Court of Appeal for Ontario

Date: 2021-05-19 Docket: C66970

Judges: Watt, Hoy and Nordheimer JJ.A.

Between: Her Majesty the Queen Respondent

And: Duane Jeffrey Anderson Appellant

Counsel: Terrance Luscombe, for the appellant Dena Bonnet, for the respondent

Heard: March 24, 2021 by video conference

On appeal from the verdict of not criminally responsible on account of mental disorder entered by Justice David M. Stone of the Ontario Court of Justice, dated June 19, 2018.

By the Court:

[1] On June 19, 2018 the appellant was found not criminally responsible on account of mental disorder (”NCRMD”) at the conclusion of proceedings before a judge of the Ontario Court of Justice. He appeals that finding on the basis that he did not appreciate the nature of the proceedings that resulted in the verdict. In addition, he never intended to admit the conduct that formed the basis of the several offences with which he was charged or the conclusion of the psychiatrist who conducted the court-ordered assessment.

[2] At the conclusion of the appellant’s submissions, we dismissed the appeal. We promised to provide reasons for that decision. Those reasons follow.

The Background Facts

[3] As a result of a series of events at his mother’s home, the appellant was charged with arson, unlawful confinement, assault with a weapon, mischief and failure to comply with an undertaking. He elected trial by a judge and jury and had a preliminary inquiry.

The Preliminary Inquiry

[4] Over three days, evidence was given about the circumstances underlying the offences with which the appellant was charged. His mother and brother testified about how the events began and continued before and after his mother called 911. The officers who responded to the 911 call also gave evidence of their observations and interactions with the appellant.

[5] An investigator from the Office of the Fire Marshal explained that the fire that occurred at the appellant’s mother’s home had been intentionally set. The fire had been started by igniting a mixture of methyl alcohol (fondue fuel) and mineral oil (four-stroke motor oil).

The Exit Pre-Trial

[6] At the conclusion of the case for the Crown at the preliminary inquiry, Crown counsel advised the presiding judge of the counts on which he (Crown counsel) would be seeking committal. The presiding judge did not rule on the issue of committal.

[7] Crown and defence counsel agreed to conduct an exit pre-trial with the preliminary inquiry judge.

The Assessment Order

[8] After the exit pre-trial concluded, the parties returned to the courtroom later the same day. Crown counsel sought an order for an assessment report under s. 672.11 of the Criminal Code, R.S.C. 1985, c. C-46. The purpose of the report was to obtain evidence of whether the appellant was, at the time of the commission of the offences charged, suffering from a mental disorder so as to be exempt from criminal responsibility under s. 16(1) of the Criminal Code.

[9] The preliminary inquiry judge advised counsel of his provisional conclusions about committal. However, counsel did not request, and the judge did not make, any formal order of committal or discharge on the counts contained in the information.

[10] On his own motion, the preliminary inquiry judge concluded that he had reasonable grounds to believe that evidence of the appellant’s mental condition was necessary to determine the issue of the appellant’s criminal responsibility for the offences charged. The judge remanded the appellant for 60 days to Ontario Shores Centre for Mental Health Services so that the assessment could be carried out.

The Exit Pre-Trial Resumes

[11] About two months later, after the parties had received and reviewed the Assessment Report from Ontario Shores, they returned before the preliminary inquiry judge. They resumed the exit pre-trial.

[12] When the parties returned to the courtroom, defence counsel advised the preliminary inquiry judge that he (defence counsel) had met with the appellant both before and after the initial exit pre-trial. Counsel explained that he had read and discussed the contents of the report with the appellant including its conclusion. The appellant, counsel said, was aware of the contents of the report and the conclusion of its author, Dr. Pytyck. According to counsel, the appellant was willing to acknowledge and accept the psychiatrist’s opinion as expressed in her report.

The Re-Election

[13] Through counsel, the appellant indicated he wanted to re-elect his mode of trial. Counsel waived re-arraignment and indicated the appellant’s wish to be tried in the Ontario Court of Justice before the preliminary inquiry judge. The appellant confirmed his wish to proceed in this way. The Crown consented to the re-election. The appellant entered a plea of not guilty.

[14] The parties agreed that in deciding the case, the presiding judge could rely on the evidence adduced at the preliminary inquiry together with the synopses that Crown counsel had read into the record.

The Positions of the Parties at Trial

[15] The trial Crown, relying on the evidence adduced at the preliminary inquiry and the content of the synopses, asked the trial judge to find the appellant committed the acts that formed the basis of the offences on which the judge had indicated he would commit the appellant for trial. On the basis of the opinion of the forensic psychiatrist who conducted the assessment, the Crown invited the trial judge to find the appellant not criminally responsible on account of mental disorder on the affected counts.

[16] Defence counsel made no further submissions.

The Decision of the Trial Judge

[17] In brief reasons, the trial judge found the appellant not guilty on two counts. On the remaining counts, the trial judge found that the appellant committed the acts that formed the basis of the offences, but was at the time suffering from a mental disorder that exempted him from criminal responsibility for those offences.

[18] After entering the special verdict of NCRMD, the trial judge declined to conduct a disposition hearing but referred the matter to the Ontario Review Board (“ORB”) to hold a disposition hearing. The appellant remains under the supervision of the ORB.

The Grounds of Appeal

[19] In this court, the appellant advances a single ground of appeal. He says that the trial judge erred in failing to ensure that the appellant understood the procedure that was being followed and its consequences for him. In support of this ground, the appellant relies on materials tendered for admission in this court to supplement the trial record.

The Failure to Ensure the Appellant’s Understanding of the Proceedings

[20] The single ground of appeal advanced by the appellant alleges that a miscarriage of justice occurred because the trial judge failed:

i. to explain the process of a NCRMD “plea” to the appellant; and ii. to conduct an inquiry to ensure that the appellant’s admission of the circumstances of the predicate offences was voluntary, informed and unequivocal.

[21] Some further background is necessary to situate this claim of error in its proper setting.

The Additional Background

[22] The parties have enhanced the trial record with affidavit material from the appellant and trial counsel. No issue is raised about admissibility.

[23] The appellant is currently subject to a detention order. He is confined to the Forensic Psychiatric Rehabilitation Unit at Ontario Shores Centre for Mental Health Services.

The Affidavit of the Appellant

[24] On at least a dozen occasions between 2004 and 2017, the appellant was assessed or treated at Lakeridge Health in Oshawa and the Centre for Addiction and Mental Health. The diagnoses have varied. Alcohol and Substance Abuse Disorder. Depressive Disorder. Antisocial Personality Disorder. Narcissistic features. Anger management problems. Schizophrenic Disorder – Schizoaffective Type. And most recently, Schizoaffective Disorder – Bipolar Subtype. The appellant also believes that he has an acquired brain injury from several sports-related concussions. Over two decades ago, he lapsed into a coma after a fall.

[25] The appellant says that he did not understand that the proceedings after his re-election would result in a finding of NCRMD and deprive him of his right to have a trial. He believed that he was remanded to Ontario Shores so that he could receive psychiatric treatment and remain fit for his trial.

[26] The appellant cannot recall having received any advice from trial counsel about the meaning, process or consequences of a NCRMD finding. He felt drowsy and had difficulty following the proceedings.

[27] The appellant claims he did not intend to accept the facts as outlined in the preliminary inquiry or the allegations included in the synopses read by Crown counsel after the re-election. He did not intend to accept the NCRMD assessment and the conclusions expressed by the examining psychiatrist. He did not wish to give up his right to have a trial and to testify in his own defence.

The Affidavit of Trial Counsel

[28] Trial counsel (not counsel on appeal) has practiced law for nearly one and one-half decades, including about ten years as defence counsel in criminal cases. He assumed carriage of the appellant’s case from prior counsel (now counsel on appeal) about two months before the preliminary inquiry. He spoke and met with the appellant in advance and on each day of the inquiry. The original election had been made and the preliminary hearing dates set by previous counsel with whom trial counsel’s associate had met. During his meetings with the appellant before and during the preliminary inquiry, trial counsel explained what he anticipated would happen in the courtroom and assessed the appellant’s condition. Three times during the preliminary inquiry, the appellant disrupted the examination of witnesses.

[29] At the conclusion of the evidence at the preliminary inquiry, trial counsel conceded committal on several counts. Crown counsel acknowledged that the appellant should be discharged on others. As trial counsel had indicated when the preliminary inquiry began, he requested an exit pre-trial with the presiding judge. The Crown agreed.

[30] When the exit pre-trial ended, defence counsel met with the appellant. Counsel explained that if the appellant were convicted, the Crown would seek a sentence of three to five years, and that the preliminary inquiry judge considered a sentence of five years appropriate. Counsel advised the appellant of the judge’s opinion about sentence.

[31] Trial counsel told the appellant that the judge was going to order an NCR assessment. Counsel explained that the assessment would be done at a hospital. The appellant would meet with doctors who would prepare a report for the court. Trial counsel and the appellant had talked about “the NCR process” on prior occasions. Counsel pointed out that if the appellant were found NCRMD, he (the appellant) would remain in hospital for an indeterminate time. His release would be up to the ORB and the appellant’s own progress. The appellant agreed to proceed with the NCR assessment, or at least did not oppose it.

[32] After trial counsel had received the assessment, he met with the appellant both before and after the exit pre-trial reconvened before the presiding judge. Counsel reviewed the report with the appellant focusing on:

[T]he sections entitled “Medications,” “Medical History,” “Psychiatric History,” the file information from Lakeridge Health, the description of Mr. Anderson’s account of the events, “Functional Inquiry,” “Course in Hospital,” “Mental Status Examination” and “Psychiatric Opinions and Recommendations.”

The appellant seemed to understand the contents of the report, including Dr. Pytyck’s conclusions, and that the report would be put before the trial judge who would decide whether the appellant would be found NCRMD.

[33] Trial counsel repeated his prior discussions with the appellant about the procedure in NCR cases and what would happen were the appellant to be found NCRMD and be subject to the supervision of the ORB. Counsel explained that if the appellant wished to go ahead with the NCR process, his trial in the criminal court would end and his case would be transferred to the ORB.

[34] Trial counsel described his explanation of the courtroom procedure in these terms:

I spoke to Mr. Anderson about the procedure that would happen in court. I explained to him that if he wanted to accept the NCR verdict, we would convert the preliminary inquiry into a trial before Justice Stone. We would ask the judge to apply the evidence from the preliminary inquiry to the trial along with some additional reports. I said that the reports were essentially information that was already before the judge because they related to witnesses who had already testified at the preliminary inquiry. I explained that we would not dispute that evidence. This meant that while he was not admitting the evidence was true, he also would not be offering any evidence or argument to contradict it. As a result, the judge would likely accept the evidence and base his decision on it.

The Psychiatric Report

[35] Dr. Jennifer Pytyck, a forensic psychiatrist at Ontario Shores, conducted the court-ordered psychiatric assessment of the appellant. She outlined the appellant’s extensive history of psychiatric treatment for substance abuse, agitation, aggression, suicidal ideation and schizophrenia. In her opinion, the appellant suffered from Schizoaffective Disorder – Bipolar Subtype. He displayed significant psychotic symptoms during the assessment period.

[36] Dr. Pytyck concluded that, at the time of the predicate offences, the appellant showed significant symptoms of mania and psychosis. He had the delusional belief that his mother and brother were trying to steal from, and harm, him. His mother was hiding a secret twin sister. The appellant believed he was infested with insects. The appellant acknowledged that he was suicidal at the time of the alleged offences, which he denied committing.

[37] Dr. Pytyck explained that, although the appellant may have understood the nature and quality of his conduct at the time of the offences, he likely lacked the faculty of rational perception with respect to his understanding of their wrongfulness.

The Arguments on Appeal

[38] The appellant says that this appeal should be decided on the basis of the trial record as amplified by the affidavits filed in this court by the appellant and trial counsel. Neither affiant was cross-examined. This enhanced record enables this court to evaluate whether the appellant understood the nature of the proceedings and knowingly participated in them.

[39] Before an accused may be found NCRMD, a trial court must make a finding that the accused committed the acts that formed the basis of the offence charged. Such a finding can only be made on the basis of evidence adduced at trial or where the accused admits those acts by pleading guilty. Neither happened here.

[40] The appellant points out that when an accused pleads guilty, the presiding judge must conduct a plea comprehension inquiry. This ensures that the plea is voluntary, informed and unequivocal. No such inquiry took place here.

[41] The appellant accepts that in some cases in which an accused does not, or cannot, admit that they committed the acts that formed the basis of the offences charged, it is common practice for the accused to:

i. enter a plea of not guilty; ii. not contest the factual allegations of the Crown; and iii. make no submissions about or acquiesce in a finding of guilt.

(This procedure enables an accused to challenge any pre-trial rulings in this court, something a plea of guilty would foreclose.) Although not required in all cases, an inquiry similar to a plea comprehension inquiry is required in some, among them this case.

[42] In this case, the appellant continues, he was more of a spectator or bystander than a participant in the proceedings that resulted in the NCRMD verdict. Nothing akin to a plea comprehension inquiry occurred. The proposed course of the proceedings was never explained to him in the courtroom. The appellant’s participation was extremely limited. Affirming his re-election. Acknowledging his return to Ontario Shores and supervision by the ORB after the verdict had been rendered. This despite well-documented, longstanding and severe mental health issues. Counsel’s inquiries are not a surrogate for the obligations of the trial judge to ensure the appellant’s understanding of the procedure followed and its consequences for the appellant.

[43] The respondent demurs. Although the appellant does not contend that trial counsel provided ineffective assistance, his position pivots on whether he was properly apprised of the implications of the procedure followed and the consequences of a NCRMD verdict. The evidentiary foundation for the claim of uninformed participation is that the appellant cannot now recall conversations with trial counsel about the procedure to be followed, the NCRMD verdict, or its consequences for him. A review of the record of the proceedings as enhanced by the affidavit evidence affords no basis for the conclusion that a miscarriage of justice has occurred.

[44] The underlying circumstances, the respondent says, belie the claim of uninformed participation. Throughout the three-day preliminary inquiry and the NCR proceedings, the appellant exercised several procedural and substantive rights. He was represented throughout by counsel with whom he had many conversations and discussions before and during the preliminary inquiry and before the NCR hearing. The preliminary inquiry involved a full preview of the case for the Crown. The witnesses were cross-examined, aided by information that could only have been provided by the appellant. As a result of exit pre-trials, the appellant was made aware of the strength of the case against him, the offences on which he would likely be ordered to stand trial, and the likely sentencing disposition were he to be convicted after trial.

[45] This is not a case, the respondent continues, in which a plea inquiry was required. Absent a plea of guilty, no plea comprehension inquiry was required. Nor did the fact that the appellant did not expressly admit the conduct that formed the basis of the offences charged require a plea comprehension inquiry. The additional evidence makes it clear that the appellant, who was fit to stand trial, had several discussions about the NCR verdict, its consequences for him and the procedural steps necessary to achieve that result. That he understood the process and its consequences is confirmed by his positive response when the verdict had been rendered:

THE COURT: So, the upside of this is that you will be returned to the Ontario Shores facility[.]

That means you will not ever have to face a judge and jury trial, this matter will be effectively concluded as far as this Court is concerned and I will be turning you over in effect to the Ontario Review Board[.]

Any questions, Sir?

ANDERSON: No, Sir. No, Your Honour, I’m okay.

The Governing Principles

[46] Precedent and principle, some substantive, some procedural in origin, help determine whether the appellant has been the victim of a miscarriage of justice.

[47] The Criminal Code defines mental disorder. A mental disorder, s. 2 instructs us, is a disease of the mind. However, what the Criminal Code does not say is that, without more, a person who commits an offence when suffering from a mental disorder at the time of doing so has a defence to the charge. Or that they are excused from having committed it. This is because neither is so: Dennis J. Baker, Textbook of Criminal Law, 4th ed. (London: Thomson Reuters, 2015), at para. 30-012.

[48] What the Criminal Code does say is that some mental disorders may be so severe that they deprive an accused of the capacity for criminal intent. This occurs when the mental disorder deprives the accused of the capacity to appreciate the nature and quality of their conduct, or of the capacity to know that their conduct is wrong. It is in these instances, because of an incapacity for criminal intent, that the Criminal Code permits mental disorder to operate as an exemption from criminal liability: R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1321-23; Criminal Code, s. 16(1).

[49] This exemption from criminal responsibility on account of mental disorder does not require entry of a designated or different plea. Said in a different way, there is no special plea of “not criminally responsible on account of mental disorder”. Section 606(1) of the Criminal Code describes the pleas available to an accused who is called upon to plead. Those pleas are the general pleas of guilty or not guilty, or the special pleas authorized by Part XX. Sections 607(1) and (2) describe the special pleas authorized by Part XX. Not among them is a special plea of not criminally responsible on account of mental disorder: R. v. G. (D.M.), 2011 ONCA 343, 275 C.C.C (3d) 295, at para. 43.

[50] Where an accused enters a plea of guilty, s. 606(1.1) of the Criminal Code requires the presiding judge to conduct the plea comprehension inquiry before accepting and giving effect to the plea. The purpose of this inquiry is to enable the presiding judge to be satisfied that the guilty plea is voluntary and informed and that the facts alleged by the Crown support the charge to which the plea has been entered. The failure of the judge to conduct a full plea comprehension inquiry does not affect the validity of the plea: Criminal Code, s. 606(1.2).

[51] Neither s. 606 nor any other Criminal Code provision requires or authorizes a plea comprehension inquiry where the plea entered is not guilty.

[52] A plea of not guilty is an accused’s formal, in-court denial of having committed any offence to which the plea is entered. By pleading not guilty, an accused provides notice to the Crown and the trier of fact that the accused requires the Crown to prove each essential element of the offence to which the plea was entered beyond a reasonable doubt by evidence that is relevant, material and admissible. A plea of not guilty does not involve any admission by an accused about any essential element of the offence or the ability of the Crown to prove it: G. (D.M.), at paras. 40, 49 and 52; R. v. P. (R.), 2013 ONCA 53, 295 C.C.C. (3d) 28, at para. 41, leave to appeal refused, [2013] S.C.C.A. No. 133.

[53] Although the exclusive language of s. 606(1) forecloses a formal plea of nolo contendre, a practice which approaches its functional equivalence has developed in this province. The procedure is invoked frequently, but not exclusively, when the adequacy of the case for the Crown depends on certain evidence the admissibility of which is contested by the accused and is subject to pre-trial challenge and a ruling on admissibility. If the evidence is admitted, under a plea of not guilty, the accused accepts the case for the Crown, whether based on an agreed statement of facts or otherwise, and adduces no defence evidence. A finding of guilt follows. When this occurs, the accused preserves the right to challenge the evidentiary ruling on appeal, a right foreclosed if the plea had been guilty and could not be set aside on appeal. See R. v. Fegan (1993), 80 C.C.C. (3d) 356 (Ont. C.A.), at pp. 359-62; R. v. Faulkner, 2018 ONCA 174, 407 C.R.R. (2d) 59, at para. 92; and R. v. Lopez-Restrepo, 2018 ONCA 887, 369 C.C.C. (3d) 56, at paras. 25-26.

[54] The procedure just described is not without its potential pitfalls. When this procedure is proposed, the presiding judge should engage in the functional equivalent of a plea comprehension inquiry to confirm the accused’s understanding of what is at stake by proceeding in this way: Lopez-Restrepo, at para. 27. Where an inquiry is not conducted, it is for the reviewing court to determine whether the absence of a formal inquiry has resulted in a miscarriage of justice because it compromised the fairness of the proceedings or contributed to an unreliable verdict: P. (R.), at para. 66.

The Principles Applied

[55] As we will explain, we do not give effect to this argument. Despite some imperfections in the proceedings, we are satisfied that no miscarriage of justice occurred. Nothing that occurred or failed to occur compromised the overall fairness of the proceedings or the reliability of the NCRMD verdict.

[56] As the amplified record in this case plainly shows, the appellant was represented throughout by competent defence counsel who, in accordance with the appellant’s original election, concluded a full three-day preliminary inquiry. The entirety of the case for the Crown was revealed under oath. The eyewitnesses. The responding police officers. The investigator from the Office of the Fire Marshal. The witnesses were cross-examined. The appellant and counsel spoke both prior to and each day of the preliminary inquiry. Counsel explained what he anticipated would unfold at each day’s proceedings. He also wanted to assess the appellant’s condition, especially in light of the appellant’s interruption of the proceedings during the evidence of his mother, his brother and a police officer.

[57] As he foreshadowed at the outset of the preliminary inquiry, defence counsel and Crown counsel jointly requested an exit pre-trial with the (then) preliminary inquiry judge. After the initial exit pre-trial had been conducted, defence counsel told the appellant that if the case proceeded to trial and convictions were recorded, the Crown would seek a penitentiary sentence of three to five years. Defence counsel explained that the trial judge considered a sentence of five years would be appropriate.

[58] In addition to the discussion about the sentence the Crown would seek on conviction after trial, the appellant and counsel discussed the NCR process. They had discussed this on prior occasions. Counsel explained that the judge was going to order an NCR assessment. This would take place in a hospital. The appellant would meet with doctors. The doctors would prepare a report for the judge. Counsel pointed out that if he (the appellant) were found NCRMD, he would remain at the hospital without a scheduled date for release. That release, counsel indicated, would depend on how well the appellant did in treatment. That release would be up to the ORB. The appellant agreed to proceed with the NCR assessment.

[59] When the trial judge made the assessment order, he explained to the appellant that the assessment was for the purpose of deciding whether the appellant was exempt from criminal responsibility for the offences with which he was charged.

[60] Counsel received the assessment report before the exit pre-trial resumed. He met with the appellant both before and after the exit pre-trial. He reviewed the report by summarizing the relevant portions including the “Mental Status Examination” and “Psychiatric Opinions and Recommendations”. The appellant appeared to understand the contents of the report, and that the report would be put before the judge and relied upon by him to decide whether he (the appellant) should be found NCRMD.

[61] Counsel repeated the discussions he and the appellant had earlier had about the NCR process. Counsel explained what would happen to the appellant when he came under the authority of the ORB. Counsel told the appellant that if he wished to go ahead with the NCRMD process, his trial in the criminal court would be over. His case would be transferred to the ORB.

[62] Counsel elaborated on what would happen in the courtroom if he wished to pursue the NCRMD process. The preliminary inquiry would be converted into a trial. The judge would be asked to apply the evidence given at the preliminary inquiry, along with some additional information. Defence counsel would not dispute that evidence. This meant that although the appellant would not be admitting that the evidence was true, he would not be offering any evidence or argument to contradict it. The judge would likely accept that evidence and base his decision on it.

[63] In their discussion, the appellant and counsel also spoke about the option of a trial. Counsel would have explained the appellant’s right to have a trial but also advised the appellant that he did not see any viable defence arising out of the evidence.

[64] In counsel’s view, the appellant understood his choices of trial and NCRMD. The appellant seemed engaged in the conversation with counsel and indicated that he wished to proceed along the path to a NCRMD verdict.

[65] When proceedings resumed in the courtroom, defence counsel indicated that the appellant wished “to avail himself of the NCR finding and proceed in that fashion today”. In answer to a question from the presiding judge, defence counsel indicated that the appellant would acknowledge and accept the contents and conclusions of the psychiatric report which counsel had reviewed and discussed with the appellant.

[66] The appellant confirmed defence counsel’s statement that he (the appellant) wished to have his case dealt with that day by the presiding judge. Defence counsel entered a plea of not guilty. The Crown asked that the trial judge consider the evidence that he had heard when presiding over the preliminary inquiry. Crown counsel then read a summary of the evidence of various witnesses who had testified at the preliminary inquiry and filed the psychiatric report prepared by Dr. Pytyck on the basis of the assessment order.

[67] Defence counsel indicated that he did not dispute the evidence adduced at the preliminary inquiry or the additional allegations of the Crown. The defence called no evidence and made no submissions.

[68] In brief reasons, the trial judge indicated his acceptance of the evidence adduced at the preliminary inquiry and the additional reports read in by Crown counsel. He found the appellant not guilty on two counts and entered acquittals. On the remaining counts, the trial judge found the underlying facts established to the standard of proof required, but that the appellant was not criminally responsible for that conduct on account of mental disorder.

[69] As proceedings concluded, the following exchange occurred:

THE COURT: So, the upshot of this is that you will be returned to the Ontario Shores facility, is that correct?

[DEFENCE COUNSEL]: That’s my understanding, Your Honour.

THE COURT: Okay.

[CROWN COUNSEL]: Yes, sir.

THE COURT: That was mine as well, and they will work with you there until such time as the Ontario Review Board reviews and disposes of your matter. That means that you will not ever have to face a judge and jury trial, this matter will be effectively concluded as far as this Court is concerned and I will be turning you over in effect to the Ontario Review Board.

I heard some very interesting evidence in this case, Mr. Anderson, I hope you are able to apply yourself to some of the things that were said in the report by Dr. Pytyck and hopefully we will not see you back in a place like this.

ANDERSON: No, that’d be great.

THE COURT: Any questions, Sir?

ANDERSON: No, Sir. No, Your Honour, I’m okay.

[70] In this case, the appellant was charged with several offences alleged to have been committed at his mother’s home in the presence of his mother and brother. Police responded to a 911 call made by the appellant’s mother and witnessed some of the alleged offences as they continued. On the evidence adduced at the preliminary inquiry, which formed part of the record on which the verdict was rendered, no viable defence emerged.

[71] No issue was raised about the appellant’s fitness to stand trial. He was represented by the same counsel throughout the proceedings with which we are concerned. The preliminary inquiry. The exit pre-trials. The order of an assessment to determine criminal responsibility. The re-election of mode of trial. The procedure to be followed. The consequences of that procedure. No claim of ineffective assistance is advanced.

[72] The appellant says that he did not understand that the hearing before the trial judge would result in a NCRMD finding without a trial. He did not intend to accept the facts based on the evidence adduced at the preliminary inquiry and the additional summary read by the Crown. Nor did he intend to accept Dr. Pytyck’s assessment and conclusion. He claimed an inability to recall any advice by trial counsel about the meaning, process or repercussions of a NCRMD finding.

[73] Trial counsel paints a very different picture. He and the appellant met and discussed the case before, during and after the preliminary inquiry during which the entirety of the case for the Crown was disclosed. Counsel also apprised the appellant of the discussions at the exit pre-trials. The sentencing position of the Crown and the judge — on conviction, a penitentiary sentence of three to five years — was also discussed.

[74] During discussions about the exit pre-trials, defence counsel explained that the judge intended to remand the appellant to a hospital for a psychiatric assessment of the appellant’s criminal responsibility. This issue was not new for counsel and client. They had previous discussions about it. The appellant raised no issue about the process to him.

[75] When counsel received the assessment report, he reviewed its significant features with the appellant and explained the NCRMD procedure and its consequences for the appellant. The appellant decided what he wanted to do.

[76] The affidavit of trial counsel satisfies us that when proceedings resumed in the courtroom after completion of the exit pre-trials, the appellant was sufficiently aware of the options available to him about how the case would proceed. He was acquainted with the NCR process, the likelihood of a NCRMD verdict and its consequences of hospitalization and supervision by the ORB. Indeed, some of these aspects had been reiterated in open court. He participated in the re-election of mode of trial and accepted entry of a plea of not guilty, both features that counsel had previously explained to him. He was not required to abandon his prior disavowal of the underlying events or the diagnosis or conclusion of Dr. Pytyck, as would have been the case had he entered a plea of guilty.

[77] The trial judge was not required to conduct a plea comprehension inquiry under s. 606(1.1) in the absence of a plea of guilty. Although it would have been preferable had the trial judge satisfied himself by inquiry of the appellant at the outset that the appellant was aware of the nature and effect of the proposed procedure, the affidavit of trial counsel satisfies us that the appellant’s participation was voluntary, informed and unequivocal. The appellant’s subsequent colloquy with the trial judge confirms as much.

[78] Nothing that occurred or failed to occur in the trial proceedings rendered those proceedings unfair or the NCRMD verdict unreliable.

Disposition

[79] For these reasons the appeal was dismissed.

Released: May 19, 2021 “DW” “David Watt J.A.” “Alexandra Hoy J.A.” “I.V.B. Nordheimer J.A.”