



THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (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.

111. (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.

138. (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    contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access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    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no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.






CITATION:
R. v. P.A., 2011 ONCA 673



DATE: 20111028



DOCKET: C53295



COURT OF APPEAL FOR ONTARIO



Doherty, Weiler and Cronk JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



P.A.



Appellant



P. Andras Schreck and Bernadette Saad, for the appellant



Dena Bonnet, for the respondent



Heard:
October 12, 2011



On appeal from the verdict of not
          criminally responsible by reason of mental disorder entered by Justice
          Malcolm McLeod of the Ontario Court of Justice, sitting as a Youth Court
          judge, dated October 26, 2010.



ENDORSEMENT



I.         Introduction

[1]

The appellant, P.A., an aboriginal youth, is a young person within the
    meaning of the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (the 
YCJA
). 
    He is mentally ill and was unrepresented in the proceedings at first instance.

[2]

On September 2, 2010, the appellant entered a plea of guilty to one
    count of break and enter with intent to commit an indictable offence.  The
    trial judge accepted that plea, at which time the Crown indicated that it would
    seek a finding of not criminally responsible by reason of mental disorder
    (NCR).  This led to an NCR hearing on October 26, 2010, following which the
    Youth Court judge found the appellant NCR and ordered that he be detained at
    the Mental Health Centre Penetanguishene  Oak Ridge Division, the maximum
    secure forensic psychiatric facility for adults in Ontario (Oak Ridge).  The
    appellant has been detained at Oak Ridge ever since, under successive orders of
    the Ontario Review Board (the ORB).

[3]

The appellant appeals the NCR verdict and his court-ordered detention at
    Oak Ridge.

[4]

At the conclusion of oral argument, we allowed the appeal with reasons
    to follow.  We set aside the NCR verdict, directed that a conviction be entered
    on the charge of break and enter with intent to commit an indictable offence, and
    sentenced the appellant to one days imprisonment having regard to the time that
    he has already spent in custody (approximately 15 months).  These are our
    reasons for that disposition.

II.        Issue on Appeal

[5]

In support of his appeal, the appellant argued that his plea and NCR
    hearing were irremediably tainted by a series of procedural errors and that, in
    any event, the NCR verdict was unreasonable given the nature of the psychiatric
    evidence adduced by the Crown.  The appellant, therefore, maintained that his
    guilty plea and the NCR verdict should be set aside and the criminal
    proceedings against him should be stayed or, alternatively, that a new trial
    should be ordered.  In the further alternative, the appellant sought a
    declaration that his detention at Oak Ridge pending disposition by the ORB was unlawful.

[6]

The Crown conceded that the appellants plea and the NCR hearing
    suffered from fatal procedural defects, with the result that the appeal should
    be allowed.  However, the Crown argued that this is not a case where the
    extraordinary remedy of a stay order should be granted.  Rather, the Crown
    maintained that a new trial should be ordered at which the Crown, if so
    inclined, could proceed with an NCR application.

[7]

Accordingly, the only issue in contention concerns the question of an
    appropriate remedy.

III.      Discussion

[8]

We agree with the parties that the appellants plea and the NCR hearing
    were rife with reversible errors.  These included the following:

1)

contrary
    to s. 606(1.1) of the
Criminal Code
(the Code), and notwithstanding
    clear indications on the record that the appellants guilty plea may not have
    been voluntary, no plea inquiry was conducted.  Indeed, the record reveals that
    little, if any, effort was made to ensure that the appellants guilty plea was
    valid;

2)

there was
    no evidence on which an NCR verdict could be returned.  In particular, the
    expert called by the Crown at the NCR hearing, on whose testimony the Crown
    relied in seeking an NCR verdict, failed to express any opinion on whether the
    appellant was incapable of appreciating the nature and quality of his actions
    or knew that his actions were wrong at the time of the offence.  Both in his
    written report and his testimony, the Crowns expert directed his attention to
    the question of whether the appellant suffer[ed] from a severe mental illness
    at the time [of the offence].  His opinion evidence did not address the issue
    of the appellants criminal responsibility, the requisite inquiry under s. 16
    of the Code.

A person suffering from
    a mental disorder, even a severe mental disorder, is not considered by reason
    only of that disorder to be NCR.  The presumption in s. 16 of the Code still
    applies and must be rebutted by proper evidence;

3)

importantly,
    trial fairness was compromised.  Specifically, the Youth Court judge failed to
    inform the unrepresented appellant of his right to counsel, his right to
    cross-examine witnesses  including the Crowns medical expert, and his right
    to call evidence.  Perhaps most significantly, having made an order for the
    appointment of counsel on an earlier occasion, the Youth Court judge proceeded
    without counsel for the appellant and made no inquiries as to why his order had
    not been complied with.  Further, the Youth Court judge appears to have given
    no consideration to the appointment of an
amicus curiae
as an
    alternative;

4)

it also appears
    that the Youth Court judge and the Crown failed to explain the implications of
    an NCR assessment to the appellant; and

5)

the
    failure to consider whether the appellant, a youth at the time of the offence,
    should be detained at Oak Ridge (an adult psychiatric facility) pending his
    hearing before the ORB, having regard to ss. 84 and 141(11) of the
YCJA
.

[9]

These were serious errors.  In light of these errors, the NCR verdict
    cannot stand.  That leaves for consideration the question of the appropriate
    remedy.

[10]

In our view, this is not a case warranting a new trial.  Putting the
    Crowns case at its highest, it could not support an NCR verdict.  We agree
    with the appellants submission that, in the circumstances, the Crown is not
    entitled to another opportunity to make out what it failed to establish at the
    original NCR hearing.

[11]

However, we are also not satisfied that the extraordinary remedy of a
    stay is appropriate in this case.  A stay of criminal proceedings is justified
    only in the clearest of cases where no other remedy is available: see
R.
    v. Jewitt
,
[
1985] 2 S.C.R. 128, at pp. 136-137;
R.
    v. OConnor
, [1995] 4 S.C.R. 411, at para. 82.  This exacting threshold for
    a stay is not made out in this case, particularly as another suitable remedy is
    available.

[12]

Defence counsel have indicated that, rather than undergoing a new trial,
    the appellant remains prepared to acknowledge his guilt on the break and enter
    with intent charge.  Counsel have also informed the court that they are satisfied
    that the appellant is competent to enter a valid plea.

[13]

In the particular circumstances of this case, we conclude that the
    proper disposition is to allow the appeal, set aside the NCR verdict and, based
    on the appellants fresh acknowledgement of guilt, enter a conviction on the
    charge of breaking and entering with intent under the powers of this court set
    out in s. 686(4) of the Code, and we so order.

IV.      Sentence

[14]

As we have said, the appellant has been in custody for approximately 15
    months.  He has been detained at Oak Ridge, an adult facility, throughout.  It
    is not open to this court to sentence him to time served: see
R. v. Guidolin
,
    2011 ONCA 264, [2011] O.J. No. 1649 (C.A.);
R. v. Mathieu
, 2008 SCC 21, [2008]
    1 S.C.R. 723.  We therefore sentence the appellant to one days imprisonment.

[15]

We are aware that the Crown has suggested that the appellant, if
    released from Oak Ridge as our disposition contemplates, may pose a risk to
    himself or others.  Without expressing any view on the merits of this claim, we
    note that, as the authorities are well aware, civil commitment options are
    available under the provisions of the
Mental Health Act
, R.S.O. 1990, c.
    M.7.

[16]

Finally, the court acknowledges the able assistance of P. Andras Schreck
    and Bernadette Saad, who appeared as
pro bono
counsel for the appellant
    on this appeal.  Their involvement was most helpful to the court.

Doherty
    J.A.

Karen
    M. Weiler J.A.

E.A.
    Cronk J.A.


