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Criminal - NCR - Appeals. Sookram (Re)
In Sookram (Re) (Ont CA, 2024) the Ontario Court of Appeal considered the SOR on an appeal from an ORB decision:(i) Standard of Review
[10] Under s. 678.78(1) of the Criminal Code, an appeal against a Board’s order can only be allowed if the order 1) is unreasonable or cannot be supported by the evidence, 2) is based on a wrong decision on a question of law, or 3) gives rise to a miscarriage of justice. When, as here, the appeal is grounded in the first branch, the applicable standard is reasonableness simpliciter: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 34. As the Supreme Court instructed in Vavilov, at para. 85, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”. See also Nguyen (Re), 2020 ONCA 247, 387 C.C.C. (3d) 13, at para. 28; Sim (Re), 2020 ONCA 563, at para. 67; and Kipusi (Re), 2024 ONCA 795, at para. 4. A Board's decision is only owed deference where it meets these criteria: Sim (Re), at para. 68, referring to Vavilov, at para. 85. . Casey (Re)
In Casey (Re) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from a decision of the ORB, here commented on the appellate SOR:[14] As per s. 672.78(1) of the Criminal Code, this court may set aside an order of the Board only where it determines that: (a) the decision is unreasonable or cannot be supported by the evidence; (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice: see also R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31. The standard is whether the Board’s decision was reasonable, not whether the court would have reached the same conclusion as the Board: Owen, at para. 45. The Supreme Court of Canada has held that “[i]f the Board’s decision was such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene”: Owen, at para. 33. . R. v. Nahmabin
In R. v. Nahmabin (Ont CA, 2024) the Ontario Court of Appeal allowed an NCR appeal:[1] On September 5, 2019, the appellant was found Not Criminally Responsible on account of Mental Disorder (“NCRMD”) for the offences of breach of probation, mischief, and assault with a weapon. The Crown proceeded summarily on the assault with a weapon charge, and by indictment on the other charges. We grant the appellant leave under s. 675(1.1) of the Criminal Code, R.S.C., 1985, c. C-46 to have his appeal on the summary charge heard along with his appeal on the charges where the Crown elected to proceed by indictment.
[2] The appellant appeals the NCRMD finding, arguing: 1) there were procedural deficiencies in the plea and the NCRMD proceedings that rendered the process fundamentally unfair and caused a miscarriage of justice; and 2) the trial judge improperly applied the test for an NCRMD finding, failed to provide a sufficient basis for the finding that the requirements of s. 16 of the Criminal Code were met, and therefore the verdicts were unreasonable.
[3] We agree that the appeal should be allowed.
[4] We start with the well-trod principle, recently emphasized by this court in R. v. Ivins, 2024 ONCA 408, at para. 7:[G]iven the potential consequences of being found NCRMD – including detention in secure hospital settings that involve serious deprivations of liberty, and the possibility of lifelong supervision under Part XX.1 of the Criminal Code – procedural fairness must be jealously guarded and strictly enforced in this context. [5] Procedural fairness includes fairness in the process leading up to the NCRMD finding, as well as the requirement that the trial judge articulate the test under s. 16 of the Criminal Code and explain why the evidence before the court justified the NCRMD verdict so that the accused knows why they were found NCRMD: Ivins, at para. 6; R. v. Laming, 2022 ONCA 370, 413 C.C.C. (3d) 409, at paras. 63-64; and R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135, at paras. 45-52, 73.
[6] Neither the process nor the trial judge’s reasons in this case met those criteria.
[7] The procedural unfairness in the process leading up to the NCRMD finding included the following aspects. First, the reply to the arraignment on the charges was that the appellant was “not criminally responsible”, which is not a formal plea: R. v. D.M.G., 2011 ONCA 343, 105 O.R. (3d) 481, at para. 43. Second, other than asking him if the “plea” of not criminally responsible was “right”, there was no inquiry of the appellant as to whether he understood the consequences of a finding of NCRMD. This was particularly significant in this case given the appellant’s “repeatedly expressed distress at the prospect of being found NCR” and being “locked up forever” that was communicated throughout his assessment to the psychiatric expert who examined him and opined that the defence of NCRMD is available for the appellant.
[8] The Crown read in a summary of facts to which the appellant’s trial counsel (not the appellant’s current counsel) took no issue. However, the trial judge made no findings with respect to the facts read in by the Crown or the expert’s report. She did not refer to s. 16 of the Criminal Code nor explain why the evidence before the court justified the NCRMD verdict. Given the appellant’s serious equivocation communicated to the examining psychiatrist about an NCRMD finding, it was incumbent in these circumstances to inquire about the appellant’s comprehension of the consequences of and his firm agreement to an NCRMD finding. The trial judge did not do that. Nor did the trial judge’s brief reasons explain to the appellant why he was found NCRMD, rather, she stated:[H]aving reviewed the report and the comments in relation to the offences before the court I am prepared to make the finding of not criminally responsible in relation to Mr. Nahmabin on all matters before this court today. [9] We do not accept the Crown’s submission that there was no miscarriage of justice here. We agree that the trial judge’s very brief reasons must be assessed contextually, in light of the evidence before the trial judge and the submissions of counsel. The difficulty here is that the terseness of the trial judge’s reasons means that we are unable to ascertain whether or how the trial judge grappled with the evidence before her or the criteria under s. 16 of the Criminal Code. Moreover, the fact that the NCRMD verdict could have been reached on this record is no answer to the material procedural deficiencies in this case that rendered the process unfair.
[10] There can be no shortcuts in a process that could result in such serious consequences to the accused. There must be a proper plea to the arraignment on the charges. Where there is agreement on the factual underpinnings of the offences, the court must nevertheless make findings with respect to the actus reus of the offences. The court cannot simply rely on a consent to a NCRMD finding but must reference s. 16 of the Criminal Code and explain why the evidence before the court justifies the NCRMD verdict.
[11] None of these steps were followed here. Accordingly, we find there was procedural unfairness amounting to a miscarriage of justice. . McAnuff (Re)
In McAnuff (Re) (Ont CA, 2024) the Ontario Court of Appeal considered the SOR for an appeal from an ORB ruling:[17] This court will only interfere with a decision of the Board if the decision was unreasonable or if the Board made an error of law: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31. A Board decision is reasonable if its risk assessment and disposition order are supported by reasons that can bear even a “somewhat probing” examination: Owen, at para. 33. The court must evaluate reasonableness by considering the reasons given by the Board and the context in which the decision was made to determine whether an acceptable and defensible outcome has been reached: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 22. . Skeete (Re) [SOR]
In Skeete (Re) (Ont CA, 2024) the Ontario Court of Appeal considers the appellate SOR for ORB decisions:[8] The leading case dealing with the standard of review of ORB decisions is R. v. Owen, 2003 SCC 33. In Owen, the court said that the ORB’s findings are reviewed on a reasonableness standard. If the ORB’s decision falls within a range of reasonable outcomes, it is entitled to deference, absent an error in law or a miscarriage of justice: at para. 31. The test for reasonableness is whether the ORB’s disposition order is supported by reasons that can bear an even “somewhat probing” examination: at para. 33.
[9] The ORB majority relied heavily on the testimony of the appellant’s treating psychiatrist at Ontario Shores, Dr. J. Pytyck, who favoured a transfer to CAMH because it offers a sexual behaviour clinic that is not available at Ontario Shores. According to Dr. Pytyck, many of the appellant’s problems are rooted in his hypersexuality and a pattern of concerning behaviour towards others, particularly those who are more vulnerable. The ORB majority found that Ontario Shores has tried, but failed, to address these issues through therapies and psychoeducation. Accordingly, the ORB majority concluded the “expertise of CAMH’s sexual behaviour clinic, including a fresh analysis, and ready resources, satisfy the Board that would enhance Mr. Skeete’s potential positive trajectory while potentially protecting the public.”
[10] In our view, this analysis and conclusion easily come within the reasonableness framework enunciated by the Supreme Court of Canada in Owen. Accordingly, the appeal is dismissed.
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