Criminal Law

Court orders new trial; NCR hearing lacked procedural fairness

An Ontario Superior Court judge has ordered a new trial for a man who has been detained since he was declared not criminally responsible (NCR) in a “surprise” hearing nearly two years ago.

Toronto criminal lawyer Jill Presser acted as amicus curiae in the appeal for Kevin Reynolds.

In his ruling, Justice Gary T. Trotter said the NCR hearing “was seriously lacking in procedural fairness such that the NCR finding must be set aside.”

In November 2012, Reynolds was found guilty of dangerous driving, assault with a weapon and taking a motor vehicle without consent.

The trial judge had concerns about Reynolds’ fitness and ordered an assessment under s. 21 of Ontario’s Mental Health Act.

In a report, forensic psychologist Dr. Angus McDonald expressed “grounds for concern” about Reynolds’ fitness and his criminal responsibility under s. 16 of the Criminal Code, Trotter said.

In February 2013, Reynolds returned to court. He refused to meet with the special duty counsel who had been assigned to the case the day before.

“When he appeared in court expecting to be sentenced, Mr. Reynolds was confronted with a ‘surprise NCR hearing,’ to use the expression of amicus curiae,” Trotter said.

McDonald testified at the hearing but despite Reynolds’ interjections opposing the doctor’s conclusions, "the evidence of Dr. McDonald was not really challenged, at least not in any effective way," Trotter said.

“Even though no determination on either the fitness or the NCR issue had been made, the trial judge permitted Dr. McDonald to answer questions about the appropriate placement for Mr. Reynolds if either finding were to be made,” Trotter said. “This is a less than ideal way to conduct an NCR hearing, especially given that Mr. Reynolds was barely represented at this proceeding.”

During submissions, special duty counsel “conceded” that Reynolds was NCR, Trotter said.

“Consequently, within roughly an hour from the start of this surprise NCR hearing, Mr. Reynolds was found NCR and was on his way to a maximum security hospital,” Trotter said. “He remains in hospital to this day, almost two years after the fact.”

The new trial will be limited to whether Reynolds was NCR at the time he committed the offences, says the judge’s ruling.

Reynolds appealed the NCR finding on the basis that the original hearing lacked procedural fairness and amounted to a miscarriage of justice, Trotter said.

"Ms. Presser was appointed as amicus curiae and has rendered excellent assistance by preparing written materials and making very helpful and balanced oral submissions in support of a new NCR hearing," Trotter said.

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