COURT OF APPEAL FOR ONTARIO
Doherty, MacPherson and Blair JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Ellis
Appellant
Dale Ives, for the appellant
Amy Alyea and Grace Choi, for the respondent
Heard and released orally: December 19, 2012
On appeal from the finding of not criminally responsible on March 11, 2009 by Justice Norman S. Douglas of the Ontario Court of Justice, sitting without a jury.
[1]
Background
In the early morning hours of October 18, 2008, the appellant entered the home of his adoptive parents and attacked them with a club and sword. On December 22, 2008, he pleaded guilty to two counts of assault with a weapon contrary to s. 267(a) of the Criminal Code.
2The Crown requested an assessment of the appellant’s mental condition pursuant to s. 672.11 of the Criminal Code. Dr. W.J. Komer conducted an assessment and concluded:
Mr. Ellis is, in my opinion, fit to stand trial and likely criminally responsible for his actions with regards to mental disorder. He reported having an appreciation of the nature and quality of his actions and a knowledge of their wrongfulness.
3The trial judge granted the Crown’s request for a second assessment. The defence did not oppose this request. Dr. Julian Gojer conducted the second assessment. He concluded:
His thinking at the time of the offences were dictated by irritational thoughts secondary to delusional ideation and in the setting of an active Schizophrenic illness. It is unlikely that at the time of the alleged offenses, Mr. Ellis would have been able to weigh the pros and cons of his actions. It is unlikely that he would have been able to exercise rational choice. He would not have known that his actions were morally wrong. He justified his actions based on delusional ideation. A s. 16(1) defence is available to him.
4On March 11, 2009, the trial judge found that the appellant was NCR pursuant to s. 16 of the Criminal Code. Relying heavily on the testimony of Dr. Gojer, the trial judge concluded:
[Dr. Gojer] convinced me beyond a shadow of a doubt that this defendant, Mr. Ellis, suffers from probably schizophrenia and that whether that is the final diagnosis or not, it is clearly a disease of the mind that rendered him incapable of knowing that his actions were morally wrong. Having listened carefully to Dr. Gojer, I have come to the conclusion that Mr. Ellis is not criminally responsible for his actions.
5Following this verdict, the Ontario Review Board, in a disposition dated May 21, 2009, ordered that Mr. Ellis be detained in the medium secure unit at Regional Mental Health Care St. Thomas.
6By disposition dated September 28, 2010, the ORB ordered that Mr. Ellis be detained in the maximum secure facility at the Oak Ridge Division of the Mental Health Centre Penetanguishene. The ORB made a similar order in its most recent disposition dated December 21, 2011.
7The appellant appeals the NCR verdict on two grounds.
[8]
Ineffective Assistance of Counsel
First, the appellant asserts that he was denied the effective assistance of counsel at trial in two respects: first, trial counsel failed to follow the appellant’s instruction to oppose the second assessment; and second, trial counsel’s approach to, and actual conduct of, the NCR hearing resulted in an unfair process and an unreliable verdict.
9To succeed on a claim of ineffective assistance of counsel, an appellant must establish that trial counsel’s acts or omissions constituted incompetence (the “performance component”) and that a miscarriage of justice resulted (the “prejudice component”): see R. v. B. (G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520 at para. 26.
10In our view, the appellant cannot establish either component of the test. We have carefully reviewed the record and are of the opinion that trial counsel’s approach to the NCR hearing and his performance in it were entirely professional. Regarding the appellant’s specific complaint that his counsel did not comply with his explicit instruction to oppose a second assessment, the record does not support his assertion that this was his instruction, Dr. Komer supported a second assessment, and, indeed, the second assessment could have supported Dr. Komer’s opinion. In short, a second assessment was probably inevitable and desirable and it was a proper exercise of professional judgment for trial counsel not to oppose it.
11Nor do we see the possibility of a different result flowing from a different approach to the case by trial counsel. There was a great deal of evidence about the appellant’s decline in interpersonal functioning and bizarre behaviour and actions to support a mental illness diagnosis and an NCR finding. Trial counsel’s conduct of the proceedings caused no prejudice to the appellant.
12This case presented a difficult problem for defence counsel. The appellant, by his own admission, had committed two very serious assaults on his parents. The attacks and the surrounding circumstances suggested that the appellant may suffer from some sort of mental disorder. The appellant, however, had adamantly denied having any mental problems and indicated he acted as he did because he was drunk.
13Counsel appreciated that the appellant faced either a long term in the penitentiary or an NCR finding and detention subject to subsequent order of the ORB. He knew that the expert opinion as to the appellant’s mental state was divided.
14According to counsel, and we have no reason to reject this evidence, he canvassed the possible outcomes with the appellant. The appellant was adamant that he would not agree to an NCR finding or any statement to the effect that he was mentally ill. He also accepted, however, that counsel could proceed on the basis that he would not object to a further mental assessment and ultimately would not resist an NCR finding.
15Counsel followed that strategy. We see nothing unethical or tactically unreasonable in that choice. Nor apparently did the appellant until sometime after his first ORB hearing. His trial counsel continued to act for him through the hearing.
16The various examples put forward by counsel for the appellant in support of the contention that trial counsel provided incompetent representation at the NCR hearing lose their force when viewed through the lens of the trial strategy adopted by counsel.
[17]
Unreasonable Verdict
Second, the appellant contends that the NCR verdict was unreasonable because no reasonable trier of fact could have concluded that the appellant lacked the capacity to exercise rational choice and to know that his actions were morally wrong.
18We do not accept this submission. Before the attack on his parents, there had been a gradual decline in the appellant’s occupational, social and interpersonal functioning. Also before the attack, the appellant engaged in bizarre actions and experienced weird thoughts, such as speaking of zombies and cows and installing multiple bolts on his door and bars on his windows. The circumstances of the attack are also particularly troubling – the appellant walked four kilometres to his parents’ home and brutally attacked them with a club and sword while calling them “Satanists”. After the attack, the appellant provided inconsistent and unsupported explanations for his conduct, including an allegation about parental sexual abuse of his sister ten years prior, a fight with his mother, and heavy alcohol consumption. All of this conduct militated in favour of the NCR finding made by the trial judge. Coupled with the psychiatric report and testimony of Dr. Gojer, which the trial judge found credible, the NCR finding is far removed from being unreasonable.
19Parenthetically, we observe that much of the extensive fresh evidence prepared by both parties, and especially the record of the three ORB dispositions made since the appellant was declared NCR (the appellant is now in a secure facility and there have been many problems with his behaviour) support, in hindsight, the NCR finding.
[20]
Disposition
The appeal is dismissed.
Released: December 21, 2012 (“D.D.”)
“Doherty J.A.”
“J.C. MacPherson J.A.”
“R.A. Blair J.A.”