Sep 12, 2020

Canadian Criminal Appeals - Week of September 7, 2020

Sim (Re), 2020 ONCA 563 (CanLII)

In Sim (Re), 2020 ONCA 563 the ONCA (per Strathy CJO) absolutely discharged Mr. Sim after 20 years under the jurisdiction of Part XX.1 of the Code (for a theft under in 2000 and assaults - while detained - in 2007)(7-9). By all accounts, Mr. Sim had made “exceptionally good progress over the years” - including the absence of any evidence of any physically violent or aggressive conduct for at least ten years - and “there seems to be only one thing standing in the way of an absolute discharge for Mr. Sim: he smokes cannabis from time to time and insists that he will continue to do so, in spite of strong advice to the contrary from his psychiatrist, Dr. Gulati” (16). Among other things, Dr. Gulati was concerned that cannabis use increased the risk of relapse to the point that “something similar” to his prior offending “might occur” (42-43). After helpfully summarizing Part XX.1 jurisprudence since Winko (63-65), the ONCA concluded that the Ontario Review Board erred by focusing “almost exclusively on the evidence supporting the continued restrictions on Mr. Sim’s liberty” and by providing “virtually no analysis of the evidence…that supported Mr. Sim’s request for an absolute discharge” (70-77). The ORB also misapprehended the evidence about whether Mr. Sim had recently experienced any positive symptoms of psychosis: among other things, Mr. Sim becoming “upset and angry” during a conversation with Dr. Gulati about cannabis use was a “trivial incident” that even Dr. Gulati had not characterized as “evidence of decompensation” (78-87). In observing that “[p]eople with mental illness are entitled to become irritated, upset, impatient and angry without their conduct being pathologized as symptomatic”, the ONCA has cast light and nuance on a troubling forensic tendency in this area of law (86). Kudos to Anita Szigeti, a leading Part XX.1 advocate, for this important decision.

In R v Mehl, 2020 BCCA 229, the BCCA dismissed the respondent Crown’s application under s. 682(1) of the Code to have the trial judge report about whether s/he observed “any of the jurors make a gesture in the direction of the public gallery” during the appellant’s first degree murder trial (6). This application was in response to the appellant’s anticipated appeal on the basis that a juror’s “gestures should be interpreted as expressions of sympathy or support that display a reasonable apprehension of bias” (2). While such reports can “play a useful role in the appellate process particularly in respect of issues that are not reflected on the record, including the behaviour of jurors”, this particular application failed because, inter alia, there was already “an abundance of proposed fresh evidence” on this issue - consisting of 22 witness, including the appellant, trial counsel, sheriffs and spectators seated in the gallery of the courtroom - and because it might be unfair to draw the trial judge into this “factual controversy” given that the interpretation of a gesture, if any, by the trial judge “stands on no greater footing than the assessment of anyone else who observed the gesture” (3-5, 19-23).

Other noteworthy matters include: the ONCA dismissing a Crown sentence appeal and upholding a suspended sentence for an aggravated assault with a knife (R v Hudson, 2020 ONCA 557); a 2:1 majority of the ABCA allowing the Crown appeal and upholding the mandatory lifetime SOIRA order for any and all sex offenders who are convicted of two or more sexual offences - irrespective of the seriousness of the offences or the offender’s propensity to reoffend (R v Ndhlovu, 2020 ABCA 307); the NSCA dismissing a wife’s application for an injunction to block her husband from accessing medical assistance in dying - for which he was determined eligible under to s. 241.2 of the Code (Y v Swinemar, 2020 NSCA 56).