COURT OF APPEAL FOR ONTARIO
ARMSTRONG, LAFORME and JURIANSZ JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
JAMES DOUGLAS ROBERTSON
Appellant
Daniel Brodsky for the appellant
Mara Greene for the Intervener
Grace Choi for the respondent
Heard: June 18, 2007
On appeal from the judgment of Justice Peter A. Grossi of the Superior Court of Justice dated October 9, 2003
Background
1After a trial before judge and jury, the appellant was found guilty on October 9, 2003 of criminal harassment and invitation to sexual touching. The jury was discharged and his sentencing was adjourned to permit the Crown to bring an application to have him declared a dangerous offender. Subsequently, approximately two years later, the question arose whether he was not criminally responsible due to mental disorder (“NCRMD”) at the time of the offences. The trial judge determined he had no jurisdiction to determine that question and the matter has come before us.
2After he was found guilty, the appellant was remanded from time to time to facilitate three court ordered assessments. In the first, dated February 16, 2005, Dr. Ramshaw of the Center for Addiction and Mental Health gave the opinion that the appellant met or surpassed the threshold for a finding of dangerous offender status. She found his history was consistent with a diagnosis of “Paraphilia Not Otherwise specified with sexual coercion, rape fantasies, stalking behaviour, and deviant phallometric testing and more recently a more covert gravitation toward younger females, complicated by psychopathy.” Dr. Ramshaw did not address whether he was NCRMD. Dr. Ramshaw did note she could not rule out a psychotic disorder not otherwise specified though “the psychotic like experiences and behaviour of the appellant could be a consequence of his severe personality structure with perceived injustices and a righteous stance.”
3The second report, dated December 12, 2005, was by Dr. Federoff of the Royal Ottawa Hospital. He expressed the opinion that the appellant was NCRMD at the time of the offences because he suffers from a delusional disorder, mixed type. He suggested that he could be treated with antipsychotic medication and could be managed in a medium secure treatment facility. The appellant agreed to begin treatment with the antipsychotic medication, olanzapine.
4At the request of the Crown, the court ordered another assessment by Dr. Woodside also of the Center for Addiction and Mental Health. His report dated March 20, 2006, set out Dr. Woodside’s belief that the appellant would have been able to appreciate the nature and quality of his acts and omissions at the time of the offences, though Dr. Woodside cautioned he could not rule out the possibility that the appellant did have a defence of NCRMD available to him. Dr. Woodside’s opinion was based largely on a review of the file materials as the appellant declined to participate in his assessment.
5The appellant was then unrepresented and an amicus curiae was appointed. The appellant brought an application before the trial judge on June 7, 2006 asking the trial judge to make the finding that the appellant was NCR. The amicus curiae’s position was that, though the jury had been discharged, the trial judge retained jurisdiction to enter an NCR verdict in order to avoid an infringement of the appellant’s Charter rights. The Crown’s position was that, though “all parties are agreeable to a finding of Not Criminally Responsible” such finding could only be made by the Court of Appeal as the trial judge’s remaining jurisdiction was limited to sentencing the appellant because the jury had been discharged.
6In the trial judge’s ruling on June 14, 2006, he recognized that the conviction of a person who is not criminally responsible at the time of the offence would violate the Charter. However, he noted that it had not yet been proved that the appellant was NCRMD. He concluded he had no jurisdiction to consider whether the appellant was NCRMD some three years after the convictions had been registered and the jury discharged. He pointed out that s. 686(1) (d) of the Criminal Code permits an accused to appeal against a conviction, and the Court of Appeal may set aside the conviction and find the appellant NCRMD. Consequently, he dismissed the application and ruled that the sentencing of the appellant would proceed absent a substituted verdict or an order for new trial by the Court of Appeal.
7The appellant appealed to this court. The Criminal Lawyers Association of Ontario (“CLA”) intervened in the appeal to argue that the trial judge had jurisdiction to address the question whether the appellant was NCRMD after the jury had been dismissed. On the appeal, the Crown resiled from the position it took before the trial judge and argued that the evidence did not establish that the appellant was NCR. The Crown maintained its position that, after the jury was dismissed, the trial judge no longer had jurisdiction to consider whether the appellant was NCRMD.
Discussion
8While no conviction is apparent on the record, the failure of the trial judge to formally enter convictions is a mere oversight. It is obvious he intended to register convictions, and on the application he proceeded on the basis that he had done so. We, too, proceed on that basis.
9The appellant tendered a substantial amount of fresh evidence, consisting of the doctors’ reports, their cross examinations and related material.
10The Crown concedes that the fresh evidence meets the first three of the four requirements of the test in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759. However, the Crown submits that the fresh evidence, if believed and taken with the other evidence adduced at trial, could not reasonably be expected to have affected the result. The Crown submits we should find that the fresh evidence does not establish that the appellant is NCRMD.
11I do not agree.
12Dr. Federoff’s opinion that the appellant is suffering from a delusional disorder that would support a defence of NCRMD is based on an in-hospital evaluation conducted at the Royal Ottawa Hospital from September 3, 2005 to November 5, 2005. The evaluation was a comprehensive assessment with which the appellant cooperated fully. He was examined by a multidisciplinary team of mental health professionals including psychiatrists, psychologists and social workers. The assessment included biological laboratory testing, a neuropsychological consult, a sleep deprived EEG analysis, an MRI of the appellant’s brain and a full Sexual Behaviour Clinic assessment, and phallometric and actuarial tests. It is cogent and deserving of weight.
13The Crown argues that Dr. Federoff did not adequately consider the appellant’s behaviour in committing the offences. This behaviour the Crown submits provides reason to doubt Dr. Federoff’s opinion and prefer that of Dr. Woodside. However, the appellant declined to participate in the assessment by Dr. Woodside. Dr. Woodside did not himself examine the appellant, did not appreciate he was on antipsychotic medication, and indicated he could not rule out the possibility of the appellant being NCRMD. Nevertheless, he makes some cogent observations.
14In my view, the fresh evidence could reasonably be expected to have affected the result had it been introduced before the jury. Moreover, a trial judge is much better positioned to decide the question as the doctors could be called to explain their opinions. Consequently I would order a new trial.
15I would allow the appeal, set aside the convictions, and direct a new trial.
“R.G. Juriansz J.A.”
“I agree Robert P. Armstrong J.A.”
“I agree H.S. LaForme J.A.”
RELEASED: June 25, 2007