R. v. Waranuk (T.A.), 2010 YKCA 5

• Judge: Saunders, Bennett and Garson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 18, 2010
• Jurisdiction: Yukon
• Citations: 2010 YKCA 5;(2010), 291 B.C.A.C. 47 (YukCA)

R. v. Waranuk (T.A.) (2010), 291 B.C.A.C. 47 (YukCA);

    492 W.A.C. 47

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JL.028

Her Majesty the Queen (appellant) v. Tim A. Waranuk (respondent)

(08-YU615; 2010 YKCA 5)

Indexed As: R. v. Waranuk (T.A.)

Yukon Court of Appeal

Saunders, Bennett and Garson, JJ.A.

July 22, 2010.

Summary:

The accused was charged with common assault. Faulkner, C.J., of the Territorial Court, held that the self-represented accused was not criminally responsible, on account of mental disorder. The accused appealed.

The Yukon Territory Supreme Court, in a decision reported at [2008] Yukon Cases Uned. (SC) 49, allowed the appeal and ordered a new trial on the basis that the accused was not provided with a lawyer when the order to have him assessed by a psychiatrist was made under s. 672.12 of the Criminal Code. Section 672.24 mandated the appointment of counsel when the Crown sought to have an accused assessed for fitness to stand trial or for mental disorder pursuant to s. 672.12. The Crown sought leave to appeal.

The Yukon Court of Appeal granted leave to appeal, but dismissed the appeal.

Criminal Law - Topic 92.6

Mental disorder - Jurisdiction to order Attorney General to pay for court appointed counsel - The accused was charged with common assault - The trial judge held that the self-represented accused was not criminally responsible, on account of mental disorder - The summary conviction appeal judge ordered a new trial on the basis that the accused was not provided with a lawyer when the order to have him assessed by a psychiatrist was made under s. 672.12 of the Criminal Code - Section 672.24 mandated the appointment of counsel when the Crown sought to have an accused assessed for fitness to stand trial or for mental disorder pursuant to s. 672.12 - The Yukon Court of Appeal stated that s. 672.24 should be construed broadly and to the benefit of the accused - The summary conviction appeal judge was correct in holding that s. 672.24 required the mandatory appointment of counsel for an accused prior to the hearing of an application for an assessment hearing - The protection of those who might be mentally unfit to stand trial was one of the purposes of the mental disorder sections - In order to be consistent with the spirit of the legislation, s. 672.24 could not be limited to fitness hearings, but also had to apply to assessment applications - The failure to appoint counsel for the accused resulted in an unfair trial - The accused was in significant jeopardy when the assessment order was made - He wanted the opportunity to consult with counsel - Instead, the assessment order and subsequent orders to see a psychiatrist were made without any explanation regarding why they were being made, and over the accused's objection.

Cases Noticed:

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 24].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 26].

Canada (Attorney General) v. Stuart, J., and Savard (1996), 74 B.C.A.C. 81; 121 W.A.C. 81; 106 C.C.C.(3d) 130 (Yuk. C.A.), refd to. [para. 28].

R. v. Fairholm (1990), 60 C.C.C.(3d) 289 (B.C.C.A.), refd to. [para. 31].

R. v. Wride (D.) (1997), 122 Man.R.(2d) 216 (Q.B.), refd to. [para. 37].

R. v. Peepeetch (K.D.) (2003), 238 Sask.R. 14; 305 W.A.C. 14; 2003 SKCA 76, refd to. [para. 41].

R. v. Taylor (D.R.M.) (1992), 59 O.A.C. 43; 77 C.C.C.(3d) 551 (C.A.), refd to. [para. 41].

R. v. B.K.S. (1998), 104 B.C.A.C. 149; 170 W.A.C. 149 (C.A.), refd to. [para. 41].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.11 [para. 18]; sect. 672.24(1) [para. 20].

Authors and Works Noticed:

Bloom, Hy, and Schneider, Richard D., Mental Disorder and the Law: A Primer for Legal and Mental Health Professionals (2006), p. 63 [para. 34].

Counsel:

N. Sinclair, for the appellant;

No appearance by the respondent;

M.A. Reynolds, amicus curiae.

This leave to appeal application and appeal were heard in Whitehorse, Yukon Territory, on May 18, 2010, by Saunders, Bennett and Garson, JJ.A., of the Yukon Court of Appeal. Judgment of the court was delivered in Vancouver, British Columbia, on July 22, 2010, when Bennett, J.A., filed the following written reasons.