COURT FILE NO.: CR-21-00000126-00MO

DATE: 20220516

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALDORIE LEBLANC

Michael Feindel, for the Crown

Vivian Ropchan, for Mr. LeBlanc

HEARD: April 19, 2022

R.F. GOLDSTEIN J.

[1] In October 2008 Aldorie LeBlanc was convicted of sexual assault and sexual interference in this court. He was due to be sentenced in July 2009. The Crown brought an application to declare him a dangerous offender. Prior to sentencing, however, he was found unfit to stand trial. He has remained unfit since that time. As a person who is unfit to stand trial, he is currently under the jurisdiction of the Ontario Review Board (“ORB”).

[2] In March 2021, the ORB found that Mr. LeBlanc was permanently unfit, but did not pose a significant threat to public safety. Accordingly, the ORB recommended that this court stay the criminal proceedings.

[3] Mr. LeBlanc is a very troubled man of 76 years. He has been diagnosed with alcohol induced major neurocognitive disorder, alcohol use disorder, and probable pedophilic disorder. His criminal record includes multiple driving convictions involving alcohol. It also includes a previous conviction for sexual assault as well as the index offence.

[4] The sole issue in this hearing is whether Mr. LeBlanc poses a significant threat to public safety. If he does, then the charges will not be stayed, and he will remain under the jurisdiction of the ORB. If he does not, the charges will be stayed.

[5] On May 10, 2022 I found that the charges should not be stayed. Even as a 76 year-old man, Mr. LeBlanc still poses a significant threat to public safety; and a stay would not be in the interests of the proper administration of justice. Mr. LeBlanc will remain under the jurisdiction of the ORB. What follows are my reasons.

BACKGROUND AND CRIMINAL HISTORY

[6] Alcohol abuse has been a consistent and unfortunate theme in Mr. LeBlanc’s later life. Involvement with the criminal justice system became a consistent and unfortunate theme around the same time.

[7] Mr. LeBlanc grew up in Ontario. He reported during one of his hospital admission that he joined the army at age 18, and served for five years. He then worked for 30 years for Canada Post as a mechanic. He retired from Canada Post at age 55. Mr. LeBlanc drank on the job, leading to loss of pay for absenteeism, and an early retirement. According to Mr. LeBlanc’s brother, Roy, he also lost his house and his family due to heavy drinking. He has two daughters. He has virtually no contact with them. Mr. LeBlanc’s only family connection is with Roy.

CRIMINAL HISTORY

[8] Mr. LeBlanc’s criminal convictions began in 1997, when Mr. LeBlanc was around 51 years old. That coincides with reports that Mr. LeBlanc began to drink heavily at work. It was relatively close in time to Mr. LeBlanc’s brother’s report of when his most serious drinking began. In 1997 he was convicted of impaired driving, for which he received a $1000 fine. His subsequent convictions began to result in jail time. In July 1998 he was convicted twice of impaired driving. He was also convicted twice of failing or refusing to provide a breath sample. In 1999 he was convicted of driving while “over 80”.

[9] In 2005 Mr. LeBlanc was convicted of sexual assault, disobeying a court order, and two counts of fail to appear. He received a suspended sentence and two years of probation in light of 255 days of pre-sentence custody. The victim was 12 years old at the time of the offences, in 1985. Essentially Mr. LeBlanc had the victim masturbate him; he also fondled her.

[10] In 2007 Mr. LeBlanc was charged with the index offences here: sexual assault and sexual interference. In October 2008 he was found guilty of sexually assaulting a 6 year old girl. He touched her vagina and digitally penetrated her. He was arrested at the scene when bystanders called 911. He had allegedly been drinking but was not drunk. The victim’s DNA was located on Mr. LeBlanc’s finger. In October 2008 he was found guilty in this Court. The Crown then brought a dangerous offender application. Before that application could be adjudicated, however, Mr. LeBlanc was found unfit to stand trial in July 2009. In September 2009 the ORB held a hearing to determine fitness and make a disposition, if necessary. The ORB found that he remained unfit to stand trial and posed a significant risk to the safety of the public. The ORB ordered that he be detained in a secure forensic unit. The Public Guardian and Trustee took over the management of his financial affairs in 2009.

[11] In 1994 Mr. LeBlanc was charged with sexual offences in relation to a step-daughter and a grand-step-daughter. The alleged victims were the daughter and grand-daughter of his common law spouse at the time. The allegations involved digital penetration and attempted intercourse; masturbating in front of one of the victims; and having one of the victims masturbate him. The charges were ultimately withdrawn.

PSYCHIATRIC HISTORY

[12] In 2004 Mr. LeBlanc’s fitness to stand trial was assessed at the Whitby Medical Centre. He took psychological tests but refused phallometric testing. He was diagnosed with alcohol abuse syndrome.

[13] In 2009 Mr. LeBlanc was again assessed. During the September, 2009 ORB hearing Dr. Woodside testified that his working diagnosis was alcohol-induced dementia with a significant history of alcohol dependence. He remained unfit. He was, as I have mentioned, remanded to the secure forensic unit at the Centre for Addiction and Mental Health (“CAMH”). He remained there, subject to periodic testing and assessment, until 2011. His memory continued to be impaired. He had incidents with other patients, including accusations that they stole his clothing or were working to undermine him. He remained unfit to stand trial.

[14] In 2010 the CAMH memory clinic assessed Mr. LeBlanc. He was deemed to have dementia related to alcohol, Alzheimer’s or both. He was declared incapable of consenting to treatment of his dementia on August 19, 2010. Mr. LeBlanc continued to display memory and cognitive difficulties, and difficulties with fellow patients. He challenged the finding of incapacity. The Consent and Capacity Board upheld the finding. His brother Roy is his substitute decision-maker.

[15] Although there has been some improvement in Mr. LeBlanc’s mental state from time to time, he has continued to remain unfit to stand trial. At his 2011 ORB annual hearing, he was found to be unfit and he continued to be detained. He was transferred from the secure forensic unit to the general forensic unit at CAMH. His diagnosis and presentation of symptoms did not change. He consistently declined a sexological assessment. Thereafter his annual ORB hearings remained more or less consistent. He continued to be found unfit to stand trial. He continued to reside in the general forensic unit. He continued to deny phallometric or sexological assessment. He continued to request alcohol, and sometimes made inappropriate comments to female patients or social workers.

[16] In January 2018 Mr. LeBlanc was moved out of the General Forensic Unit and moved to LOFT Community Housing (LOFT is an acronym for Leap Of Faith Together). LOFT provides secure housing on the CAMH Campus. Mr. LeBlanc remained unable to properly care for himself. He continued to require assistance with bathing and laundry. He did not develop insight into his offence history, his recidivism risk, or the risks from alcohol. He continued to want to drink alcohol, although he did not have access to it.

THE STAY RECOMMENDATION

[17] The CAMH assessment team, led by Dr. Choptiany and Dr. Wright, submitted a report to the ORB dated February 25, 2021. The report assessed Mr. Leblanc’s risk of recidivism. The report noted his psychiatric problems, including a major mental illness (dementia), alcohol abuse, and a history of sexual offences. He underwent several tests and assessments. He has poor insight into his offending. The report found that absent supervision he is at a moderate risk of violent/sexual recidivism, based on static and dynamic risk factors. In an unsupervised setting he is likely to access alcohol, which would increase the risk. As well, it appears that Mr. Leblanc has an undiagnosed sexual disorder, pedophilia. He presented with “significant and salient criminogenic risk factors.” The assessment team found that he continued to represent a significant threat to public safety.

[18] The team also found that he remained unfit to stand trial; incapable of consenting to treatment; and incapable of managing his financial affairs. He remained diagnosed with dementia and significant cognitive impairment and memory loss.

[19] On March 9, 2021 the ORB held its annual hearing in relation to Mr. LeBlanc. The report of February 25, 2021 was submitted into evidence. The ORB determined on March 25, 2021 that:

• Mr. LeBlanc remained unfit to stand trial;

• Mr. LeBlanc was unlikely to ever be fit to stand trial;

• Mr. LeBlanc does not pose a significant risk to the safety of the public; and,

• That the court should hold an inquiry to determine whether the charges should be stayed.

[20] Dr. Choptiany testified at the ORB hearing. Dr. Choptiany was Mr. LeBlanc’s attending psychiatrist. Dr. Choptiany opined that Mr. LeBlanc remained unfit and was unlikely to ever be fit to stand trial. Dr. Choptiany also opined that Mr. LeBlanc remained a significant threat to public safety. According to the ORB:

In the doctor’s opinion Mr. LeBlanc remains a significant threat to the safety of the public. If Mr. LeBlanc were to receive an absolute discharge he would not be supervised, he would likely use alcohol, and there would be no restriction to access his victims. In the doctor’s opinion, Mr. LeBlanc would likely act out and use alcohol, notwithstanding that his sex drive was reduced.

[21] The ORB delivered reasons on April 12, 2021. The ORB noted that there is a suspected diagnosis of pedophilia. The diagnosis cannot be confirmed because Mr. LeBlanc has refused phallometric testing. The ORB noted that notwithstanding this diagnosis, “Mr. LeBlanc has not engaged in sexually inappropriate behaviour over the past year, nor indeed for the entire time that he has been in hospital.” The ORB also stated:

He does not exhibit sexually inappropriate nor disinhibited behaviour. Nonetheless, he has not developed any insight into his offence history, his risk for reoffence, nor the impact that the use of alcohol has on his mental status and risk to reoffend.

[22] The ORB determined that Mr. LeBlanc did not pose a foreseeable and substantial risk of significant physical, or psychological harm: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625. The ORB noted that since 2007, when he committed the index offences, he had not behaved criminally. He had not shown that he was inclined to sexually re-offend. He had not been violent since the index offences and had not drunk alcohol, notwithstanding a desire to drink. He had been compliant with medication. He has also been on supervised field trips to such places as a baseball game, the zoo, and the neighbourhood to buy coffee. There have been no incidents while he was on supervised outings. The ORB did agree that Mr. LeBlanc’s desire to live on his own was unrealistic, but found that it was unlikely he could do so since the PGT controlled his finances. The ORB also stated:

We take into consideration other factors which reduce Mr. LeBlanc’s risk, for instance that dated nature of the index offences, the many years of absence of aggressive conduct and his long history of medication compliance. Mr. LeBlanc always takes his medication when it is brought to him. We are unable to find that he is likely to discontinue his medication, since there is little, or no evidence that he has done so in the past…. The evidence does not convince us that he likely will return to use of alcohol.

THE MOVE TO CHARTWELL AND BACK TO CAMH

[23] In June 2021 Mr. LeBlanc was accepted to a Chartwell long-term care facility in Aurora. He didn’t stay there long. In August 2021 he was found with a female resident. He was attempting to kiss her and had his hand on her groin. He was transferred back to CAMH due to that incident as well as “emergent sexually inappropriate behaviour and increased sexual preoccupation.” Chartwell indicated that it would not accept Mr. LeBlanc back. While back at CAMH, Mr. LeBlanc exhibited more sexually inappropriate behaviour, primarily in the form of comments. The treatment team was surprised at Mr. LeBlanc’s rapid return to sexualized behaviour.

[24] In August 2021, CAMH significantly restricted Mr. LeBlanc’s liberties due to the incident. The ORB confirmed the restriction of liberty. The ORB’s decision and recommendation for a stay was rendered prior to the incident at Chartwell. Mr. LeBlanc is currently detained in the general forensic unit at CAMH. He is currently taking anti-depressant and anti-psychotic medication. He has been taking these medications for many years, at different dosages. His current dosage is relatively low, due to his age.

EVIDENCE OF DR. RAMSHAW

[25] In her testimony, Dr. Ramshaw acknowledged in cross-examination that the incident at Chartwell with the female resident may not have been one-way. She testified, however, that Mr. LeBlanc often makes inappropriate comments to female staff in the general forensic unit. He has never, however, carried through on those comments. Dr. Ramshaw testified that Mr. LeBlanc had not used alcohol, but she was certain that if he were on his own and had money he would be at a very high risk of purchasing and drinking alcohol – which, of course, raises the risk for sexually criminal behaviour. He is not able to look after himself in terms of food, support, and basic needs. He would continue to require long term care. He would decompensate significantly. Dr. Ramshaw testified that if the charge were stayed and Mr. LeBlanc was no longer under the jurisdiction of the ORB, she would immediately form him under the Mental Health Act as a danger to others.

[26] Dr. Ramshaw also testified that at Chartwell Mr. LeBlanc was not receiving risperidone. He had been receiving risperidone at CAMH, both before and after his stay at Chartwell. Risperidone is used to treat disinhibition and behaviour control. Dr. Ramshaw opined that Mr. LeBlanc would not likely take risperidone if he were out of custody. That, plus access to alcohol, would increase his risk of re-offending substantially. She also rejected the notion that because he was 76 his sex drive had diminished. Dr. Ramshaw opined that Mr. LeBlanc still appeared to have a healthy sex drive. She also opined that he likely had a pedophilic disorder.

ANALYSIS

[27] Mr. LeBlanc has been found unfit to stand trial. That means that his charges remain outstanding but are suspended until he becomes fit. That generally means that he remains under the jurisdiction of the ORB. The ORB is required to hold an annual hearing to review a disposition, and may hold a hearing to review a disposition at any time of its own motion or at the request of a party: Criminal Code, s. 672.81, s. 672.82.

[28] Prior to the Supreme Court of Canada’s decision in R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, a permanently unfit accused who was no longer a threat would, essentially, have been in limbo. The ORB had permanent jurisdiction over an unfit accused. This was unlike an accused person found to be not criminally responsible (“NCR”). A person found to be NCR could be discharged absolutely, discharged with conditions, or ordered held in a forensic unit. In Demers, the Supreme Court of Canada found that the contrasting scheme for unfit accused was unconstitutional. Parliament amended the legislation to give unfit accused persons a way out of this limbo. A new scheme was introduced to deal with people in Mr. LeBlanc’s situation:

• The ORB holds a hearing pursuant to s. 672.81(1) or 672.82(1) of the Criminal Code;

• The ORB determines pursuant to s. 672.851(1) that:

• the accused remains unfit to stand trial and is not likely to ever become fit to stand trial, and

• the accused does not pose a significant threat to the safety of the public;

• The ORB refers the matter to the court with jurisdiction over the offence to determine whether a stay of proceedings should be ordered;

• The court may order an assessment pursuant to 672.11(e) of the Criminal Code (I made such an order in this case).

[29] The court may decide to hold a hearing. It is unclear why a court would decline to hold a hearing, but the discretion remains. In this case, I determined that a hearing should be held.

[30] I agree that a permanently unfit accused who no longer poses a threat to the safety of the public should be treated the same as a person found not criminally responsible who also does not pose a threat to the safety of the public: R. v. Kearly, [2005] O.J. No. 5394 (O.C.J.). In that case, Justice Schneider of the Ontario Court of Justice, who is one of the leading authorities in this country in the area of criminal law and mental health, found that the guidelines set out in Winko at para. 62, which dealt with an NCR accused, should also apply to a stay proceeding involving an unfit accused. The following is Justice Schneider’s summary, set out at para. 13:

• there is to be no presumption that the mentally disordered accused poses a significant threat to the safety of the public,

• the accused is never in a position of having to disprove dangerousness - the accused is therefore relieved of any legal or evidentiary burden - the accused need do nothing (unless, of course, dangerousness is otherwise established),

• this tactical incentive to adduce evidence is not properly described as a shifting of the legal or evidentiary burden to the accused,

• if the court or Review Board is unable to conclude that the accused constitutes a significant threat to the safety of the public, he or she must be absolutely discharged,

• jurisdiction over the accused cannot be maintained where there is doubt regarding dangerousness, continued jurisdiction requires an affirmative finding of significant threat,

• the threat posed must be more than speculative in nature; it must be supported by the evidence,

• the threat must also be "significant", both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm be serious. A miniscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold,

• the conduct or activity creating the harm must be criminal in nature,

• finally, it is up to the court or Review Board to ensure that it has sufficient information in order to make the determination.

[31] I agree with Justice Schneider.

[32] Pursuant to s. 672.851(7) the court may order a stay of proceedings if it is satisfied that:

(a) on the basis of clear information, that the accused remains unfit to stand trial and is not likely to ever become fit to stand trial;

(b) that the accused does not pose a significant threat to the safety of the public; and

(c) that a stay is in the interests of the proper administration of justice.

[33] In my view, therefore, there are three issues to be determined:

First, is Mr. LeBlanc permanently unfit to stand trial?

Second, Does Mr. LeBlanc pose a significant threat to the safety of the public?

Is a stay in the interests of the proper administration of justice?

[34] I also point out that this proceeding is not an appeal of the ORB recommendation. It is not my job to analyze the ORB’s reasons for decision and determined if there was an error of law, an error of fact, or an error of mixed law and fact. The ORB, as a specialized panel with expertise in the field, is owed consideration but is not owed deference in these circumstances. I can take the ORB’s reasons for decision into account, but I must make my own decision based on the evidence before me.

Is Mr. LeBlanc Permanently Unfit?

[35] There seems to be no dispute that Mr. LeBlanc is permanently unfit. Dr. Ramshaw assumed the care of Mr. LeBlanc when he was transferred back to CAMH. Dr. Ramshaw opined that Mr. LeBlanc remained unfit and was unlikely to ever become fit. He will never be tried on the outstanding charges. Dr. Choptiany testified before the ORB that Mr. LeBlanc is unlikely ever to become fit. Ms. Ropchan, his counsel, did not dispute that he will ever be fit.

Does Mr. LeBlanc Pose A Significant Risk To The Safety Of The Public?

[36] Ms. Ropchan argues that Mr. LeBlanc does not pose a significant risk to the safety of the public. Mr. LeBlanc is certainly a difficult man and challenging to manage. The incident that brought him back to CAMH from Chartwell is not, she argues, an indication of dangerousness. It is an indication that he broke the rules, likely with a willing participant – which the Crown concedes may be the case. Moreover, his comments to female staff, while unpleasant and unacceptable, do not rise to the level of criminal conduct. Mr. LeBlanc does have the resources to be looked after in the community – he has a private pension and other money that is managed by the Public Guardian and Trustee, as well as a brother who is his substitute decision maker. The danger posed by Mr. LeBlanc simply does not meet the test of “a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious”: Winko, at para. 57.

[37] With respect, I must disagree. In my view Mr. LeBlanc remains a serious threat to the safety of the public.

[38] Part XX.1 of the Criminal Code deals with mentally disordered accused persons who commit (or allegedly commit) crimes. Part XX.1 deals with two kinds of accused persons: those who are not criminally responsible for their actions on account of 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 (Criminal Code, s. 16); and those who are unfit to stand trial.

[39] Where an accused is found unfit to stand trial, a judge may stay the charge or may order the detention of the accused: Criminal Code, s. 672.45(1) and s. 672.54. In this case, no disposition was made by the court. Instead, as typically happens, ORB held a disposition hearing and ordered Mr. LeBlanc detained: Criminal Code, s. 672.47(1). The ORB may then either absolutely discharge the accused, conditionally discharge the accused, or order the detention of the accused in a hospital: Criminal Code, s. 672.54. See also: R. v. Lynn, 2020 ONSC 4581. The ORB may then recommend a stay of proceedings where the accused person is permanently unfit and is no longer a significant threat to the safety of the public.

[40] In Winko at para. 62, the Supreme Court explored what is meant by a significant threat to the safety of the public:

A "significant threat to the safety of the public" means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature.

[41] The significant threat standard is onerous. Detention must not be based on mere speculation. There must be a grave risk of physical or psychological harm. That harm must be foreseeable. The conduct that would give rise to a significant threat must be criminal in nature. A small risk of great harm is not enough; neither is a great risk of trivial harm: Re Carrick, 2015 ONCA 866 at para. 17; Re Marmalejo, 2021 ONCA 130 at para. 37.

[42] I turn to an analysis of the evidence by asking a series of questions and setting out the answers based on the evidence before the court:

[43] Is there a risk of physical or psychological harm? Mr. LeBlanc has a history of committing crimes of sexualized violence against children. His 2005 sexual assault conviction involved a 12-year old girl. His 2007 sexual assault and sexual interference conviction – the index offence – involved a 6-year old girl. The 1994 charges allegedly involved young female victims, I must be very cautious about those charges. They were withdrawn, and carry only a very small amount of weight. Far more important is that the index offence involved digital penetration of a little girl. The girl was a stranger to Mr. LeBlanc. She had simply wandered into his presence in a public place. Mr. LeBlanc, showing no impulse control whatsoever, promptly assaulted her. He was over 60 at the time. Any sexual assault on a child is obviously a very serious matter: R. v. Friesen, 2020 SCC 9.

[44] Dr. Ramshaw testified that Mr. LeBlanc’s maladaptive use of alcohol had resulted in neurological damage. He has dementia. She also testified that his historic use of alcohol produced disinhibiting effects. That elevates his risk for physically and sexually violent behaviour. Troublingly, he continued to want to drink and continued to deny any history of alcohol problems. I also accept Dr. Ramshaw’s opinion that Mr. LeBlanc would attempt to drink if he were able.

[45] Mr. LeBlanc’s history shows that there is a reasonable chance that he would take up any random opportunity that came his way, as he did when he committed the index offences. Indeed, given his lack of insight or understanding, and his continued sexualized comments, there is no reason to think he would act any differently around a small and vulnerable child. I am aware that he has not done so during his outings in public, but those are escorted outings – and for very good and obvious reasons. In my view, there is a real risk that something like the index offence could happen again, even though Mr. LeBlanc is much older.

[46] Is the conduct that would give rise to the risk criminal in nature? There is no doubt about it, the risk that Mr. LeBlanc poses is that he would commit a sexual crime against a child. That is obviously a risk of a serious crime.

[47] What is the nature of the risk posed by Mr. LeBlanc? Dr. Ramshaw testified that she conducted a mental status examination in February 2022. He continued to lack significant insight into his memory, cognition, and risk to others. He also had no memory of the index offences. He was eager to start drinking again. He continued to have cognitive deficits, such as memory impairment, impairment of executive function, and agnosia (described as naming/recognizing difficulties). Dr. Ramshaw’s opinion was that he remains a significant threat to the safety of the public.

[48] I agree with Dr. Ramshaw. I want to be clear that I am not delegating my function to Dr. Ramshaw, but I give her opinion great weight. In my view, it is reasonably foreseeable that Mr. LeBlanc would at least attempt to commit a sexual crime against a vulnerable child.

Is A Stay In The Interests Of The Proper Administration Of Justice?

[49] Section 672.851(8) of the Criminal Code states:

672.851 (8) In order to determine whether a stay of proceedings is in the interests of the proper administration of justice, the court shall consider any submissions of the prosecutor, the accused and all other parties and the following factors:

(a) the nature and seriousness of the alleged offence;

(b) the salutary and deleterious effects of the order for a stay of proceedings, including any effect on public confidence in the administration of justice;

(c) the time that has elapsed since the commission of the alleged offence and whether an inquiry has been held under section 672.33 to decide whether sufficient evidence can be adduced to put the accused on trial; and

(d) any other factor that the court considers relevant.

[50] When I consider each of the factors as well as all the circumstances, I find that the court should not stay the proceedings. The offence was obviously serious. The Supreme Court of Canada made it clear in R. v. Freisen that sexual offences against children will result in significant denunciatory sentences. This reflects society’s view of the moral blameworthiness of those who commit such offences. This was Mr. LeBlanc’s second such conviction. A dangerous offender designation was very much on the table. I think that there was more than a reasonable possibility that he would have been found to be one. Even if he had not, he undoubtedly would have been sentenced to a very significant penitentiary sentence.

[51] The salutary effects of a stay are obvious: it would bring finality to the proceeding and would certainly give Mr. LeBlanc closure. In my respectful view, however, a stay would tend to undermine confidence in the administration of justice. The Supreme Court of Canada analyzed that concept in the bail context in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. The context in St-Could was obviously different. One must be careful about applying the Court’s comments in a different context, obviously. There is, however, is some language in that case that I think is instructive.

[52] Section 515(10)(c) of the Criminal Code mandates that bail courts determine whether detention is required to maintain confidence in the administration of justice in all the circumstances – and goes on to mention certain specific factors relevant to bail. At paras. 78-80 of St-Cloud, Wagner C.J.C. applied the reasonable person test. The question is whether a release in the bail context (or a stay in the context of this case) would undermine confidence in the administration of justice in the eyes of a reasonable member of the public. A “reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter.” Such a person has familiarity with basic concepts, such as the presumption of innocence, but is not a legal expert. Wagner C.J.C. concluded at para. 80:

In short, the person in question in s. 515(10)(c) Cr. C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society's fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons.

[53] In this case a stay would undermine confidence in the administration of justice. A reasonable member of the community would understand that Mr. LeBlanc does not enjoy the presumption of innocence and has no understanding of why he was found guilty. A reasonable person would understand that criminal cases shouldn’t go on forever, but would also understand that a judge, based on all of the evidence (including two psychiatrists) had found that Mr. LeBlanc even as a 76 year old remains a danger – and specifically a danger to children. A reasonable member of the public would find it very puzzling how a stay of proceedings could be entered against a person like Mr. LeBlanc. A reasonable member of the public would find it very troubling, in my respectful view, that Mr. LeBlanc was no longer under the jurisdiction of a public authority.

[54] I turn to s. 672.851 (8)(c) of the Criminal Code. A great deal of time has passed since the offence. This case is unusual, however. Mr. LeBlanc has already been convicted. He was awaiting sentence when he was found to be unfit. There is no need to consider whether the Crown is still able to marshal a case against him.

[55] I therefore determine that it would not be in the proper interests of justice to enter a stay of proceedings.

DISPOSITION

[56] The ORB’s recommendation is rejected. There will be no stay of proceedings in this case.

Released: May 16, 2022

COURT FILE NO.: CR-21-00000126-00MO

DATE: 20220516

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALDORIE LEBLANC

REASONS ON APPLICATION FOR A STAY OF PROCEEDINGS

R.F. Goldstein J.