COURT OF APPEAL FOR ONTARIO
FELDMAN, SHARPE and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
GIUSEPPE PIETRANGELO
Appellant
Giuseppe Pietrangelo in person
Alison Wheeler for the respondent
Michael W. Lacy as amicus curiae
Heard: April 30, 2008
On appeal from the conviction entered by Justice Peter B. Hambly of the Superior Court of Justice, sitting with a jury, dated February 28, 2006, and the sentence dated June 16, 2006, with reasons reported at [2006] O.J. No. 3068.
1This appeal raises a difficult issue in relation to the Crown’s right to seek a verdict of not criminally responsible on account of mental disorder (“NCRMD”). The history of the case is not something of which the administration of justice can be proud. The appellant has been in custody for almost ten years. Throughout that ten-year period, he has been the subject of many psychiatric assessments and embroiled in a complex series of trials, mistrials, and appeals, none of which have brought this matter to a satisfactory resolution. The appellant has, for the most part, refused legal assistance. He has consistently refused to raise the NCRMD defence despite evidence that would support it. Due to a misunderstanding of the law, the trial Crown failed to ask for a verdict of NCRMD. It is because the appellant’s appeal questions the conviction that the Crown can now ask us to impose a verdict of NCRMD. As a result, we must consider the appropriateness of imposing a declaration of NCRMD against the appellant’s wishes and after he has served a significant portion of his maximum fourteen-year sentence.
2The appellant was convicted of attempted murder and assault with a weapon in 1999 and sentenced in 2000 to twenty-five years imprisonment. In 2001, this court heard his appeal from conviction. After ordering a psychiatric assessment, this court allowed the appeal on the ground that the appellant was not fit to stand trial, as well as on the ground that the appellant had been denied his right to challenge jurors for cause. The appellant was found unfit to stand trial in 2002 by a trial judge, but in 2003, this court allowed an appeal from that finding on the ground that the issue of fitness had to be determined by a jury. Two attempts to retry the case then resulted in mistrials.
3The retrial was finally completed in 2006. The appellant refused to advance the NCRMD defence. The Crown had in its possession evidence to support an NCRMD verdict but failed to advance the issue because of the trial Crown’s apparent misunderstanding of the applicable law. The appellant was acquitted of attempted murder but convicted of aggravated assault and assault with a weapon, and sentenced to the maximum sentence of fourteen years for aggravated assault, and two years concurrent for assault with a weapon, with no credit given for pre-trial custody.
4The appellant appeals both conviction and sentence. The Crown concedes that the appellant should have been given credit for the nearly eight years he spent in pre-trial custody and that his sentence should therefore be reduced to one of six years, leaving him four years to serve. However, his conviction appeal opens the door for the Crown to seek to introduce as fresh evidence the psychiatric reports from experts who examined the appellant immediately after his first trial in 2000, and to ask us to find the appellant NCRMD. The appellant insists that he be given a new trial, while amicus curiae submits that the appropriate order is to admit the Crown’s “fresh” evidence and set aside the convictions, but stay all other proceedings on these charges on the grounds of abuse of process. With respect to the sentence appeal, the appellant, supported by amicus, argues that he should be given two-for-one credit for pre-trial custody, which would effectively mean that his entire fourteen year sentence has been served.
5For the following reasons, I would grant the Crown’s request to introduce fresh evidence, set aside the appellant’s conviction, and substitute a verdict of NCRMD. In my view, the appellant’s grounds for challenging his conviction lack merit. I am unable to accept the thoughtful and helpful submission of amicus that we should permit the Crown to introduce its fresh evidence of NCRMD, yet stay further proceedings on the grounds that they would constitute an abuse of process. There is no evidence of malice or intentional misconduct on the part of the Crown. Any failings on the part of the Crown in this matter have been inadvertent and exacerbated by the difficulties involved in dealing with a seriously mentally ill defendant.
6The only basis for interfering with the appellant’s conviction arises from the evidence that the appellant is NCRMD. On the well-established principle that it can never be in a defendant’s interest to be wrongly convicted, I would hold that it is not an abuse of process for the Crown to seek to reverse a wrongful conviction by substituting a verdict of NCRMD. Furthermore, given the significant public interest reasons in favour of permitting a NCRMD verdict to take its full effect in the present circumstances, this case is not among those clearest of cases that would justify imposing a stay.
FACTS
7The appellant was charged in September 1998 with attempted murder and assault with a weapon for using a specially weighted cane to severely beat Wayne Thomson, then the Mayor of Niagara Falls, and for threatening Dean Iorfida, the aide who helped the Mayor escape. Mayor Thomson suffered serious physical and psychological injuries as a result of the attack.
8The appellant had no prior criminal record. The charges against him arose from conduct prompted by his delusional belief in a conspiracy surrounding his father’s death and the disposition of his father’s estate. He was arrested shortly after the attack and gave a statement to the police explaining and justifying his vicious assault on the Mayor on the ground that a number of parties, including the Mayor, the appellant’s siblings, organized crime, and the courts, had conspired to murder his father and to subvert his father’s will. For much of the time from his arrest to the present, the appellant has insisted on representing himself in the plethora of legal proceedings he has faced, and has either had an antagonistic relationship or entirely refused to communicate with counsel and amicus appointed to represent or assist him and the court, as he believes that lawyers are part of the conspiracy oppressing him.
9The appellant’s father died in 1990 at the age of eighty-four from natural causes. He had previously divided real estate he owned among several of his children, including the appellant, but had not attempted to sever the land into lots or to comply with zoning laws. Following the appellant’s father’s death, the probate court accordingly adjusted the disposition of the property to take the zoning laws into account. The Niagara Falls municipal council – then presided over by Mayor Thomson – approved this adjustment. All of the Pietrangelo children supported these proceedings, with the exception of the appellant. The appellant’s brother Gino, executor of the estate, obtained a court order on September 1, 1998, giving him exclusive possession of the property and permitting him to effect a sale. On the same day, the appellant visited Mayor Thomson at his offices and proceeded to attack him and his assistant. The appellant was arrested shortly thereafter.
1. Procedural History
(i) Preliminary Inquiry
10At the time of the preliminary inquiry, the appellant’s psychological condition was evaluated by Dr. G.A. Chaimowitz, Clinical Director and Forensic Psychiatrist at the Hamilton Psychiatric Hospital, who provided a report to the court indicating that the appellant was afflicted with a major mental disorder, most likely delusional disorder or paranoid schizophrenia. Dr. Chaimowitz expressed the opinion that the appellant would be unable to participate meaningfully in a criminal trial on account of his delusions, as he was “unaware of the real issues facing him and show[ed] no insight into his own particular situation with respect to the court room.” Counsel was appointed to assist the appellant on the fitness hearing. Dr. Chaimowitz testified that he believed that the appellant suffered from delusional disorder and non-bizarre fixed false beliefs; in other words, beliefs in facts that can occur in real life but that are false and impervious to reason. He also testified that the appellant’s attack on the mayor was driven by his delusional beliefs and that those beliefs prevented him from understanding the purpose of the criminal proceedings against him, which he perceived as a device that would permit him to uncover and expose the “conspiracy.” The Crown argued that the appellant was unfit, while the appellant submitted that he was fit. The preliminary inquiry judge found that the appellant was fit and committed him for trial.
(ii) First Trial
11The appellant’s first trial took place in September 1999 before a Superior Court judge and jury. The appellant insisted on representing himself, but did not cross-examine any of the Crown’s witnesses, call any defence witnesses, or make closing submissions. As this court later observed on appeal, “[t]he trial was a difficult one … and throughout the trial [the appellant] displayed substantial signs of significant mental illness”: R. v. Pietrangelo (2001), 2001 24058 (ON CA), 152 C.C.C. (3d) 475 at para. 3. The jury found the appellant guilty on both counts.
12After the verdict was received and the convictions were entered, but prior to sentencing, the trial judge ordered a psychiatric assessment. In January 2000, Dr. Chaimowitz rendered an opinion confirming the diagnosis of delusional disorder and indicating that although the appellant appeared to understand the nature of the charges and the consequences of the trial proceedings, he remained delusional. He had agreed to take antipsychotic medication. However, disorders of this kind are slow to respond to treatment and medications had not alleviated the appellant’s delusions.
13Dr. Chaimowitz also stated that the appellant’s delusional disorder had prevented him from knowing that his attack on the Mayor was morally wrong: the “righting” of his father’s will was the only important issue for him.
14Dr. Chaimowitz subsequently provided the Crown with a clarifying report confirming his opinion that the appellant was not criminally responsible for the offences at issue:
Mr. Pietrangelo appeared to be suffering from his Delusional Disorder at the time of the offence and was clearly not perceiving reality in the way that a non-psychotic person would. … [A]lthough Mr. Pietrangelo would have known what he was doing when he striking the victim, his overriding convictions as part of his delusions certainly did not allow him to appreciate the full scope and the consequences of his actions. … Mr. Pietrangelo felt persecuted by a conspiracy that involved infiltration of international organized crime. Striking the Mayor, in his mind, was not striking the Mayor as a non-delusional person would. Mr. Pietrangelo appeared to … believe that at the time the Mayor was part of that conspiracy and thus he did not appreciate the objective circumstances surrounding the situation. His raising of the cane and striking the victim followed naturally from his delusional views of his father’s will.
… Mr. Pietrangelo had a belief system that overrode any sense that he was morally wrong in whatever he did to “right” his father’s will. The of legal wrongfulness is a little different. He is now able to say that Assault and Attempted Murder [are] illegal, but has at times referred to “no higher law than honoring your father’s will”. Thus, in my opinion, he was not aware of the moral wrongfulness and may have not have been aware of the legal wrongfulness [at] the time of the act.
Thus, in my opinion, it may be interpreted that although he knew that he was striking someone he did not appreciate the nature and quality of his actions nor know that this was wrong. In his mind, the supporting and defending of his father’s will superseded any other laws.
15Crown counsel provided the psychiatric report to the trial judge, stating that he felt that he had an obligation to raise the NCRMD issue, but acknowledged that the court might not have the jurisdiction to consider it, as the jury had been discharged.
16By this point, appellant had counsel to represent him on the sentencing hearing and on the appeal that followed. Defence counsel agreed that it was too late for the trial judge to re-open the verdict to consider the NCRMD issue because the jury had been discharged, but argued that the proper remedy was a mistrial. The trial judge agreed that he was functus officio with regard to the verdict and without jurisdiction to deal with the NCRMD issue. He declined, however, to grant defence counsel’s request to declare a mistrial, and suggested that the parties could raise this issue on appeal. The trial judge also offered to grant an adjournment to permit both parties to call further psychiatric evidence to create a record for the Court of Appeal. Defence counsel declined this offer, stating that it had disclaimed any reliance on a defence of NCRMD and that it would therefore be inappropriate to call evidence on this point.
17As reported at [2000] O.J. No. 5705, the trial judge then sentenced the appellant to twenty-five years for attempted murder (after giving two-for-one credit for eighteen months’ pre-trial custody) and two years concurrent for assault with a weapon.
(iii) First Appeal
18The appellant, still represented by counsel, appealed his convictions and sentence, and the Crown in response raised the issue of the appellant’s fitness to stand trial. The Crown also requested the substitution of a verdict of NCRMD as an alternative ground of relief. Prior to oral argument, this court ordered a psychiatric assessment at the Crown’s request.
19In October 2000, Dr. John Bradford, Director of Forensic Service at the Royal Ottawa Hospital, provided a report concluding that the appellant suffered from a major mental disorder, specifically a delusional disorder of the persecutory type. The report stated that the appellant had not been fit at trial and that he remained unfit, as his delusional disorder interfered with his ability to understand the purpose of the criminal proceedings. According to Dr. Bradford, the appellant did not perceive their purpose to be to criminally prosecute him for attempted murder, but rather as affording him the opportunity to expose the conspiracy and corruption that prevented the execution of his father’s “true will”.
20Dr. Bradford also expressed the view that although the appellant was able to appreciate the physical nature and quality of his actions, and that his actions were legally wrong, his delusional disorder led him to believe that his attack on the Mayor was morally justified. Dr. Bradford concluded that this brought the appellant within the s. 16(1) defence of NCRMD:
It is therefore my opinion that Mr. Pietrangelo had a strong delusional belief that his behaviour in attacking the Mayor was morally justified. He was suffering from a mental disorder (Delusional Disorder, persecutory type) that deprived him of a rational perception or choice about whether his attack on the Mayor was right or wrong.
21In March 2001, this court set aside the appellant’s convictions on two grounds: see 2001 24058 (ON CA), 152 C.C.C. (3d) 475. The court accepted the appellant’s argument that he had been denied his statutory right to challenge jurors for cause. The court also agreed with the Crown’s argument that the appellant was unfit to stand trial. The court found that the trial judge had erred in proceeding with the trial in the face of the appellant’s abnormal behaviour, which indicated that he did not understand the nature and object of the proceedings. The trial judge should have directed that the issue of the appellant’s fitness be tried and appointed counsel to represent the appellant pursuant to s. 672.24 of the Criminal Code. This court’s opinion stated, at para.16, that Dr. Bradford’s report made it “clear in unequivocal terms that the appellant is presently unfit to stand trial, unable to understand the nature and object of the proceedings and in need of treatment with anti-psychotic medication in order to be rendered fit.” The appellant’s counsel, following the appellant’s instructions, opposed the Crown’s request to find the appellant unfit, but the court made a finding of unfitness and remitted the matter to the Ontario Review Board (“ORB”) for disposition.
(iv) Ontario Review Board
22After conducting a hearing in March 2001 at which the appellant was represented by counsel, the ORB found that he remained unfit to stand trial on account of his mental disorder, as he remained unable to understand the nature and object of the court proceedings. The ORB found that the appellant remained “deeply troubled by his fixed delusional ideation”, and that his inability “to separate the issues surrounding his criminal charges and his father’s will represent a considerable challenge to his achieving a rudimentary factual understanding of his legal predicament.”
23Initially, the appellant’s stay at the Regional Mental Health Care Centre, St. Thomas did not significantly improve his condition. He refused treatment and his treatment team in November 2001 continued to be of the view that he was unfit to stand trial. However, in January 2002, the ORB reviewed the matter and, despite a rather negative psychiatric report from Dr. Sam Swaminath, found the appellant to be fit and directed that the matter be sent back to court for a fitness hearing.
(v) Fitness hearing and appeal
24In June 2002, another trial judge, sitting without a jury, found the appellant unfit to stand trial. The appellant refused legal representation, but the court appointed counsel. The trial judge, relying on the evidence of Dr. Chaimowitz, Dr. Swaminath, and another report from Dr. J. Ellis, Clinical Leader at the Regional Mental Health Care Centre, St. Thomas, found the appellant unfit.
25The appellant successfully appealed that ruling to this court in May 2003: see [2003] O.J. No. 2035. The appellant was represented by counsel on the appeal and the Crown conceded that as the appellant had elected trial by a judge and jury, pursuant to ss. 672.26 of the Criminal Code, the issue of fitness should have been tried by a jury. The court also set aside the ORB’s July 2002 determination, and remitted the matter to the trial court for a proper determination.
(vi) Further assessments
26In October 2003, Dr. Simon Chiu of the Regional Health Centre, St. Thomas, provided the Crown with an opinion that the appellant was now fit to stand trial, although he warned that the stress of a trial could cause the appellant to deteriorate. Dr. Chiu found that the appellant continued to suffer from a delusional disorder and that he refused medication. However he did understand the nature of the charges, his right to legal counsel, the role of the judge, defence counsel, the Crown attorney, and the jury, as well as his options of pleading guilty or not guilty and the consequences thereof. Dr. Chiu stated that although the appellant’s delusional disorder had interfered with his rational capacity to meet the fitness criteria in the past, the appellant had compartmentalized his delusional ideas from his capacity to appreciate the nature and ramifications of the charges against him.
(vii) Mistrials
27In November 2003, an attempt was made to start another trial. The appellant was represented by counsel appointed to represent him pursuant to s. 672.24 of the Criminal Code. The appellant insisted upon representing himself and refused to deal with his appointed counsel. Jury selection commenced, but because of the appellant’s vehement objection to his appointed counsel, the trial judge declared a mistrial and directed a fitness assessment pursuant to s. 672.12.
28Dr. Chiu provided further reports in December 2003 and March 2004, confirming his earlier opinion that the appellant was fit, but repeating his warning that the appellant could deteriorate under the stress of a trial.
29Trial proceedings again commenced in March 2004 before a Superior Court judge and jury. Over the appellant’s objection, he was represented by court-appointed counsel. The jury heard Dr. Chiu’s evidence and found the appellant fit to stand trial. The trial proper was tentatively scheduled for October 2004 to allow the appellant the opportunity to subpoena witnesses. For reasons that are not clear from the record before us, the trial did not in fact commence until June 2005, when yet another mistrial occurred.
30At that point, the trial judge ordered another psychiatric assessment. In August 2005, Dr. Chaimowitz reported that the appellant remained “markedly delusional and his delusions are sufficient that they may interfere with his ability to focus on the trial he faces.” However, as the appellant appeared to be capable of grasping the significance of the criminal trial process and of distinguishing the civil wrong he alleged from the criminal proceedings against him, Dr. Chaimowitz stated that the appellant was fit to stand trial, although he warned that the appellant “may run into difficulties if he was to attempt to conduct a defence in a trial for any extended period of time.”
(viii) Retrial: 2006
31The trial that gives rise to this appeal commenced in February 2006, before a Superior Court judge and jury. The appellant represented himself and again declined to cross-examine or call witnesses, or to give a closing address. Neither the appellant nor the Crown raised the NCRMD issue. Despite the appellant’s non-participation, the trial judge instructed the jury that the Crown was required to prove an intention to kill to make out the offence of attempted murder, and that the jury might conclude that the appellant lacked that intention. The jury found the appellant not guilty of attempted murder, but guilty of aggravated assault against the Mayor, and assault with a weapon against the Mayor’s assistant.
32In April 2006, following the conviction, Dr. Chaimowitz and his colleague Dr. Irina Skladman provided the court with another report for the purpose of sentencing. They indicated that they found nothing to change or dispute the opinion Dr. Chaimowitz had rendered in 2000 that the appellant at the time of the offence did not appreciate the nature and quality of his acts and did not know that they were morally wrong. In their view, the appellant’s delusional order “is of such intensity that it interferes with his ability to appreciate the wrongfulness of his behaviour that, to his delusional point of view, was justified.” They also expressed the view that the appellant had no insight into his illness or need for treatment, and that he was “extremely unlikely” to take medication to ameliorate his major mental disorder, for which he was not at that time receiving treatment. They stated that although the appellant’s delusional disorder did not affect his general functioning and intelligence, “his logical reasoning is grossly impaired with respect to his appreciation of his current legal situation.”
33With respect to the risk posed by the appellant, their opinion was that although he was by nature a pro-social and altruistic individual, his delusional ideas were fixed and he might act out in anger if frustrated or stymied in his quest to right the wrongs that he perceived. They concluded as follows with respect to his risk of further violence:
We do not see him planning an act of vengeance, but can see acts of violence as a last resort. Unfortunately his delusions are fixed and the likelihood of him giving up his quest is low. Risk will gradually increase as time proceeds and as his frustration grows. Individuals who are perceived as standing in his way to achieve the “justice” he seeks will be ultimately at risk of violence.
34In his reasons for sentence, the trial judge reviewed the long list of psychiatric reports that had assessed the appellant, and noted the opinions of Drs. Chaimowitz and Bradford to the effect that the appellant had a NCRMD defence. He relied on the evidence from Dr. Chaimowitz as to the appellant’s risk of further violence. The trial judge also noted that Dr. Chaimowitz had testified at the sentencing hearing that the appellant could act violently against anyone whom he perceived as standing in the way of righting his father’s will and that Mr. Thomson would be at an elevated state of risk if the appellant were released.
35The trial judge concluded as follows:
The difficulty is that Mr. Pietrangelo suffers from the same delusional disorder that drove him to commit this offense. It is unabated. It is impervious to treatment. There is no prospect for rehabilitation. Mr. Pietrangelo is unrepentant. He has no remorse. In fact, he continues to be of the belief that he acted appropriately in assaulting the mayor. He remains a danger if he is released to anyone whom he perceives as preventing him from righting his father’s will.
36The trial judge imposed the maximum sentence of fourteen years imprisonment for aggravated assault and two years concurrent for assault with a weapon, giving no credit for pre-trial custody.
2. The Present Appeal
37The appellant appeals both his convictions and sentence. The appeal has proceeded as an inmate appeal, as the appellant has insisted on representing himself. His main submission is that he was denied the opportunity to properly access materials he needed for his trial. He also submits that he was denied his right to subpoena and call witnesses.
38The Crown raises the issue of NCRMD and seeks to introduce evidence from Drs. Bradford and Chaimowitz to support the submission that the appellant should be found NCRMD.
39This court appointed amicus curiae, but the appellant refused to communicate with that counsel and asserted that he had a conflict of interest. Mr. Lacy was then appointed to assist the court. The appellant has also refused to communicate with Mr. Lacy, but Mr. Lacy has still been able to provide the court with invaluable assistance, both during the cross-examinations of the experts and on the oral argument of this appeal.
ISSUES
40The following issues arise:
Was the appellant denied the opportunity to access the materials he needed for his trial or denied the right to subpoena witnesses?
Should this court admit the Crown’s proposed fresh evidence?
If the fresh evidence is admitted, what is the appropriate order or remedy?
Did the trial judge err by refusing to give the appellant any credit for pre-trial custody?
Issue 1. Was the appellant denied the opportunity to access the materials he needed for his trial or denied the right to subpoena witnesses?
41I see no merit in the appellant’s submissions that he was denied access to material he needed for his trial or that he was not allowed to subpoena witnesses. Any difficulties the appellant encountered in accessing his materials did not go beyond the usual logistical problems involved in providing a prisoner accused of a serious violent crime with access to twenty or so boxes of materials. The trial judge dealt with these issues appropriately. He considered the most feasible location for giving the appellant access to the materials. When access at the Niagara Regional Detention Centre was precluded due to space issues, he ordered that the materials be delivered to the courthouse. The trial judge invited the appellant to inform him if the appellant needed more time to prepare for trial. As for the alleged denial of the appellant’s right to call witnesses, the trial judge made significant efforts to explain the requirements for a subpoena and to determine which witnesses the appellant wished to call.
Issue 2. Should this court admit the proposed fresh evidence?
42The Crown invites us to admit as fresh evidence the report of Dr. Chaimowitz, dated January 6, 2000, and that of Dr. Bradford, dated October 20, 2000, together with their examinations and cross-examinations, conducted for the purposes of the Crown’s fresh evidence application.
43I have reviewed the contents of these reports. Both Dr. Chaimowitz and Dr. Bradford are of the opinion that the appellant suffers from a delusional disorder that qualifies as a mental disorder within the meaning of s. 16 of the Criminal Code. The appellant’s mental disorder, in the words of Dr. Chaimowitz, “rendered him incapable of knowing that what he did was wrong”, and, in the words of Dr. Bradford, “deprived him of a rational perception or choice about whether his attack on the Mayor was right or wrong.”
1. The fresh evidence test
44The test for fresh evidence on appeal that was established in R. v. Palmer and Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 at 205 (S.C.C.), was applied to a case where NCRMD evidence was led for the first time on appeal in R. v. Warsing (1998), 1998 775 (SCC), 130 C.C.C. (3d) 259 at para. 50 (S.C.C.):
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[Citations omitted.]
(i) Due diligence
45The evidence of Drs. Chaimowitz and Bradford was clearly available at the time of trial in 2006. Indeed, both reports were actually filed as exhibits at trial for the purpose of sentencing. These opinions have been available to both the Crown and the appellant since the fall of 2000, less than a year after the appellant was first convicted in 1999. It is, to say the least, highly regrettable that this case has proceeded through trials, mistrials, and appeals for almost ten years without adequate consideration being given to the impact of this evidence on the appellant’s criminal responsibility for his actions.
46This sorry state of affairs flows from an unfortunate combination of the appellant’s mental delusions, his refusal to recognize his illness, his refusal to accept any legal assistance, a fundamental misunderstanding of the law on the part of the Crown at the 2006 trial and, no doubt, shortcomings in the way in which our legal process deals with mentally disordered offenders.
47At trial, the appellant indicated, as he had during the earlier proceedings, his intention to challenge any evidence that suggested that he suffered from a mental disorder. Clearly, however, the appellant did not have the legal right to veto the introduction of evidence tending to establish that the appropriate verdict was NCRMD.
48In R. v. Swain (1991), 1991 104 (SCC), 63 C.C.C. (3d) 481, the Supreme Court of Canada held that giving the Crown an unrestricted right to raise the issue of NCRMD against the wishes of the accused violates the accused’s s. 7 Charter right to control his or her own defence. However, Swain also held that the right to control one’s own defence is not absolute. The court identified two important objectives capable of grounding a s. 1 Charter limitation on the s. 7 right of the accused. First, the court at p. 509 refers to “the principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence.” Second, the court at p. 512 mentions the need to protect “the public from presently dangerous persons requiring hospitalization.”
49In order to satisfy those objectives, the court held that the s. 7 right would be minimally impaired if the common law rule were altered to permit the Crown to raise NCRMD in two situations. First, when the accused puts his or her mental capacity for criminal intent into question, the Crown is entitled to lead evidence of insanity to provide the trier of fact with a complete picture. Second, once the trier of fact has made a finding of guilt, but before a conviction is entered, the Crown may lead evidence to show that the appellant should be found NCRMD. Postponing the introduction of the NCRMD issue until after there has been a finding of guilt preserves the s. 7 right of the accused to make fundamental decisions about the conduct of his or her defence against a criminal charge. However, once there has been a finding of guilt, the Supreme Court held that it is a reasonable limitation on the rights of the accused to permit the Crown to introduce the issue of NCRMD to satisfy the dual objectives of preventing the justice system from labelling the insane as criminals, and protecting the public from individuals who pose a risk to society and who require treatment.
50Unfortunately, counsel representing the Crown at the appellant’s retrial appears to have misread Swain and to have been unaware of the Crown’s right to lead evidence of NCRMD after the jury has returned its guilty verdict. I note here that there is no suggestion that the trial Crown deliberately refrained from raising the NCRMD issue for any tactical reason. Instead, the Crown’s failure to raise the NCRMD issue appears to have entirely arisen from a misreading or misunderstanding of the effect of Swain.
51Mr. Lacy initially took the position that we should refuse to admit the fresh evidence on the ground that the Crown cannot satisfy the due diligence test. However, he quite appropriately modified his position on oral argument on the ground that, as amicus, he could not properly resist the admission of evidence that would demonstrate that the appellant was not criminally responsible for his actions.
52The availability of the evidence of Drs. Chaimowitz and Bradford at the trial does not preclude its admission at this time. The circumstances of this case bring it within the principle that permits the court to admit fresh evidence in criminal cases, which was applied in Warsing, supra at paras. 50–56 – namely, that “failure to meet the due diligence requirement should not override accomplishing a just result”: id. at para. 56 (citation omitted). Similarly, in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516 at para. 47 (Ont. C.A.), Doherty J.A. stated that “evidence which satisfies the Court of appeal that the appellant is innocent must be received on appeal regardless of whether it was available at trial.” See also R. v. B. (G.D.) (2000), 2000 SCC 22, 143 C.C.C. 289 at para. 19 (S.C.C.). The fresh evidence at issue in the present case falls into this category and, despite its availability at trial, its admission is justified to maintain the fundamental principle of the justice system that no individual who was not criminally responsible for his acts when he committed an offence should be saddled with a criminal conviction.
53While this element of the due diligence standard ordinarily arises in relation to evidence offered on appeal by the individual who was convicted at trial, I agree with the respondent that it also applies where the Crown seeks to tender evidence that would exculpate a convicted person. As Lamer C.J.C. explained in Swain, supra at p. 512, the common law rule allowing the Crown to raise the issue of NCRMD
is aimed not only at avoiding the unfair treatment of the accused but at maintaining the integrity of the criminal justice system itself. The accused is not the only person who has an interest in the outcome of the trial; society itself has an interest in ensuring that the system does not incorrectly label insane people as criminals.
54Lamer C.J.C. added at p. 523 that an accused person does not have “a right to be convicted and punished even though he or she does not have the mental capacity for criminal intent”, and that the “principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence …. dispels any suggestion that an accused somehow has a right to be wrongfully convicted.”
(ii) Relevance
55The proposed evidence is to the effect that the appellant suffers from a delusional mental disorder that rendered him incapable of knowing that his act was morally wrong and that plainly bears upon a decisive or potentially decisive issue. The Criminal Code, s. 16 provides that no person is criminally responsible for an act if he or she suffers from “a mental disorder” that renders him or her “incapable of appreciating the nature and quality of the act or … of knowing that it was wrong.” “Wrong” in this context has been held to mean “morally wrong” and not only “legally wrong”: see R. v. Chaulk (1990), 1990 34 (SCC), 62 C.C.C. (3d) 193 at 231–33 (S.C.C.). “[D]elusions which make the accused perceive an act which is wrong as right or justifiable” will ground a s. 16 defence: R. v. Oommen (1994), 1994 101 (SCC), 91 C.C.C. (3d) 8 at 17 (S.C.C.).
(iii) Credible in the sense of being reasonably capable of belief
56The evidence of Drs.Chaimowitz and Bradford meets the standard of being credible in the sense of being reasonably capable of belief. Both witnesses are highly qualified psychiatrists who have personally examined and assessed the appellant. Their diagnosis of delusional disorder is entirely consistent with the appellant’s conduct and behaviour over the past ten years.
(iv) The evidence could reasonably be expected to have affected the result
57The proposed evidence, if accepted, would bring the appellant squarely within s. 16 of the Criminal Code and give rise to a verdict of NCRMD. There can be no doubt that it could reasonably be expected to have affected the result.
(v) Fresh evidence—conclusion
58I conclude, therefore, that the evidence of Drs. Chaimowitz and Bradford should be admitted on this appeal.
Issue 3. If the fresh evidence is admitted, what is the appropriate order or remedy?
59Once the fresh evidence is admitted, what is the appropriate order or remedy?
60The appellant insists that his convictions should be set aside and that he is entitled to a new trial on all issues.
61The respondent’s position is that the convictions cannot stand in the face of the fresh evidence, but that no purpose would be served by ordering a new trial and that the appropriate course is for this court to find that the appellant is NCRMD and enter a verdict to that effect.
62Mr. Lacy, as amicus, presents us with a variety of remedial options. As I have already indicated, he agrees that the convictions cannot be maintained in light of the psychiatric evidence. He submits that we should allow the appeal, set aside the convictions, and make an order staying further proceedings on the ground that it would be an abuse of process to enter an NCRMD verdict at this stage. Alternatively, he submits that we could order a new trial, but in that event, he says we should also stay any further proceedings on the grounds of abuse of process. Finally, but very much as the least desirable remedy from his perspective, Mr. Lacy concedes that it is within our powers to enter a verdict of NCRMD.
63Would permitting the Crown to ask this court to enter an NCRMD verdict amount to an abuse of process? Should we allow the appeal, set aside the convictions, order a new trial, but stay further proceedings on the grounds of abuse of process?
(i) The test for abuse of process
64Courts have a residual discretion, albeit to be exercised “only … in the clearest of cases”, to stay proceedings “[that] would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings”: R. v. Young (1984), 1984 2145 (ON CA), 13 C.C.C. (3d) 1 at 31 (Ont. C.A.). See also R. v. Jewitt (1985), 1985 47 (SCC), 21 C.C.C. (3d) 7 at 14 (S.C.C.); R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 at 33 (S.C.C.).
65In light of this matter’s sorry history, and the fact that the appellant has now served a significant portion of his sentence, I find the abuse of process issue to be the most difficult question involved in this appeal. However, for the following reasons, I have concluded that abuse of process is not made out and that the proper remedy is for this court to enter a verdict of NCRMD.
(ii) No Crown misconduct
66There is no suggestion that the Crown deliberately refrained from raising the NCRMD issue to gain an advantage and no suggestion of Crown misconduct that would ground a finding of abuse of process. However, the absence of Crown misconduct is not fatal to the abuse of process argument. Demonstration of prosecutorial misconduct is not required to give rise to a finding of abuse of process: see R. v. Keyowski (1988), 1988 74 (SCC), 40 C.C.C. (3d) 481 at 483 (S.C.C.). I therefore turn to the question of whether entering a verdict of NCRMD would be unfair to the appellant.
(iii) No unfairness to the appellant
67Would entering a verdict of NCRMD violate “the community’s sense of fair play and decency”? Amicus submits that unfairness to the appellant arises from the fact that the Crown asks for a NCRMD verdict after ten years of legal proceedings and the appellant’s completion of a significant portion of his sentence.
68The Crown’s request for an NCRMD finding at this stage must be placed in context. The Crown did not have evidence of NCRMD until after the jury was discharged at the first trial in 1998. As soon as it had that evidence, the Crown asked the trial judge to consider it, a request that was resisted by the appellant and rejected by the trial judge on the ground that the jury had been discharged. The Crown appropriately proposed a finding of NCRMD as an alternative resolution to the appeal that this court heard in 2001. However, as the court had to set aside the appellant’s conviction and order a new trial on the basis of the trial judge’s denial of his right to challenge jurors for cause and on the basis that he was unfit to stand trial, it could not deal with the NCRMD issue.
69Between the time of that appeal and the commencement of the retrial in 2006, the issue of fitness to stand trial remained unresolved and, accordingly, there was no opportunity for the Crown to raise NCRMD. Pursuant to the Supreme Court of Canada’s decision in Swain, supra, the Crown’s first opportunity to raise the issue of NCRMD following the 2001 appeal was at the 2006 trial after the jury returned its guilty verdict and before a conviction was entered. This appeal has proceeded with appropriate dispatch, taking into consideration the problems posed by the appellant’s attitude towards legal representation and the participation of amicus. Thus, while we must not lose sight of the fact that there has been an unfortunate delay in raising NCRMD, this is an appeal from a trial that took place two years ago at which the issue almost certainly could have been raised.
70Another important fact bearing upon the significance of the ten-year delay and the extent of the prejudice the delay may have caused to the appellant is that the appellant’s fitness was at issue for much of the time from his arrest in 1998 until his trial and conviction in 2006. As a consequence, he was detained in psychiatric facilities for a significant portion of the period, much as he would have been detained had the Crown successfully raised NCRMD in a more timely fashion.
(v) Ordering a new trial and entering a stay
71I now turn to the issue of whether we should order a new trial and enter a stay. The Criminal Code, s. 686(1)(d), “clearly contemplates a court of appeal making a determination on the issue of NCRMD”, and “[i]t is only in cases where the facts are complex and the court concludes that further evidence is required that a new trial would be ordered”: Warsing, supra at paras. 64, 65. In R. v. M. (I.E.) (2003), 2003 57382 (ON CA), 173 C.C.C. (3d) 515 at para. 46, this court stated that when the issue is raised for the first time on appeal and the appeal succeeds, making an NCRMD finding – rather than ordering a new trial – is the “presumptive course”.
72I do not believe that the interests of justice would be served by ordering a new trial. There is no doubt on the record that, if not for the issue of NCRMD, the appellant would be guilty of aggravated assault and assault with a weapon. Before us, the appellant expressed a strong wish to have a new trial, but I see no hope that if a new trial were ordered, the appellant would be willing or able to focus on the only outstanding legal issue – namely, the issue of NCRMD. There is no evidence to challenge the psychiatric evidence that brings the appellant squarely within the NCRMD defence. The appellant and amicus have been accorded full opportunity to cross-examine Drs. Chaimowitz and Bradford. The only psychiatric evidence before this court remains unshaken.
73Given the protracted history of these proceedings, the nature of the evidence now before us and the manner in which the appellant has conducted himself throughout, I can see no realistic prospect that a different picture would emerge on the NCRMD issue if he were accorded a new trial.
74I am therefore not persuaded that we should circumvent what appears to be an inevitable result by allowing the appeal, declining to make an NCRMD finding, but ordering a new trial. The evidence establishes that the appellant is NCRMD and we should squarely face the issue of whether an NCRMD verdict at this stage would amount to an abuse of process.
75We must not lose sight of one basic fact: there is only one ground upon which we can and must set aside the convictions; namely, there is compelling evidence that shows that the appellant is NCRMD. However unfortunate it may be that the justice system has taken ten years to arrive at this result, in the circumstances of this case, I do not think it would be appropriate for us, under the guise of the doctrine of abuse of process, to attempt to avoid the legal consequences that flow from admitting convincing evidence in favour of a verdict of NCRMD.
(iv) Public interest
76An important aspect of the abuse of process doctrine applicable to the present case is that the doctrine does not rest only on the protection of the interest of an accused in a fair trial. It “evokes as well the public interest in a fair and just trial process and the proper administration of justice”: R. v. Scott (1990), 1990 27 (SCC), 61 C.C.C. (3d) 300 at 323 (S.C.C.) (McLachlin J. (dissenting in the result); R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at para. 50; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 35. Fairness to the appellant is an important ingredient, but it is not the only ingredient and it must be balanced with the broader societal interest.
77Turning to the public interests at stake, there appear to be several factors that militate against ordering a stay on grounds of abuse of process.
78The law recognizes that it may be in the public interest to permit the Crown to raise the issue of NCRMD for the first time on an appeal by the accused. There is ample authority for the proposition that the issue of NCRMD can be raised on such an appeal, over the objections of the accused, by the Crown or by an appellate court on its own motion: see R. v. Irwin (1977), 1977 2071 (ON CA), 36 C.C.C. (2d) 1 (Ont. C.A.); R. v. Ta (2002), 2002 44898 (ON CA), 164 C.C.C. (3d) 97 (Ont. C.A.).
79Entering an NCRMD finding on the evidence now before this court would, in my opinion, serve three important purposes deeply rooted in our law, all of which must be balanced with the appellant’s interests and individual rights. Those purposes are: (1) maintaining the principle of fundamental justice that the criminal justice system not convict a person who was insane at the time he or she committed an offence; (2) protecting the public from presently dangerous persons requiring hospitalization; and (3) recognizing the public interest of having serious criminal charges resolved on the merits and with finality.
80The first two principles are drawn from Swain, supra, and have already been discussed. As I have explained, the uncontradicted psychiatric evidence demonstrates that, under the Criminal Code, the appellant should not be labelled as a criminal on account of his mental disorder. The trial judge found in his reasons for sentence that the appellant continues to pose a significant risk to public safety and, in particular, to those individuals he perceives to be members of the conspiracy to subvert his father’s “true will”. There is compelling evidence to support that finding.
81The statements of Rosenberg J.A. in Ta, supra at para. 45 – where this court on its own initiative ordered psychiatric reports and imposed a verdict of NCRMD on an appellant who had been in custody for seven years and refused to raise the issue of insanity – apply with equal force to the present case:
Imposing the NCRMD verdict at this stage is necessary to avoid the continued improper conviction of the appellant and maintain the integrity of the criminal justice system. It is also necessary to ensure protection of the public.
82In my view, an order motivated by these same considerations would not amount to an abuse of process in the circumstances of this case.
(vi) Civil committal
83I recognize that if a stay were entered, the interest of protection of the public could be addressed through the process of civil committal pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. Dr. Bradford testified that the appellant was “most likely” certifiable under that legislation. However, Dr. Bradford also testified that the civil committal procedure works best with individuals who suffer from acute psychiatric conditions that are relatively easy to treat and who require relatively short periods of institutionalization. In Dr. Bradford’s view, the appellant does not fit in this category, as his condition is difficult to treat and he is likely to require a relatively longer period of institutionalization. It was Dr. Bradford’s view that in the appellant’s case, an NCRMD disposition that would place the appellant under the ORB regime was more appropriate both for the appellant and for the public.
84I agree with Dr. Bradford’s assessment. Given the nature of the appellant’s illness, his poor prospects for successful treatment, and the risk he poses to the public, he is likely to be held for a significant period of time regardless of whether he is civilly committed or designated NCRMD. The ORB regime is designed to deal with dangerous individuals who have committed violent acts because of chronic and severe mental illness, and specifically addresses the need to balance the rights of the individual against the need to protect the public. It is not at all clear that in the circumstances of this case, such a balance could be as appropriately achieved under the Mental Heath Act’s civil committal regime.
(vii) Abuse of process: conclusion
85I conclude, therefore, that while it is regrettable that it is only at this late stage in the process that the issue of an NCRMD verdict arises, the following features of this case, when taken together, speak strongly against ordering a stay of proceedings following the admission of the fresh evidence:
the uncontradicted evidence that the appellant is NCRMD;
the clear statutory power of this court to enter an NCRMD verdict;
the absence of Crown misconduct;
the absence of unfairness in the proceedings to date;
the limited prejudice the delay has caused to the appellant;
the evidence that the appellant continues to pose a risk to public safety on account of a serious mental disorder;
the preferability of dealing with the risk to public safety through the NCRMD regime rather than by way of civil committal.
In view of all of these considerations, it cannot be said that the circumstances of this case meet “the clearest of cases” standard that would justify imposing a stay and preventing the law from taking its usual course upon the admission of the fresh evidence – namely entering a verdict of NCRMD and allowing that verdict to take its full legal effect.
Issue 4. Did the trial judge err by refusing to give the appellant any credit for pre-trial custody?
86In view of my conclusion with respect to the conviction appeal, it is not necessary for me to deal with the sentence appeal.
CONCLUSION
87For these reasons, I would admit the fresh evidence, allow the appeal from conviction, set aside the convictions, and in their place substitute a verdict of NCRMD.
“Robert J. Sharpe J.A.”
“I agree K. Feldman J.A.”
“I agree Robert P. Armstrong J.A.”
RELEASED: June 9, 2008
