted, however, that he is responsive to treatment and his condition had improved during the time prior to the assessment.
[19] Dr. Patel reviewed a great deal of documentation, including Mr. Green’s criminal record and the synopsis of allegations. He opined that with respect to the two counts of assault with a weapon, Mr. Green’s ability to understand the moral wrongfulness of his actions was compromised due to his acutely psychotic state. Thus, a defence of NCR was available to him.
[20] The Crown argues that given Dr. Patel’s findings, and the evidence at trial, there were clearly reasonable grounds to doubt that Mr. Green was criminally responsible for his actions and the trial judge should have ordered an assessment.
[21] The trial judge specifically found that Ms. Mitchell had confronted Mr. Green. Part of the confrontation was captured on video surveillance. Based on her review of the video as well as the other evidence the trial judge was satisfied that the confrontation was a consensual fight. The trial judge also found that the fight – part of which was captured on video – between Mr. Green and Mr. Woodcox was also consensual. She therefore dismissed those charges. She also had a reasonable doubt that Mr. Green had uttered a threat to Mr. Woodcox. The trial judge did make a finding of guilt on the weapons dangerous charge.
[22] The Crown then applied for the assessment. The trial judge dismissed the application. She reviewed Mr. Green’s behaviour during the incident. She stated during submissions that she had read the material, including the report of Dr. Patel. She noted that it was not unusual for a homeless person to carry a knife. In reviewing the whole incident – much of which was on video – she stated:
… and what I saw was not a man who was acting as if he was in psychotic state or anything like that. As I say, he seemed to be engaging in a consensual fight with two other individuals ultimately and he tried to disengage on a number of occasions…
[23] The trial judge went on to say:
So, given all of that, the incident itself and what I found and the fact that I was able to see a large part of the aftermath of the act that actually I found him having committed, and thereby got a sense of what was going on generally just immediately following that I can’t say that I saw anything that would make me believe that his major mental illness, which I’m not denying he has, it’s all agreed he has, but that that was impacting him at that particular time. So, there’s nothing from the actual incident that would lead me to believe that there would be reason to doubt that he is criminally responsible for the offence.
[24] As Schneider J. pointed out in R. v. Isaac, 2009 ONCJ 662 at para. 3 in the context of assessments for fitness to stand trial, the Criminal Code is silent as to what “might to take the court to the point of ‘reasonable grounds to believe’” but it is clear that no particular evidence is necessary. The only requirement is that the record of the proceedings must clearly and plainly appear on the record of the proceedings.
[25] With respect, I do not see an error by the trial judge. The report by Dr. Patel did not apply to the offence of weapons dangerous that Mr. Green was ultimately convicted of. As well, the trial judge had the benefit of seeing video that captured much of the altercation involving Mr. Green – Dr. Patel did not.
[26] At the end of the day, there was a basis upon which the trial judge could reject the Crown’s application. In the absence of an error of law – which is not being alleged – or a material misapprehension of the evidence – again, which is not being alleged – I cannot interfere.
(b) Did the trial judge err in calculating credit for Mr. Green’s pre-sentence custody?
[27] After conviction on the weapons dangerous offence (the “first weapons dangerous”) but prior to sentencing, the Crown applied for the assessment. As noted, the trial judge dismissed the application. Mr. Green then pleaded guilty to one other count of weapons dangerous (the “second weapons dangerous”) and one count of failure to comply with a recognizance. The Crown’s submission was that he should serve a global sentence of 180 days imprisonment; the defence submission was 90 days.
[28] Mr. Green had spent 220 days in custody. The first 203 days were solely in respect of the first weapons dangerous and the counts upon which Mr. Green was acquitted. The Crown position was that the 203 days could be applied only to the first weapons dangerous count and not to the second weapons dangerous count and the breach count. The trial judge imposed a global sentence of 67 days. She imposed a 30-day sentence on the first weapons dangerous, for which she credited him a full 30 days in custody – meaning he was in a time served position. The trial judge imposed a sentence of 37 days, with 34 days credit for pre-sentence custody.
[29] Mr. Del Rizzo argues that the trial judge erred in law by applying pre-sentence custody to the second weapons dangerous offence and the breach offence when he was not technically detained on those charges. Very sensibly and humanely, however, Mr. Del Rizzo does not seek reincarceration.
[30] With respect, I cannot agree with the Crown. The Ontario Court of Appeal considered this issue in R. v. Barnett, 2017 ONCA 897. The key issue in that case was whether credit for pre-sentence custody was “a result of” the offence: Criminal Code s. 719(3). That section reads:
719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
[31] Section 719(3.1) permits a court to credit a maximum of 1.5 days if circumstances justify it.
[32] In Barnett the Crown argued that the “as a result of” clause limited a sentencing court to pre-sentence custody for which the offender did not have bail. The Court of Appeal did not agree with this strict construction. The Court noted that the interplay between different sets of offences for which a person may be sentenced is often complicated and nuanced. A person may, for example, have bail on a first set of charges, then be arrested on a second set, and never have a bail hearing in order to trigger cancellation under s. 524 of the Code. Does that mean that if the person pleads guilty to some or all of the two sets of offences they cannot receive credit for the first set? The Court of Appeal thought that a hard and fast rule was not appropriate. I excerpt paras. 28 and 30:
It would be artificial to restrict a sentencing judge’s ability to apply pre-sentence custody to only those charges that are the immediate trigger of the detention. Judges are regularly called upon to sentence offenders who are facing different sets of charges and who obtained bail on the initial set of charges but were remanded in custody on the later charges. In such cases, legitimate questions will arise as to whether the pre-sentence custody can be said to be “as a result of” each of the various charges the offender is facing. In many cases, common sense will dictate that the offender did not apply for, or was denied, bail on the second set of charges at least in part because of the totality of the charges outstanding, or because he had been on bail on the prior charges. In those circumstances, it does not stretch the language of s. 719(3) to describe the pre-sentence custody as being “a result of” both sets of charges.
What we draw from the case law is that ss. 719(3) and (3.1) require that there be some causal connection, a sufficient link or relation between the offence for which the offender is being sentenced and the pre-sentence custody. That relation or link can exist with more than one offence. It is not limited to the offence that directly triggered the detention, but will include offences that contributed to the denial of bail or, in the trial judge's assessment, factored into the offender's decision to not seek bail on the charges that triggered the detention order.
[33] The real question is whether the sentence is demonstrably unfit: R. v. Lacasse, 2015 SCC 64. While the sentence imposed was on the light side, the trial judge was entitled to take into account the fact that Mr. Green is a homeless Black man with serious mental health difficulties. She had concerns about using the criminal justice system to “warehouse him”. Those were all very valid concerns. The sentence is entitled to deference.
DISPOSITION:
[34] The appeal is dismissed.
R.F. GOLDSTEIN J.
Released: December 20, 2021
COURT FILE NO.: CR-21-00000009-00AP DATE: 2021-12-20
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – JASON MICHAEL GREEN
REASONS FOR JUDGMENT R.F. GOLDSTEIN J.
Released: December 20, 2021