Her Majesty the Queen v. Sualim
[Indexed as: R. v. Sualim]
Ontario Reports
Court of Appeal for Ontario
Cronk, Rouleau and B.W. Miller JJ.A.
March 2, 2017
135 O.R. (3d) 81 | 2017 ONCA 178
Case Summary
Criminal law — Mental disorder — Evidence — Trial judge at NCR hearing giving no weight to conflicting evidence of Crown and defence forensic psychiatrists on issue of whether accused knew at time of offences that his actions were morally wrong as experts' opinions were based on accused's hearsay self-reports to experts — Trial judge finding that defence had failed to establish that accused was NCR at time of offences — Trial judge refusing to reopen hearing after being informed that Crown and defence counsel had agreed before hearing that accused's self-reports to experts could be relied upon by trial judge for truth of their contents — Trial judge erring in finding that she lacked jurisdiction to reopen hearing after verdict was rendered — Trial judge having duty to come to grips with conflicting expert evidence.
The accused was convicted of robbery with a firearm and theft over $5,000. Following the convictions, the defence advanced a plea of not criminally responsible on account of mental disorder ("NCR"). Based on statements made to them by the accused, the Crown forensic psychiatrist testified that, at the time of the offences, the accused knew that his actions were morally wrong, and the defence forensic psychiatrist testified that the accused did not know that his actions were morally wrong. The trial judge held that the experts' opinions were entitled to no weight because they were based on the accused's hearsay statements or self-reports and the accused had not testified. She found that the defence had failed to meet its onus to establish on a balance of probabilities that the accused was NCR at the time of the offences. Defence counsel then wrote to the trial judge to inform her that counsel had agreed before the NCR hearing that the accused's self-reports to the experts, as detailed in the experts' reports, could be relied on by the trial judge for the truth of their contents. The trial judge had not been made aware of that agreement before the hearing. Defence counsel asked the trial judge to reconsider her ruling. The trial judge declined to alter her original NCR ruling, holding that she did not have the authority to reopen the case after a verdict had been rendered. The accused appealed.
Held, the appeal should be allowed.
The trial judge erred in finding that she had no jurisdiction to reopen the NCR application. A trial judge exercising the functions of both judge and jury in a criminal case is not functus following a finding of guilt until he or she has imposed sentence or otherwise finally disposed of the case. Moreover, without further analysis, the experts' opinions on whether the accused appreciated the moral wrongfulness of his acts at the time of the offences could not be rejected simply because the accused's statements to the experts, upon which their opinions were based, were conflicting. It was incumbent on the trial judge to come to grips with the expert evidence and to determine whether it could be reconciled, or whether one of the expert reports could and should be preferred over the other. The interests of justice dictated that the trial judge's NCR ruling could not stand. A new NCR hearing was ordered.
Cases Referred To
R. v. Lessard, [1976] O.J. No. 74, 30 C.C.C. (2d) 70, 33 C.R.N.S. 16 (C.A.)
Statutes Referred To
Criminal Code, R.S.C. 1985, c. C-46, s. 16(1), (3)
APPEAL
Appeal by the accused from the ruling of Brewer J. of the Ontario Court of Justice on April 22, 2014 dismissing the appellant's application that he be declared not criminally responsible on account of mental disorder.
Najma Jamaldin, for appellant.
Peter N. Fraser, for respondent.
I. Background
1After a trial by judge alone, the appellant was convicted of five counts of robbery with a firearm and five counts of theft over $5,000. The offences in question involved a string of armed robberies and thefts committed in January 2012.
2Following the appellant's convictions, the defence advanced a not criminally responsible on account of mental disorder ("NCR") plea pursuant to s. 16(1) of the Criminal Code, R.S.C. 1985, c. C-46.
3An NCR hearing was conducted on various dates between June 2013 and March 2014. Two forensic psychiatrists testified: Dr. Julian A.C. Gojer, for the defence; and Dr. Treena Wilkie, for the Crown. The two experts agreed on many issues, including that the appellant suffers from a major mental illness (Dr. Wilkie -- schizophrenia and substance abuse disorder; Dr. Gojer -- schizoaffective disorder); that he was likely experiencing psychotic symptoms of his illness in the days leading up to the offences; that his behaviour was goal-directed at the time of the offences; that he was able to appreciate the nature and consequences of his actions; and that he knew his actions were legally wrong.
4However, Dr. Wilkie and Dr. Gojer disagreed on whether, at the time of the offences, the appellant also knew that his actions were morally (as opposed to legally) wrong. In their testimony, both experts confirmed that the appellant's "self-reports" or statements during their interviews of him were the only evidence bearing on this critical issue.
5Dr. Wilkie interviewed the appellant approximately one year after the date of the offences. At the time of this interview, the appellant denied any auditory or visual hallucinations, although he thought people were watching him, for unknown reasons. He told Dr. Wilkie that he committed the offences to make money to start a drug dealing business; that he did not hear voices when he committed the robberies; and that he was concerned that his parents would find out about his activities. Based on these statements, Dr. Wilkie offered the opinion that the appellant understood the moral wrongfulness of his conduct and that he could engage in rational choice. Consequently, in Dr. Wilkie's view, the appellant was criminally responsible at the time of the offences.
6In contrast, at Dr. Gojer's interview with the appellant conducted about two years after the date of the offences, the appellant said that he had been hearing voices at the time of the robberies; that a song by the musician Jay Z was controlling his mind; that the voices he heard had told him to commit the robberies; and that he needed money to support a child he believed (without any evidence) was his. Based on these statements, Dr. Gojer was of the opinion that the appellant's experience of prominent psychotic symptoms at the relevant times would have prevented him from distinguishing between the moral and legal wrongfulness of his acts and, more likely than not, rendered him unable to exercise rational choice. Consequently, in his view, the appellant was not criminally responsible for the offences.
7For reasons dated April 22, 2014, the trial judge held that the opinions of the two psychiatric experts regarding whether the appellant knew that his actions were morally wrong, although admissible, were entitled to no weight because they were based on the appellant's hearsay statements or self-reports to each expert and the appellant had not testified. She therefore concluded that the defence had failed to meet its onus under s. 16(3) of the Criminal Code to establish, on a balance of probabilities, that the appellant was NCR at the time of the offences.
8On June 9, 2014, trial defence counsel wrote to the trial judge, copied to the trial Crown, taking the position that the trial judge had erred in her ruling on the "admissibility" of the expert evidence of the two psychiatrists. As detailed in his letter, trial defence counsel essentially maintained that the NCR hearing had proceeded on a misunderstanding about the admission of the appellant's self-reports to Dr. Wilkie and Dr. Gojer for the truth of their contents, without the necessity of calling the appellant as a witness.
9Specifically, trial defence counsel maintained that counsel had agreed at the NCR hearing that it would not be necessary to call all relevant medical parties involved in the psychiatric assessments of the appellant or the appellant's parents, who had provided information to the two psychiatrists regarding the appellant, as witnesses at the NCR hearing. Further, counsel had also agreed that the parents' statements and the appellant's self-reports to Dr. Gojer and Dr. Wilkie, as detailed in the experts' reports, could be relied on by the trial judge for the truth of their contents, without the necessity of leading oral evidence from the appellant or his parents at the NCR hearing. Trial defence counsel acknowledged in his letter, however, that counsel had not informed the trial judge about their agreement regarding the appellant's self-reports to Dr. Gojer and Dr. Wilkie.
10In these circumstances, trial defence counsel suggested in his letter that the trial judge's NCR ruling "may have been predicated on an assumption" regarding the treatment of hearsay evidence that was not shared by counsel at the NCR hearing and, consequently, that both counsel "probably share[d] the same concerns with respect to the underpinnings of [the trial judge's] judgment".
11Trial defence counsel therefore requested that the trial judge review her judgment "as it relate[d] to the admissibility" of the expert medical evidence. In his letter, counsel stated:
I also concede that the onus was entirely on the defence with respect to establishing the section 16 defence and any fault with respect to appreciating concessions is entirely mine. That is why I raise the motion to re-open the case -- it is my perspective that it is not too late to remedy any miscommunication on the very important issue of admissibility of the expert evidence.
It may also be somewhat fair to argue that both [the trial Crown and trial defence counsel] were working on the same understanding. To begin with the issue of Mr. Sualim's testimony as being necessary to the issue of his defence was never raised at any point of the trial. The issue of his parent's narrative of facts relating to his psychosis at the proximate time of the offence was raised by your Honour but both [the trial Crown] and I immediately identified our common understanding that your Honour could rely on that hearsay without the necessity of calling either parent. Retrospectively I wish I would have also clarified our position with respect to Mr. Sualim but that was not done.
12No formal application to reopen the appellant's NCR plea proceeding was made.
13On September 4, 2014, the trial judge received oral submissions from both counsel regarding the matters raised in the June 9 letter. For brief oral reasons delivered immediately after those submissions, she declined to alter her original NCR ruling. Her reasons, in their entirety, read as follows:
Let me just say a few things with respect to the request to re-open, first, I am unaware of any authority that would permit me to re-open a case after a verdict has been rendered. I appreciate that Counsel are concerned about my misunderstanding of the agreement that they had arrived at with respect to the psychiatric evidence, but, in any event, this is not even a classic form of a request to re-open as there is not to be any evidence called to correct an accidental omission; this was more to ask me to reconsider my judgment.
In addition, the request to treat Mr. Sualim's statement[s] to the two doctors for the truth I think puts me in an impossible situation. What the defendant said to one doctor entirely conflicts with what he said to the other doctor. The only difference between the opinions of the two doctors turns on what was said to them, in my opinion. In my view, this case does not really turn on the credibility of the doctors, but on the reliability of the information given to them. So, I am in effect, in my view, being asked to resolve an issue of credibility without having heard from the source of the conflicting information. I realize that this is not a result that is satisfactory to anyone, but given the circumstances in which I find myself, I believe I have to stand by my original decision.
14Shortly thereafter, a sentencing hearing was conducted. The appellant was sentenced to a total of five and one-half years' imprisonment after credit for pre-sentence custody, plus three years' probation.
15The appellant has served his sentence. However, he remains in custody pending his potential deportation to Nigeria, a country to which he has not been since he was three years of age. The appellant now appeals to this court from the dismissal of his NCR application.
II. Issues
16The appellant contends that this appeal turns on whether the trial judge erred in her treatment of the evidence of his self-reports to the two psychiatrists. He submits that, in light of counsels' agreement about the trial judge's use of that evidence, described above, the trial judge erred by assigning no weight to the opinions of the experts on whether the appellant knew that his actions were morally wrong at the time of the offences.
17In support of this contention, the appellant argued in his factum that the trial judge erred in according no weight to Dr. Wilkie's and Dr. Gojer's opinions:
(1) by refusing to adhere to the parties' agreement "to admit the appellant's evidence through [his] self-report[s] for [their] truth";
(2) by misapprehending the experts' evidence; and
(3) by refusing to reopen the appellant's NCR application to reconsider the expert evidence in light of counsels' agreement regarding the admissibility and use of the evidence of the appellant's self-reports.
III. Discussion
18In our view, it is unnecessary for the disposition of this appeal to address each of these arguments in detail. For the reasons that follow, we are satisfied that the trial judge erred in her treatment of the appellant's self-reports to the two experts and, consequently, in her assessment of the experts' opinions. As a result, a new NCR hearing is required.
19We deal first with the appellant's submission that the trial judge erred by failing to give effect to counsels' agreement that the appellant's self-reports to Dr. Wilkie and Dr. Gojer would be admitted for the truth of their contents without the necessity of calling the appellant as a witness at the NCR hearing. We reject this submission.
20During oral argument before this court, the Crown did not dispute that an understanding or agreement existed between the trial Crown and trial defence counsel at the time of the NCR hearing regarding the admissibility and use by the trial judge of the appellant's self-reports to Dr. Wilkie and Dr. Gojer. The agreement was to the effect that the appellant's statements to Dr. Wilkie and Dr. Gojer, which formed the basis of their conflicting opinions regarding the appellant's knowledge of the moral wrongfulness of his acts at the time of the offences, could be admitted and relied upon by the trial judge for the truth of their contents without the necessity of calling the appellant as a witness at the NCR hearing.
21Importantly, the parties also accepted at the appeal hearing that the trial judge did not know of this agreement between counsel until after she had delivered her NCR ruling.
22The transcripts of the NCR hearing bear this out. They reveal that, during final submissions at the NCR hearing, the trial judge inquired of counsel if there was any agreement between them about whether she could rely, for the truth of its contents, on the evidence of the information furnished by the appellant's parents to Dr. Wilkie and Dr. Gojer, although neither parent had testified. Counsel agreed that she could do so.
23However, neither counsel informed the trial judge of any similar agreement between them concerning the appellant's self-reports to the two experts. Counsels' submissions did not address the admissibility of the appellant's statements to the two psychiatrists. Rather, it appears that counsel merely presumed the admissibility and use by the trial judge of the appellant's statements for the truth of their contents. Nor did the trial judge raise this issue. In the result, the trial judge only learned of counsels' agreement on this issue upon her receipt of the June 9 letter.
24In these circumstances, the trial judge can scarcely be faulted for failing to give effect at the NCR hearing to an agreement or understanding between counsel of which she was unaware. As the trial judge said in her NCR ruling:
I appreciate that the parties have urged me to rely on the defendant's self-reporting in their written submissions, despite the fact that no mention of using such evidence for its truth was made on the record at trial.
25This ground of appeal therefore fails.
26The question then becomes whether the trial judge erred by failing to reopen the appellant's NCR application when requested to do so, and whether she erred by concluding, notwithstanding the new information provided to her about counsels' agreement at the NCR hearing, described above, that her original NCR ruling should stand.
27In our view, the trial judge did err in her approach to these issues. Two factors compel this conclusion. First, in declining to reopen the appellant's NCR application, the trial judge concluded that she lacked the authority to do so. For convenience, we repeat the trial judge's opening remarks in her ruling on the reopening request:
Let me just say a few things with respect to the request to re-open, first, I am unaware of any authority that would permit me to re-open a case after a verdict has been rendered. I appreciate that Counsel are concerned about my misunderstanding of the agreement that they had arrived at with respect to the psychiatric evidence, but, in any event, this is not even a classic form of a request to re-open as there is not to be any evidence called to correct an accidental omission; this was more to ask me to reconsider my judgment.
28Thus, the trial judge was under the impression that she had no jurisdiction to reopen the appellant's NCR application because she had rendered a verdict and, further, because she was being asked to reconsider her ruling on the merits, rather than clarifying or amending her ruling for inadvertent omissions or errors.
29The trial judge was mistaken in this regard. A trial judge exercising the functions of both judge and jury in a criminal case is not functus following a finding of guilt until he or she has imposed sentence or otherwise finally disposed of the case: R. v. Lessard, [1976] O.J. No. 74, 30 C.C.C. (2d) 70 (C.A.), at paras. 10-12; R. v. Griffith (2013), 116 O.R. (3d) 561, [2013] O.J. No. 3565, 2013 ONCA 510, at para. 12. The Crown does not suggest otherwise on this appeal.
30In this case, trial defence counsel had requested the trial judge to reconsider her ruling on "the admissibility of the expert reports" at the NCR hearing. This was a mischaracterization of the actual request made of the trial judge. The June 9 letter, read as a whole, makes clear that the real issue upon which reconsideration by the trial judge was sought was not the admissibility of Dr. Wilkie's and Dr. Gojer's reports, which had been admitted and amplified by their testimony at the NCR hearing, but rather the admissibility of those parts of their reports that detailed the self-reports made to them by the appellant.
31The trial judge's comments, quoted above, confirm that she was aware that she was being asked to reopen the appellant's NCR application for the purpose of reconsidering her NCR ruling based on the new information about counsels' agreement. While the reopening request was made by trial defence counsel, it does not appear to have been opposed by the trial Crown. Nor did the trial Crown dispute the existence of the agreement between counsel regarding the admissibility and use of the appellant's self-reports, as asserted by trial defence counsel.
32There is also a further, important consideration. Because the trial judge treated the appellant's self-reports to Dr. Wilkie and Dr. Gojer as hearsay at the NCR hearing, she concluded that no weight could be assigned to the experts' opinions that were based on those self-reports. As a result, in the trial judge's view, there was no evidence before her upon which she could rely establishing whether the appellant understood the moral wrongfulness of his acts at the time of the offences. Accordingly, the trial judge ruled that the appellant's NCR "defence" failed because the appellant had not met his onus under s. 16(3) of the Criminal Code.
33In so holding, the trial judge did not attempt to reconcile Dr. Wilkie's and Dr. Gojer's competing opinions on the availability of an NCR defence. Nor did she determine at the NCR hearing whether the opinion of one expert should be preferred over that of the other expert.
34Similarly, the trial judge did not undertake these inquiries as a result of the defence reopening request. Instead, in her ruling on that request, after expressing the view that she had no authority to reopen, the trial judge held that, because the appellant's statements to the two psychiatrists were conflicting and "the only difference between the opinions of the two doctors turns on what was said to them", she was unable to resolve the reliability of the appellant's self-reports without having heard testimony directly from the appellant. The trial judge thus concluded that she was not in a position to resolve the conflicting expert opinions. She therefore did not attempt to do so, or to otherwise engage in an analysis of the experts' competing opinions.
35With respect, by proceeding in this fashion, the trial judge erred. Contrary to her understanding, the trial judge had the power to reopen the appellant's NCR application. The appellant's sentencing hearing had not taken place at the time of the reopening request.
36Moreover, without further analysis, the experts' opinions on whether the appellant appreciated the moral wrongfulness of his acts at the time of the offences could not be rejected simply because the appellant's statements to the experts, upon which their opinions were based, were conflicting.
37It was incumbent on the trial judge to come to grips with the expert evidence and to determine whether it could be reconciled, or whether one of the expert opinions could and should be preferred over the other. It may be that, having undertaken the requisite analysis of both opinions, the trial judge would conclude that she was unable to rely on either expert's opinion given the nature of the evidence before her, including the appellant's inconsistent self-reports. Conversely, the trial judge may have been able to conclude that one of the expert's opinions was more reliable than the other. But a conclusion on the issue could not be reached unless the trial judge had engaged in the necessary analysis of the experts' opinions and the information on which they were based.
38As we have explained, in the unusual circumstances of this case and for differing reasons, this did not occur, either at the NCR hearing or as a result of the defence request to reopen the appellant's NCR application. Instead, at the NCR hearing, the trial judge concluded that no weight could be attached to the experts' opinions because the appellant's self-reports to Dr. Wilkie and Dr. Gojer were hearsay and the appellant had not testified. And in her ruling on the defence request to reopen the appellant's NCR application, the trial judge concluded that, because the appellant's self-reports to the two experts were conflicting and the appellant had not testified, she could not resolve the competition between the two experts' opinions.
39In sum, as a result of the way in which this matter unfolded, the fairness of the process, involving a particularly vulnerable accused at a hearing to determine his criminal responsibility for serious crimes -- a proceeding with serious consequences -- was tainted. In these unique circumstances, in our opinion, the interests of justice dictate that the trial judge's NCR ruling cannot stand. It follows that a new NCR hearing is required.
IV. Disposition
40For the reasons given, the trial judge's April 22, 2014 NCR ruling is set aside and a new NCR hearing is ordered. It will be open to the parties, as they may be advised and as the trial judge may direct, to rely at the new hearing on the evidence already adduced at the original NCR hearing.
Appeal allowed.
End of Document
