W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)
of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
LASKIN, ROSENBERG and LAFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
M.A.W.
Appellant
Joseph Di Luca and Bernadette Saad for the appellant
Gillian Roberts for the respondent
Heard: January 31, 2008
On appeal from the convictions entered on October 4, 2002, and the sentence imposed on January 16, 2003, by Justice Robert T. Weseloh of the Ontario Court of Justice.
A. INTRODUCTION
1The broad question on this appeal is whether the appellant’s guilty pleas to the sexual abuse of his young son should be set aside because a mental disorder undermined the voluntariness of those pleas.
2The two specific issues raised by the parties are: first, what is the proper test for assessing whether a mental disorder affects the voluntariness of a guilty plea; and second, applying that test, has the appellant shown that his pleas were driven by a major depressive disorder that undermined the voluntariness of those pleas.
B. BACKGROUND
(a) The guilty pleas (October 2002)
3The appellant, Mr. W., represented himself at the guilty plea hearing. He pleaded guilty to sexually assaulting and sexually interfering with his son between January 1996 and June 1999, when his son was between 15 months and four and a half years old. He admitted penetrating his son’s anus with his fingers and penis, and forcing his son to perform fellatio. The allegations to which the appellant pleaded came to light when his son disclosed the abuse to his adoptive parents and later gave a videotaped statement to the police.
4After the appellant said he wanted to plead guilty, the trial judge conducted the inquiry contemplated by s. 606(1.1) of the Criminal Code. He asked the appellant whether his plea was voluntary, his “own decision entirely”, whether he understood that the consequences of a guilty plea could be “very severe”, and whether he understood that a trial judge was not bound by any proposed sentence. To all these questions, the appellant replied yes, he understood.
5The case was then adjourned for sentencing. The trial judge ordered a pre-sentence report. Before adjourning, the trial judge encouraged the appellant to get a lawyer.
(b) The sentencing hearing (January 2003)
6The appellant did retain a lawyer, Mr. Ianni, to represent him at the sentencing hearing. At the beginning of the hearing, however, Mr. Ianni asked to be removed from the record. He told the trial judge that the appellant refused to accept his advice. He said that “as an officer of the court, I cannot, in all good conscience, continue to represent Mr. W.”. The trial judge removed Mr. Ianni from the record.
7The trial judge then offered the appellant the opportunity to get another lawyer, including duty counsel who was in court, saying that the appellant “may very well benefit from the presence of qualified counsel”. The appellant refused these offers. He said that he was ready to proceed.
(i) The appellant’s criminal record
8At the sentencing hearing the Crown filed the appellant’s criminal record and supporting documents. The appellant had three sets of previous convictions. In 1988, he was convicted of one count of sexual assault for which he received a sentence of six months’ imprisonment followed by two years of probation. He had rubbed the genital area of a 14 year-old boy while the boy stood on a ladder, after the appellant told him to look into an attic.
9In 1991, the appellant was convicted of one count of gross indecency, one count of invitation to sexual touching, four counts of sexual exploitation and one count of sexual interference for which he was sentenced to nine months’ imprisonment followed by three years’ probation, concurrent on each count (the appellant also served one year pre-trial custody). The appellant had pleaded guilty to allegations that at various times between 1972 and 1990 he had hired six boys, ages 10 to 16 years old, to perform odd jobs, and that once the jobs were finished he offered each of the boys extra money in exchange for a sexual encounter.
10In 2000, the appellant was convicted on one count of uttering a threat and sentenced to 18 months’ probation. After an incident with his wife, he had threatened a 13-year-old girl in a park.
(ii) The pre-sentence report (November 2002)
11The Crown also filed a pre-sentence report that the trial judge had ordered. The report’s author reviewed the appellant’s background. The appellant was 46 years old at the time of sentencing. He was married in 1994 and shortly after, his son was born. His wife never bonded with the child; from the beginning, primarily it was the appellant who cared for his son. As the Crown points out in its factum, the pre-sentence report shows that the appellant was ill-equipped for this role. He suffered from permanent injuries as a result of a bad car accident in the late 1970s; his mental health was fragile at best; he had limited financial means to provide for his family; and he suffers from a sexual paraphilia, an attraction to young teenage boys.
12In 1999, the appellant’s marriage fell apart and the Children’s Aid Society apprehended his son. The appellant became angry, bitter and depressed. He could no longer cope. He frequently threatened suicide.
13By the summer of 2000 he was living on the street. He seemed unwilling to help himself: he refused to see a lawyer, and he refused to see a psychiatrist or get any other medical help.
14The pre-sentence report also described the appellant’s “present situation”, that is his situation at the time of sentencing. He “was deeply depressed and hopeless about his present situation” and “held no hope for his future”. He said that “he could not handle life in the community anymore” and “only sees jail in his future”. He wanted to be declared a dangerous offender so that he could go to jail for the rest of his life.
15The author of the pre-sentence report concluded that because the appellant had no desire to be treated or accept help from an agency, he remained a risk to the community. In the author’s opinion, the appellant “would benefit from intensive long-term therapy to address his depression, self esteem, suicidal ideations and sexual offending behaviour”.
(iii) The evidence of Mary Jackson
16Mary Jackson was the program coordinator and community chaplain for the Bridge Program. Since 1992 the appellant had actively participated in that program. Ms. Jackson was in court the day the appellant was sentenced and asked to speak on his behalf. The trial judge heard her statement, even though the appellant said that it was unnecessary.
17Ms. Jackson asked that “the court consider that he desperately needs psychiatric and physical care”. In her opinion “he doesn’t want his son to have to be interviewed any further. That’s why he pled guilty”.
(iv) The Crown’s position on sentence
18The Crown asked for the maximum sentence, 10 years, less one year’s credit for the five months the appellant spent in pre-trial custody, or a total sentence of nine years’ imprisonment.
(v) The appellant’s position on sentence
19The appellant did not object to any of the documents the Crown filed on sentencing. He declined the trial judge’s offer of time to collect his thoughts before addressing the court; instead he said he agreed with the Crown’s submission and asked for the maximum sentence without parole:
Thank you, You Honour. I agree with Mr. Nadel has said. There’s a history. There’s victims, and the whole thing has just gotten completely out of hand. There was a time when society’s got to hear stop, and it’s the court’s responsibility, in my opinion, to say stop. I have to show dismay because when I first started through the bail hearings I was given the intention that a deal was going to be applied for. I’m disappointed that the Crown has withdrawn that.
I personally feel that we should be looking at the maximum, ten years, no consideration, the same consideration I’ve given my victims, and that should be ten years per count consecutive, no parole. Let’s protect society at least for a little while. Thank you.
(vi) The sentence imposed
20The trial judge agreed with the Crown’s submission, except that he reduced the appellant’s sentence by one year because of his guilty pleas. He sentenced the appellant to eight years’ imprisonment, concurrently on each count.
(c) This application
21After sentencing, the appellant was placed in Millhaven Penitentiary and eventually transferred to the Regional Treatment Centre. After leaving Millhaven, he became paranoid and started hallucinating. Then he started taking medication. As time went by, his hallucinations and his depression subsided. He began questioning his guilty pleas. He said that he had pleaded guilty because of his mental state. He had not been thinking clearly and had not been acting rationally or in his best interest. He had not appreciated the significance of accepting responsibility for actions he did not commit. In May 2004, he served an inmate notice of appeal against both his convictions and his sentence. In June 2005, Goudge J.A. extended the time for filing a notice of appeal.
22In support of his appeal, the appellant filed as fresh evidence three reports by Dr. Jeff McMaster, a psychiatrist with the psychological trauma program at the Centre for Addiction and Mental Health in Toronto. In reply, the Crown filed the report of Dr. Scott Woodside, a staff psychiatrist with the minimum secure rehabilitation unit at the Centre for Addiction and Mental Health. Both psychiatrists were cross-examined on their reports. This appeal turns largely on an assessment of their evidence and on the appropriate test for determining when a mental disorder affects the voluntariness of a guilty plea. I turn now to these issues.
C. Analysis
(a) What is the appropriate test for determining whether mental disorder affects the voluntariness of a guilty plea?
23The judgment of Doherty J.A. in R. v. T. (R.) (1992), 1992 CanLII 2834 (ON CA), 10 O.R. (3d) 514 (C.A.), is the principal decision of this court on what an appellant must show to set aside a guilty plea on the ground that it is invalid. A guilty plea is valid if it is voluntary, informed and unequivocal; conversely a plea that is either not voluntary, not informed, or not unequivocal is invalid and may be set aside on appeal. An appellant has the onus of showing invalidity on a balance of probability: see p. 519.
24The issue on this appeal is whether the appellant’s depression amounted to a mental disorder that affected the voluntariness of his guilty plea. In T. (R.) Doherty J.A. said that “[a] voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: see p. 520. Doherty J.A. also recognized that mental disorder is one factor that may impair the voluntariness of a plea.
25Both sides, of course, accept these principles from T. (R.). However, they disagree on what standard should be applied when an appellant relies on mental disorder to invalidate a plea because of involuntariness. The Crown contends that we should apply the same standard we use to determine an accused’s fitness to stand trial: the “limited cognitive capacity” standard. That standard requires only that the court be satisfied an accused understands the process, can communicate with counsel and can make an active or conscious choice. Whether the accused’s choice is wise, rational or in the accused’s best interest forms no part of the limited cognitive capacity standard. See R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551 at 563-67 (Ont. C.A.).
26The appellant, on the other hand, contends that we should adopt a higher standard of mental competency. The limited cognitive capacity standard advocated by the Crown, he argues, may produce miscarriages of justice. He relies on an article by Schneider and Bloom, “R. v. Taylor: A Decision Not in the Best Interests of Some Mentally Ill Accused” (1995) 38 Crim. L.Q. 183, in which the authors suggest that an accused who irrationally seeks self punishment because of severe depression may be mentally unfit. The appellant says that his guilty pleas were involuntary because his conduct was “irrational, hopeless and helpless” and because he “felt there was no other option than to plead guilty”.
27In my view, the Crown’s position is correct for two main reasons: first, consistency in the standard for mental competency; second, respect for an accused’s liberty interest. Moreover, the limited cognitive capacity standard is compatible with the voluntariness test in T. (R.).
(i) Consistency
28Courts apply the limited cognitive capacity standard to determine an accused’s fitness to stand trial, as well as to assess the voluntariness of an accused’s decision whether to exercise the right to silence and the right to counsel. Applying this same test to the voluntariness of a guilty plea would achieve a desirable degree of uniformity.
29In Taylor, this court accepted the limited cognitive capacity standard for fitness to stand trial. In R. v. Whittle (1994), 1994 CanLII 55 (SCC), 92 C.C.C. (3d) 11 at 25-26 (S.C.C.), the Supreme Court of Canada affirmed that standard for fitness. However, Whittle’s significance goes beyond its affirmation of Taylor’s fitness standard.
30Mr. Whittle, who suffered from schizophrenia, gave statements to the police about crimes he committed, including a murder. In determining whether his statements were voluntary, the court considered whether he was capable of exercising his right to counsel and his right to silence. In concluding that he was capable of doing so, and therefore that his statements were voluntary, Sopinka J. writing for the court made two points relevant to this appeal.
31First, Sopinka J. said that the limited cognitive capacity standard — the ability to understand the process and make an “active choice” or, in other words, a conscious choice — applied to the voluntariness of the statements: see pp. 29-31. Second, he stressed the desirability of a consistent mental competency standard for all decisions that an accused makes before and during the criminal trial – including the decision whether to exercise the right to silence, the decision whether to exercise the right to counsel, the decision whether to testify and the decision how to plead: see p. 30.
In assessing the requisite degree of mental competence required for the exercise of [the right to counsel], it should be observed that the rights of an accused in the criminal process should as far as possible be harmonized. In respect of each of the rights under discussion, the accused is entitled to make a choice. Unless there is some good reason inherent in the right, it makes little sense to differentiate as to the requisite mental state to make that choice.
32Indeed, it is hard to justify a higher standard of mental competency for the decision to plead guilty than for other decisions an accused must make during the criminal process. An accused’s decision to plead guilty is obviously an important decision. But so too is an accused’s decision to retain a lawyer or to give evidence. Further, it would be incongruous to find an accused mentally competent to stand trial, yet unfit to enter a valid plea.
33The limited cognitive capacity standard is also compatible with the test in T. (R.) for determining the voluntariness of a guilty plea. The limited cognitive capacity standard requires an ability to understand the process and make an active or conscious choice. The standard in T. (R.) requires “the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: see p. 520. In substance, these standards are the same. Both standards require that an accused be capable of making a decision. Both standards are subjective: they reject the notion that the accused’s decision must be rational or objectively in the accused’s best interests.
(ii) The liberty interest of an accused
34This leads to the second reason why I agree with the Crown’s position. It respects the accused’s liberty interest, specifically the right to conduct one’s own defence, which is guaranteed by s. 7 of the Charter. Beginning with the Chief Justice Lamer’s majority judgment in R. v. Swain (1991), 1991 CanLII 104 (SCC), 63 C.C.C. (3d) 481 at 505 (S.C.C.), the Supreme Court of Canada has said that the principles of fundamental justice in s. 7 “contemplate an accusatorial and adversarial system of criminal justice founded on respect of the autonomy and dignity of human beings”. Thus, “the principles of fundamental justice must also require that an accused person have the right to control his or her own defence”. Once an accused person had been found fit to stand trial, that accused “must be considered capable of conducting his or her own defence”.
35A higher standard of mental competency that would require accuseds to have the capacity to make rational decisions and act in their own best interests is at odds with the notion of individual autonomy referred to in Swain. In a sense it would smack of paternalism, inviting the court to decide whether accuseds have made wise choices. This standard underlies the approach of Schneider and Bloom on which the appellant relies, but was rejected by this court in Taylor. Writing for the court at p. 567, Lacourcière J.A. said “adopting a high threshold to fitness, including a ‘best interests’ component, derogates from the fundamental principal that an accused is entitled to choose his own defence and to present it as he chooses”.
36Therefore, in my view, the evidentiary record on this appeal must be assessed against the limited cognitive capacity standard. To succeed on this appeal, the appellant must show that his depression deprived him of the capacity to make an active or conscious choice whether to plead guilty, or the capacity to make a “conscious volitional decision … to plead guilty … for reasons which he … regards as appropriate”: see T. (R.), supra, at 520. He cannot succeed if he can merely show that his decision to plead guilty was not rational or in his best interests, or even that he was incapable of making a decision that was rational or in his best interests.
37The appellant’s fitness to stand trial and the voluntariness of his decisions to refuse the assistance of counsel and plead guilty were not raised at trial. That they were not raised, I do not regard as fatal to the appellant’s appeal. In saying that, I intend no criticism of the trial judge. He conducted the plea and sentencing proceedings entirely appropriately. However, he did not have the benefit of the fresh evidence now before this court and on which the appellant relies. I will now consider that evidence.
(b) Has the appellant shown that his pleas were not voluntary?
38The answer to this question turns largely on our assessment of the expert evidence. Relying on Dr. McMaster’s opinion, the appellant contends that at the time of his pleas and sentencing he suffered from a major depressive disorder that affected the voluntariness of his pleas. Relying on Dr. Woodside’s opinion, the Crown contends either the appellant did not suffer from a major depressive disorder, or that if he did suffer from a major depressive disorder, that disorder was moderate and non-psychotic. In either case, the Crown says, the voluntariness of his pleas was not impaired.
39Dr. Woodside defined major depressive disorder as:
[A] major mental illness that tends to have its onset in the third or fourth decade of life. It is characterized by symptoms of a major depressive episode, which usually develops over days to weeks and lasts, untreated, typically six months or longer. … During a major depressive episode, an individual will feel sad and blue, will lose interest in their usual pursuits, will give evidence of disturbance of sleep and appetite, will have impaired concentration, will tend to feel hopeless, helpless and worthless, and may experience suicidal ideation. As well, individuals may suffer from symptoms of psychosis during a major depressive episode.
Dr. McMaster did not disagree with this definition.
40Both experts acknowledged that a major depressive disorder could potentially affect a person’s ability to make a conscious volitional decision. However, the experts disagreed on whether the appellant had a major depressive disorder, or at least one that undermined the voluntariness of his pleas.
41Neither expert examined or even interviewed the appellant during the relevant time — October 2002 to January 2003. Both interviewed him two to three years later, when he was not suffering from depression. Therefore, in assessing the appellant and coming to their opinions on his mental competence at the relevant time, the experts had to rely on the following:
- The appellant’s self-report of his mental state, which included his feelings of hopelessness and his suicidal ideation;
- The views of Mary Jackson, who knew the appellant well, but has no professional qualifications to diagnose him;
- The pre-sentence report, which outlined the appellant’s fixation on suicide and refusal of any medical or legal assistance;
- The appellant’s behaviour before the trial judge, which included refusing legal assistance or any adjournment, failing to object to any documents tendered by the Crown and asking for the maximum punishment available to the court;
- “Stressors” in the appellant’s life, which included his marriage break-up, CAS’s apprehension of his son, his homelessness and his poor physical health;
- The appellant’s unusual behaviour during an incident that occurred in late July 2002, about a month before the appellant was arrested: the appellant walked into a client services area at Revenue Canada and demanded that $991,000 be reported as tax payable on his tax return because he and his family had received this amount from federal and provincial social programs; when a Revenue Canada agent told him that his request could not be accommodated, the appellant said that the amount better be shown by July 29, 2002, “or it will be the difference between suicide or a murder suicide”; and
- Previous psychiatric assessments of the appellant.
42Much of this evidence shows that the appellant’s conduct from just before the plea proceeding through the sentencing proceeding was highly unusual. However, I am not satisfied that the appellant has shown his pleas were not voluntary. I say that for these reasons.
(i) Dr. Woodside’s evidence preferred
43On balance, I prefer the opinion of Dr. Woodside to that of Dr. McMaster. Dr. Woodside’s opinion (including both his report and testimony on cross-examination) is more thorough, better organized and, especially, more cogent than Dr. McMaster’s because he ties his analysis closely to the available evidence. Dr. McMaster’s opinion tends to be conclusory, somewhat disorganized, and less cogent because it is not as well anchored in the evidence. And if Dr. Woodside’s evidence is accepted, the appellant’s appeal must fail.
44Unlike Dr. McMaster, Dr. Woodside provides guidance on the circumstances in which a major depressive disorder is more likely to impair the voluntariness of a guilty plea. In his view, it is likely to do so only where either it is a psychotic form of depression, characterized, for example, by hallucinations or delusions, or it is a very severe form of depression. The appellant did not suffer from a psychotic form of depression. We have no evidence that he was delusional or hallucinating when he pleaded guilty and was sentenced. And in Dr. Woodside’s opinion, if he did suffer from a major depressive disorder, it was of no more than moderate severity. Dr. Woodside therefore concluded that the appellant’s mental state did not affect the voluntariness of his pleas.
45Dr. Woodside also addressed the other evidence the appellant relies on to support his claim that his pleas were not voluntary. For example, he considered the appellant’s own statement about his mental health. In Dr. Woodside’s opinion the appellant’s self report only “weakly supports” his claim that he was suffering from a major depressive disorder; rather, in the doctor’s view, his conduct is more likely explained by a personality disorder and his long-standing difficulties in coping with interpersonal problems and stress.
46Moreover, in Dr. Woodside’s opinion, the appellant’s behaviour at the plea and sentencing hearings points more likely to a kind of childish self-pitying “all or nothing” thinking, not a depressive disorder. Also, the Revenue Canada incident, though unusual, cannot by itself support a finding of a major depressive disorder at least without knowing more about its context.
47Finally, Dr. Woodside considered the appellant’s refusal to accept legal assistance or medical treatment around the relevant period. Admittedly that conduct was unusual and may be viewed as bolstering the appellant’s argument that he had given up hope and was acting out a desire for punishment. However, neither Dr. Woodside nor even Dr. McMaster pointed to a tight link between these kinds of refusals and a diagnosis of a major depressive disorder. Dr. Woodside was certainly alive to the appellant’s tendency to refuse help, yet he still did not think the appellant was suffering from a major depressive disorder.
(ii) Dr. McMaster’s evidence does not support the appellant’s claim
48Even were I to accept Dr. McMaster’s evidence, overall I do not think that it is sufficient to sustain the appellant’s claim. In his initial report, Dr. McMaster wrote: “It would appear that [the appellant] was fit from a limited capacity threshold at the time of his plea and sentencing”. On my reading of Whittle, Taylor, and T. (R.), that comment amounts to an acknowledgement that the appellant’s pleas were voluntary.
49Indeed, Dr. McMaster’s opinion that the appellant’s pleas were not voluntary is premised on a standard rejected by this court in Taylor and by the Supreme Court of Canada in Whittle. In both in his initial and later report, Dr. McMaster concluded that “Mr. W.’s decisions at the time of his plea and sentencing were influenced significantly by a major mental disorder (major depressive disorder), such that he did not have the ability to make a rational choice”. Whether the appellant was able to make a rational choice is not the relevant test; rather the test is whether the appellant had the capacity to make an active or conscious choice for reasons he considered appropriate.
50On cross-examination, Dr. McMaster seemed to acknowledge that the appellant did have the capacity to make an active or conscious choice. Asked on cross-examination what he meant when he wrote the appellant lacked the ability to make a rational choice, he testified that the appellant “obviously knew what he was doing, he was putting in a guilty plea. He knew what would happen when he put in a guilty plea. But he had this disorder that prevented him from weighing the different options and coming up with a conclusion based on a weighing of options. There was only one option.” By giving this testimony, Dr. McMaster seemed to accept that the appellant knew that he had options but did not consider any choice but a guilty plea because that is the choice he thought he had to make. In Dr. McMaster’s opinion, the appellant’s belief that a guilty plea was his only option undermines the voluntariness of those pleas.
51The law, however, does not require that an accused be able to engage in a careful, reasoned weighing of options. The appellant’s conviction that he had only one option may reflect a realistic assessment of his actions, an expression of remorse, or a wish to spare his son from being further interviewed or having to testify in court. Conscious singlemindedness does not render a decision involuntary. Moreover, as Dr. Woodside points out, a desire to punish oneself for wrongdoing – even an irrational desire to do so – does not necessarily reflect the presence of a mental illness.
(iii) Previous psychiatric assessments of the appellant did not diagnose a major depressive disorder
52The doctors who saw the appellant before his plea did not diagnose a major depressive disorder or treat for it. To the extent that they treated the appellant, they treated him for a personality dysfunction.
53Dr. Eppel, a psychiatrist, saw the appellant in early 2000 after his marriage had ended, his son had been apprehended and he had attempted suicide. Dr. Eppel did not report that the appellant suffered from a major depressive disorder, and did not prescribe anti-depressant medication.
54Dr. Hucker, a psychiatrist, saw the appellant in 2000 to assess him for a paraphilia. Dr. Hucker took a thorough history and noted the numerous stressors in the appellant’s life. But he gave no indication that the appellant suffered from a depressive disorder.
55The appellant was also briefly assessed at the Hamilton-Wentworth Detention Centre just before his plea. Although the assessment describes the appellant as “depressed”, it gives no indication of the severity of the depression and does not state that he was suffering from major depressive disorder. Further, a later assessment at Hamilton-Wentworth diagnosed the appellant with affective disorder and personality disorder, not depression.
56Finally, during the 18 months that the appellant spent at the Regional Treatment Centre following his sentencing, none of the doctors or nurses who attended to him diagnosed him with major depressive disorder. They viewed his difficulties as primarily caused by a personality disorder.
57Apart from Dr. McMaster, the one health practitioner who noted that the appellant suffered from a major depressive disorder was Steve Losztyn, a psychologist at Warkworth. Dr. Losztyn saw the appellant in April and June 2003 and again in February 2005, over two years after he had been sentenced and after he had returned from a lengthy stay at the Regional Treatment Centre. In his 2005 report, Dr. Losztyn noted that the appellant’s “admission to RTC was precipitated by severe signs and symptoms commensurate with a Major Depressive Disorder, including the presence of auditory hallucinations and chronic suicidal ideation”. However, Dr. Losztyn’s 2003 reports, although they refer to the appellant as “depressed”, do not use the term major depressive disorder, and his April 2003 report notes that he did not see any signs of imminent self-harm. Further, Dr. Losztyn’s April 2003 report appears to conflict with the discharge note of Dr. Oliver, a psychiatrist at RTC, who saw no evidence that the appellant suffered from a major depressive disorder.
58Dr. Losztyn also found that the appellant experienced hallucinations. Even if we accept that finding, however, it does not lead to the conclusion that the appellant’s guilty pleas were involuntary. Admittedly, Dr. Woodside’s report states that delusions or hallucinations might interfere with a person’s ability to make a conscious, volitional choice. But the hallucinations Dr. Losztyn refers to allegedly took place several months after the appellant entered his pleas, while the appellant was at the Warkworth Institution in April and May 2003. As I said earlier, there is no evidence on the record that the appellant experienced delusions or hallucinations during the period of the plea and sentencing proceedings.
(iv) Some of the appellant’s conduct demonstrated that he was not suffering from a major depressive disorder
59Balanced against the appellant’s highly unusual behaviour was conduct tending to show that he was not suffering from a major depression. For example, at the plea and sentencing hearings, the appellant could point to specific sections of the Criminal Code, advance legal arguments, and ask for protection for the identity of victims. Though claiming to be deeply depressed, he continued to do volunteer work at an information agency from 1999 to 2002. In 2002 he edited a monthly newspaper. And while in jail following his arrest, he reported sleeping well and enjoying socializing with fellow inmates.
60Further, when the appellant arrived at the Regional Treatment Centre, he claimed that his depression disappeared overnight without any treatment or medication. Diagnostic testing of the appellant at the Centre suggests that he overstated his symptoms. When eventually he was briefly treated with an anti-depressant medication he apparently improved after the medication was discontinued, a seemingly atypical response for one suffering from a severe depression.
61For these reasons I conclude that the appellant has failed to show his pleas were not voluntary.
D. CONCLUSION
62The appellant seeks to set aside his guilty pleas on the ground that they were not voluntary. He submits that he suffered from a major depressive disorder that impaired the voluntariness of those pleas. I do not accept this submission. I would therefore dismiss this appeal.
63In pleading guilty the appellant understood the process and made a conscious volitional decision that he considered appropriate. His pleas were therefore voluntary.
RELEASED: July 11, 2008 “John Laskin J.A.”
“JIL” “I agree M. Rosenberg J.A.”
“I agree H.S. LaForme J.A.”
