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Court of Appeal upholds part of youth’s appeal, dismisses rest in Courtenay case

Issue surrounded designation of not criminally responsible by reason of mental defect
The Court of Appeal recently decided on a Courtenay youth case over a mental disorder designation. (Black Press file photo)

A youth has won a partial victory with the B.C. Court of Appeal over a Courtenay youth court case in which she was declared not criminally responsible by reason of mental defect (NCRMD).

The Court of Appeal released its decision on Jan. 18, in which the three-person panel accepted the girl’s appeal for an arson charge but not for other charges. She cannot be named because of a publication ban under the Youth Criminal Justice Act.

In 2019, counsel agreed to the NCRMD decision for the appellant, 12 years old at the time of the first offence, on charges of arson, mischief, two assaults and one assault causing bodily harm.

In her affidavit for the appeal, she said she would not have agreed to the NCRMD decision if she had known she would have to stay in the hospital and follow conditions until a review board discharged her, which could be indefinitely.

“I would have pleaded guilty in order to get a normal youth sentence that would be guaranteed to end, even if it meant I had to go to jail for a while,” she said in the Court of Appeal decision.

The mischief count resulted from an incident at a group home in September 2018 in which the appellant broke a glass door and threw cups, plates and food in the kitchen area.

The following month, she stole two lighters from a convenience store and used them to ignite shrubs. For this, she was charged with arson.

She was committed under the Mental Health Act and sent to a few facilities. In February 2019, the appellant was reported to have hit, scratched and pulled the hair of a nurse in one incident, and two days later, she allegedly struck, scratched and attempted to kick a care worker and a security guard. She was charged with two counts of assault and one of assault causing bodily harm.

A judge ordered a psychiatric assessment. The psychiatrist found the appellant met the criteria for a number of disorders, though it was unclear if she suffered from a psychotic illness or experienced psychotic symptoms because of taking illicit substances.

At trial, counsel submitted a number of charges could be settled through the NCRMD designation. The decision notes the appellant attended via video conference, but the court did not ask if she had consented to the NCRMD decision.

Canada’s Department of Justice notes on its website that few accused persons seek or meet the threshold for a mental disorder determination such as NCRMD, and while it may prevent a criminal conviction, it can result in an indeterminate stay within the system for managing mentally disordered accused persons.

As well as claiming she was uninformed, the appellant said she had ineffective counsel and the verdict was unreasonable and not supported by evidence.

The Court of Appeal decision notes that even Crown conceded the NCRMD designation for the arson offence was unreasonable because of a lack of evidence the appellant was incapable of appreciating the nature and quality of the act or of knowing it was wrong.

However, the court found the appellant did not demonstrate any appearance of unfairness or a miscarriage of justice, and it dismissed the appeals for the mischief and assault offences.

“There was nothing about the process leading to the assessment hearing that should have put the judge on notice that the appellant may not have been adequately informed about the consequences of an NCRMD verdict,” Justice Bruce Butler wrote. “The judge had no reason to believe that the process leading to the NCRMD hearing was improper or irregular in any way.”

Justices Richard Goepel and Peter Voith agreed.

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