



WARNING

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.

(2) Subsection (1) does not
    apply

(a) in a
    case where the information relates to a young person who has received an adult
    sentence;

(b) in a
    case where the information relates to a young person who has received a youth
    sentence for a violent offence and the youth justice court has ordered a
    lifting of the publication ban under subsection 75(2); and

(c) in a
    case where the publication of information is made in the course of the
    administration of justice, if it is not the purpose of the publication to make
    the information known in the community.

(3) A young person referred
    to in subsection (1) may, after he or she attains the age of eighteen years,
    publish or cause to be published information that would identify him or her as
    having been dealt with under this Act or the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is
    not in custody pursuant to either Act at the time of the publication.

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    who contravenes subsection 110(1) (identity of offender not to be published),
    111(1) (identity of victim or witness not to be published), 118(1) (no access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    (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. J.F., 2019 ONCA 432

DATE: 20190530

DOCKET: C59907

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.F.

Appellant

Dean Embry, for the appellant

Jennifer Epstein, for the respondent

Heard: January 28, 2019

On appeal from the verdict of not criminally responsible
    on account of mental disorder entered by Justice Sharon M. Nicklas of the
    Ontario Court of Justice, dated June 25, 2010.

Lauwers
    J.A.:

[1]

On June 7, 2010, the appellant, J.F., was found guilty of three counts
    of uttering a threat, one count of arson, one count of failing to comply with a
    recognizance and one count of possession of a weapon for a dangerous purpose.
    On June 25, 2010, he was found not criminally responsible on account of a
    mental disorder (NCR). J.F. was later ordered detained after a hearing before
    the Ontario Review Board and since has remained subject to a detention order.

[2]

J.F. asserts that his guilty pleas were invalid and appeals against the
    findings of guilt on the basis that he received ineffective assistance of
    counsel, which resulted in a miscarriage of justice. J.F. seeks to have the
    guilty pleas struck and a new trial ordered. He also seeks to have the NCR verdict
    set aside on the basis that it was unreasonable.

[3]

J.F. makes several arguments in the context of the fact, acknowledged by
    trial counsel, that J.F. did not want his mental health to be put in issue and so
    instructed counsel.

[4]

First, the process that led to J.F.s current disposition was not just
    and fair because of the unusual role played by trial counsel, a well
    experienced and competent criminal lawyer. Rather than defend the charges
    vigorously, trial counsel appears to have stepped out of his role as defence
    counsel. Trial counsel effectively took on the role of a parent or social
    worker, leaving J.F. defenceless and without the effective assistance of
    counsel.

[5]

Second, neither J.F. nor his parents understood the implications of an
    NCR finding, that he could be in custody well beyond the sentences that would
    have been imposed for convictions on the charges.

[6]

Third, trial counsel persuaded J.F. to plead guilty in part in order to
    access the NCR disposition, even though there might have been a plausible
    defence on the arson charge, which was the most serious charge he faced.

[7]

Fourth, Dr. William J. Komer, the psychiatrist who authored the report
    leading to the NCR finding, based the opinion on J.F.s Aspergers Disorder,
    which is not a reasonable basis for an NCR finding.

[8]

There is merit in the first three arguments, which I address in turn
    below. Accordingly, I would strike the guilty pleas and direct a new trial, and
    set aside the NCR verdict.

A.

Trial Counsel Played an Unusual
    Role

[9]

The test for ineffective assistance of counsel can be briefly stated. The
    client must establish on a balance of probabilities that trial counsel's
    conduct fell below the standard of reasonable professional assistance and that
    the ineffective representation resulted in a miscarriage of justice:
R. v.
    Cubillan
(2018) 143 O.R. (3d) 376 at para. 8, citing

R. v. Joanisse

(1995), 102 C.C.C. (3d) 35
    (Ont. C.A.), at pp. 59-61, [1995] O.J. No. 2883, at paras.63-81, leave to
    appeal refused, [1996] S.C.C.A. No. 347. When the ineffective representation
    "undermine[s] the appearance of the fairness of the trial, or the
    reliability of the verdict," then a miscarriage of justice is made out:
R.
    v. Archer
(2005), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 120.

[10]

Trial
    counsel testified that he developed concerns about J.F.s mental health at the
    outset of his retainer based on what he called the bizarre behaviour
    underlying the charges. On November 25, 2009 trial counsel requested the court
    to order
that J.F. be
    psychologically and psychiatrically assessed
under s. 34 of the
Youth Criminal Justice Act
, S.C. 2002, c. 1. He explained that
    he did so 
[t]o provide a basis for [J.F.s] mother and father to
    move forward  given his cognitive issues, given his mental health issues,
    given all the issues that underline the behaviour that brought him before the
    court.

[11]

The
    first psychiatric report was by Dr. Jose Mejia, dated April 2010. Dr. Mejias
    diagnosis was that J.F. suffers from pervasive developmental disorder not
    otherwise specified, a learning disability, and adolescent antisocial
    behaviours. Dr. Mejia noted that J.F. was [c]ognitively speaking  impressed
    to be of average to superior intelligence with no obvious deficits, and that
    criminal responsibility may be in question given [J.F.s] cognitive
    difficulties. That being established and despite his superficial capacity to
    distinguish right from wrong, his appreciation of the consequences of his
    actions could certainly be severely compromised.

[12]

Trial
    counsel agreed: It was so apparent to anybody who talked to [J.F.], anybody
    who met with his parents, anybody who knew his background that he was suffering
    from significant mental illness.

[13]

Trial
    counsel requested the report to be provided through the court under s. 34 of
    the
Youth Criminal Justice Act
,
    he said, in order to spare J.F.s parents the costs of the assessments, but the
    effect of doing so was to make the content of the reports immediately available
    to the Crown.

[14]

Based on Dr. Mejias report the Crown sought an assessment
    under s. 672.11 of the
Criminal Code
, R.S.C. 1985, c. C-46,

to determine whether J.F. was criminally responsible for the
    offences charged. J.F. complains that trial counsel did not oppose the
    application and made no submissions. Trial counsel explained: I did not oppose
    the Crowns application as I did not have the grounds to do so.

[15]

J.F.
    was sent for an NCR assessment to Dr. Komer who provided two reports to the
    court. The details of the reports will be discussed below. In his first report Dr.
    Komer declined to carry out an NCR assessment because J.F. was denying any
    specific intent or of having committed his alleged offences.

[16]

After
    J.F. pleaded guilty on June 7, 2010, the Crown sought an assessment for NCR
    purposes. On that occasion trial counsel said: [N]otwithstanding the  [J.F.s]
    instructions, Your Honour, I think my friend is  that the grounds upon which
    she requests an assessment is appropriate. Trial counsel then asked the court
    to tell J.F. that he had to be cooperative with the assessment order.

[17]

Following
    J.F.s guilty plea, Dr. Komers second report led to the NCR finding. At the
    NCR hearing on June 25, 2010 the trial judge had the three reports, the one
    from Dr. Mejia and the two from Dr. Komer, and reached the NCR verdict. Trial
    counsel did not oppose the NCR verdict. He stated on the record: I take no
    issue with the finding otherwise being requested of you by learned counsel. Trial
    counsel did not seek to rebut the court-ordered assessment. He testified:

[J.F.] didnt have sufficient
    funds and that was reviewed with him. He knew his mother and father did not
    have the monies to otherwise do that.

[18]

J.F.s
    factum fairly states the evidence:

The Appellant testified that he never gave Trial Counsel
    instructions to not oppose the finding. Trial Counsel agreed and testified that
    he did not seek some of the necessary instructions from the Appellant because
    he did not believe that they would be understood. Trial Counsel stated that he
    could not have directly asked the Appellant if he took issue with the finding
    of NCR, as the Appellant would not have known the difference. Trial Counsel
    ultimately could not recall if he asked the Appellant if he took issue with
    NCR.

[19]

There
    is real doubt as to whether J.F. or his parents fully understood the course
    that trial counsel embarked upon, apparently without informed instructions.

B.

Neither J.F. nor his Parents Fully Understood the Implications of an NCR
    Finding

[20]

There
    is considerable discrepancy in the evidence of J.F. and trial counsel about
    what J.F. was told, when he was told, and what he knew about the consequences of
    an NCR finding to which J.F. asserted that he was utterly opposed. Although
    trial counsel asserted that he provided full information to J.F. and to his
    parents, he acknowledged receiving a telephone call from J.F.s mother asking:
    What does being found not criminally responsible mean for [J.F.]? She
    followed up with a letter to trial counsel on June 18, 2010 in which she said:
    [J.F.] does not understand the full impact of an NCR label. She added: Neither
    do we as parents for that matter.

[21]

Trial
    counsel gave evidence about what he discussed with J.F. regarding the impact of
    an NCR finding from contemporaneous notes from June 23, 2010 when he met J.F.
    in the holding cells, and from June 25, 2010, the day of the NCR hearing. He
    also met with J.F. after the hearing. Trial counsel said: Ive told [J.F.]
    that hes not going to be hospitalized forever. Trial counsel testified he had
    said something like, some six months to a year. J.F., for his part, testified
    that after the hearing trial counsel told him that he would not be in the
    hospital for a long time: [H]e said I would not be in the hospital
    indefinitely. He said that to me specifically.

[22]

There
    is real doubt as to whether J.F. or his parents fully understood the impact of
    an NCR verdict on J.F.s liberty interest.

C.

The Guilty Pleas were Problematic

[23]

The
    context for the guilty pleas was set by Dr. Komers first report, dated May 17,
    2010. Although he opined that J.F. was fit to stand trial, Dr. Komer declined
    to carry out an NCR assessment. He explained why he could make no NCR finding
    then:

His denial of any specific intent
    or of having committed his alleged offences, has limited my ability to express
    an opinion about his criminal responsibility with regards to mental disorder at
    the time of his alleged offences. I would recommend that he be assessed
    regarding his criminal responsibility with regards to mental disorder should it
    be determined that [J.F.] committed his alleged offences. He does, however,
    have difficulty understanding the consequences of his behaviour as a result of
    his Aspergers Disorder.

The implication was that unless J.F. pleaded guilty, no
    NCR finding could be made.

[24]

Arson
    was the most serious charge, and Dr. Komers first report suggested J.F.s lack
    of intent as a possible defence:

[J.F.] said that he was bored
    while on the bus and while playing with a lighter and looking in another
    direction out a window, papers accidentally set on fire. He said that he
    attempted to put the fire out and tried to tell the bus driver what happened.
    He minimized his actions on the bus and stated I dont see anything illegal
    about what happened a tiny little one minute mistake.

[25]

J.F.
    argues that trial counsel could have pursued the issue of whether the fire on
    the bus was accidental. The complaint is that trial counsel did not pick up on
    this important detail and provide a full defence.
J.F.
    insisted that he did not think he was guilty of arson. Trial counsel told him
    that he was guilty, and that his parents could not afford to pay for a trial.

[26]

On
    June 7, 2010 J.F. followed trial counsel's instructions to agree with the
    process, and pleaded guilty to each of the charges as read. The Crown then
    read in the facts at the end of which trial counsel said: He believes those facts
    are pretty close to what occurred. Is that correct, [J.F.]? To which J.F.
    responded: Yes. The trial judge made the finding of guilt and again referred J.F.
    to Dr. Komer for an NCR assessment.

[27]

There
    is real doubt as to whether J.F.s plea was informed, unequivocal and voluntary.

D.

Dr. Komers NCR Conclusion was not
    Unreasonable

[28]

In
    his second report, dated June 22, 2010, Dr. Komer opined that J.F. was not
    criminally responsible for the charged offences. The Crown argues that in light
    of the evidence given by Dr. Mejia and Dr. Komer, a finding that J.F. was NCR
    would have been made in any event.

[29]

Dr.
    Komers second report relies on his first report, which recounted J.F.s
    version of events surrounding the alleged offences: He denied having made any
    threats through the Internet and said that charges related to this are false.
    Dr. Komer then related J.F.s statements about the fire on the bus set out
    above. He went on:

[J.F.] said that he pointed a
    knife at himself because he thought the police officer was going to kill him
    and he preferred to kill himself. When asked if he felt remorseful for his
    actions he stated I dont believe I did anything wrong. You have to do
    something wrong to feel sorry and I look at it as everyone makes mistakesI
    dont think theres anything to feel sorry about. Everybody could make that
    mistake.

[30]

Dr.
    Komer gave a summary opinion in the first report, finding:

[J.F. suffers from] a pervasive
    developmental disorder, Aspergers Disorder. He has impaired social
    interaction, displayed repetitive and stereotyped behaviours and had significant
    impairment in functioning. [J.F.s] problems have been severe and pervasive.
    [He] also has a conduct disorder. He has previously been identified as having
    borderline intellectual functioning, an attention deficit hyperactivity
    disorder and a bipolar disorder.

[31]

In
    his second report Dr. Komer added more of J.F.s comments on the charges, some
    of which Crown counsel brought to the courts attention, including the
    following:

[J.F.] stated, I dont think words
    of any kind are threateningonly actions is the important thing.

[J.F.] discussed circumstances surrounding his index offences.
    His responses were consistent with the reports from his parents about what he
    told them. He acknowledged having made threats through the Internet to the
    victims and said that he did nothing wrong, should not have been charged, is
    not remorseful, feels victimized by being charged and should be thanked for his
    actions. Regarding the threats to Ms. Crane, [J.F.] stated it is an
    abomination to try to limit whats in peoples mindI think it was good in a
    senseIm speaking what comes to my mindwhat I did was an honour. He said
    that Ms. Crane would not have felt threatened at all and should have accepted
    what was communicated to her and not called the police. With regards to the
    threats to Mr. Bell about Ms. Bell, [J.F.] stated, I was enjoying myself
    speaking my mind what came to my head. I always feel good inside releasing my
    thoughts. He said that if he didnt send the threat, he would have obsessed
    over and over. [J.F.] stated, I would be shocked if someone told me that
    people actually did get concerned about people speaking their mind. With
    regards to the threat to Mr. Audet, he stated, I thought it was a comedian
    joke when someone told me the police were coming to arrest me. [J.F.] said
    that Mr. Audet did not feel threatened at all and should have seen him as an
    honourable person.

These facts are undoubtedly telling about J.F.s
    mental state.

[32]

Dr.
    Komers NCR opinion is set out in the last paragraph of his second letter:

In my opinion, [J.F.] was not criminally responsible with
    regards to mental disorder at the time of his index offences. [J.F.] lacked a
    knowledge of the wrongfulness of his actions as a result of his Aspergers
    Disorder.

[33]

J.F.
    relies on this sentence to argue that the diagnosis of Aspergers Disorder was
    the sole or main basis of the NCR finding, which, based on several authorities,
    was unreasonable.

[34]

Perhaps
    this interpretation of Dr. Komers opinion unfairly decontextualizes the opinion
    sentence, as can be seen when the summary paragraph is read as a whole:

In summary, [J.F.] is a 17-year-old youth who has, in my
    opinion, a pervasive developmental disorder, Asperger's Disorder. He has
    impaired social interaction, displayed repetitive and stereotyped behaviours
    and had significant impairment in functioning. [J.F.s] problems have been
    severe and pervasive. [J.F.] also has a conduct disorder. He has previously
    been identified as having borderline intellectual functioning, an attention
    deficit hyperactivity disorder and a bipolar disorder. [J.F.] is, in my
    opinion, fit to stand trial. In my opinion, he was not criminally responsible
    with regards to mental disorder at the time of his index offences. [J.F.] lacked
    a knowledge of the wrongfulness of his actions as a result of his Asperger's Disorder.
    He is an individual who would likely best be managed and function in a
    structured, supportive, supervised, predictable and reliable environment. He
    has difficulty with inconsistencies, change, social cuing, anger management and
    relationships. [J.F.] is, in my opinion, a significant threat to the safety of
    the public.

[35]

However,
    I need not determine whether the NCR verdict was based on a flawed psychiatric
    report and is unreasonable, in light of the disposition.

E.

Disposition

[36]

I
    would not impugn the good faith of trial counsel. Nonetheless, it is plain that
    he stepped outside of his role as defence counsel, and did not provide
    effective assistance. This not only effectively left J.F. defenceless in the
    face of the prosecution, but smoothed the way to an NCR verdict that J.F. did
    not want pursued. Trial counsels request for an assessment under s. 34 of the
Youth Criminal Justice Act
paved the way
    to an NCR verdict. It is not clear on the evidence whether trial counsel got
    instructions from J.F. or his parents to request the s. 34 report, but it is clear
    that J.F. and his parents did not fully understand the implications of the inexorable
    process that trial counsel deliberately initiated. Trial counsel's personal commitment
    to a mental health outcome, which he sincerely thought was in J.F.s long term
    best interests, blinded him to the defence possibilities and led him to
    encourage J.F. to plead guilty, even in the face of a possible defence to the
    most serious charge. Consequently, the entire process was so deeply flawed that
    neither the guilty pleas nor the NCR verdict can stand.

[37]

J.F.
    is a very troubled young man. Crown counsel advised the court in oral
    submission that the hospital where J.F. is detained considers him to be
    dangerous to public safety and will certify him on a Form 1 under the
Mental Health Act
, R.S.O. 1990, c. M.7,
if he is successful in this appeal.

[38]

Even
    so, J.F. was entitled to a procedurally fair process with respect to the
    charges he was facing, but that was denied to him by the ineffective assistance
    of trial counsel.

[39]

For
    the reasons set out above, I would strike the guilty pleas and direct a new
    trial, and I would set aside the NCR verdict.

Released: May 30, 2019

P. Lauwers J.A.

I agree. K.
    Feldman J.A.

I agree. I.V.B. Nordheimer J.A.


