Court File and Parties

COURT FILE NO.: CR-20-50000041-00MO DATE: 20200507 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN Respondent – and – PERSON IN CHARGE, CENTRE FOR ADDICTION AND MENTAL HEALTH Respondent

• and - PHOENIX PANTON-SAWYERS Applicant

Counsel: Katherine Rogozinski, for the Crown Ian McCuaig, for the Applicant

HEARD: May 1, 2020

M. Dambrot J. :

[1] The applicant was convicted of the offences of assault and breach of probation in the Ontario Court of Justice on March 12, 2020. She had been arrested on June 4, 2019, and never released on bail. She was found unfit to stand trial on August 27, 2019, and a treatment order was made. On October 1, 2019, after being treated with anti-psychotic medication at the Centre for Addiction and Mental Health (“CAMH”), she was found fit to stand trial. However, the court had reasonable grounds to believe that she would become unfit if released, and as a result made a “Keep Fit” order pursuant to s. 672.29 of the Criminal Code that the accused be detained in custody at CAMH until the completion of her trial.

[2] On March 18, 2020, after finding the accused guilty of these offences, but before imposing sentence, upon the application of the Crown, the trial judge ordered an assessment of the mental condition of the accused pursuant to s. 672.11 of the Criminal Code. The purpose of the assessment was to determine whether the applicant was, at the time of the commission of the offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) of the Code.

[3] The accused now brings this application for a writ of habeas corpus ad subjiciendum, with certiorari and mandamus in aid, challenging the lawfulness of the March 18, 2020 assessment order, asking that it be quashed, and ordering that the accused be returned to the Ontario Court of Justice to be sentenced.

A Preliminary Procedural Issue Arising as a Result of the COVID-19 Emergency

[4] On March 15, 2020, in a Notice to the Profession, the Public and the Media, the Chief Justice of the Ontario Superior Court of Justice ordered the suspension of the regular operations of the Superior Court of Justice until further notice in order to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19). However, he also ordered that the court would continue to hear urgent matters during this emergency period.

[5] In a Notice to the Profession dated April 2, 2020 and revised on April 22, 2020, the Regional Senior Judge of the Ontario Superior Court of Justice, Toronto Region, established the Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic. That Protocol reaffirmed that urgent matters may continue to be heard by the court and designated a contact person for the scheduling of applications for extraordinary remedies.

[6] A Revised Toronto Protocol relating to criminal matters was issued on April 24, 2020. It provides that all applications for extraordinary remedies scheduled for April, May and June 2020 will proceed remotely through secure telephone lines, and arrangements may be made to permit applicants to attend through a conference line.

[7] This application has proceeded in accordance with the prevailing protocol. The matter was heard by teleconference, and the applicant attended through a conference line. However, this procedure led me to raise the following concern.

[8] An application for a writ of habeas corpus is a two-stage process. In the first stage the judge to whom the application is made may examine the application, and if no arguable point is raised, the judge may dismiss the application without the applicant being present. But if the grounds are arguable, the writ must issue, directing the person in charge of the applicant to have the applicant and the “cause” of the detention brought before the court. The court then determines the merits of the application on the return of the writ in the presence of the applicant, who has the right to present an argument. [1]

[9] In some cases, the formality of the issuance of the writ is dispensed with, and the judge simply orders the applicant to be brought before the court to make submissions. When the applicant is represented by counsel, the usual practice, at least in Ontario, is to collapse the two stages of the process into one, dispense with the issuance of the writ, have the applicant brought to court, and proceed with the merits of the application.

[10] It has usually been understood that in every case, whether or not there is a formal return of the writ, the applicant is required to be present when the merits of the application are argued. At one time, however, that requirement was apparently not free of controversy. In particular, [Rule 11 of the Ontario Supreme Court Rules Respecting Criminal Proceedings – Part I, SI/85-152] (as amended, was thought to permit not only the issuance and return of the writ, but also the presence of the detainee, to be dispensed with (see R. v. Olson (1987), 62 O.R. (2d) 321 (Ont. C.A.)). That thought was put to rest in 2002 when s. 774.1 of the Criminal Code was enacted: Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 77. Section 774.1 provides:

Despite any other provision of this Act, the person who is the subject of a writ of habeas corpus must appear personally in court.

[11] Section 774.1 was obviously intended to safeguard the interests of any person detained in custody who wishes to challenge the lawfulness of their detention. It ensures that they can exercise their right to be heard when the merits of the application are adjudicated. But in this case, the concern arose that the mandatory requirement that the person who is the subject of the writ “appear personally in court” could not be satisfied when, in response to a health emergency, the application was being heard by teleconference.

[12] It would, of course, be most ironic if a provision enacted to protect a detainee somehow thwarted their right to habeas corpus. Indeed, in the end it could not, having regard to s. 10(c) of the Canadian Charter of Rights and Freedoms, which provides that everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. However, I am satisfied that s. 774.1 does not preclude the hearing in this case, without resort to s. 10(c).

[13] I say this having regard to the manner in which this application was heard. It was, as I have said, heard by way of teleconference. Although the applicant made her submissions through counsel, she was a party to it, and acknowledged her presence. In addition, the application took place in a courtroom. Although neither counsel nor I were seated in the courtroom, a registrar and court reporter were in fact physically present, and the voices of all the participants were heard in the courtroom. I am satisfied that the virtual presence of the applicant in the courtroom sufficiently meets the requirement of s. 774.1 that she appear personally in court. Counsel for the applicant and the Crown agreed. In 2020, virtual presence in a courtroom must be seen as the functional equivalent of a personal appearance.

[14] Accordingly, s. 774.1 creates no bar to proceeding to hear this habeas corpus application. However, if I am wrong, and s. 774.1 is a bar to habeas corpus, there is no reason that this application could not proceed in any event as a certiorari application. The relief sought would be available on certiorari, and there is no requirement that an applicant for certiorari appear personally in court for the hearing. I would have heard this application as an application for certiorari in any event.

[15] Finally, although applications for prerogative relief in relation to interlocutory orders made in the course of criminal proceedings are generally not permitted, I was of the view that since there is no adequate alternative remedy available to the applicant to attempt to vindicate her claim not to be the subject of an assessment order, I would proceed to hear this application. In particular, the fact that the applicant would have a right to appeal from a finding that she is not criminally responsible based on the result of her assessment would in no way vindicate her right not to have her period of detention extended to permit an unlawful assessment, should I find that the order for assessment was unlawful, or lessen the intrusive nature of the assessment itself.

The Offences

[16] On June 4, 2019, the complainant, Nedra Douglas, met her friend, Rachel Hazzard, on the street. Ms. Hazzard was in the company of the applicant and several children, including Ms. Hazzard’s nine-year-old daughter, Naveah. Before Ms. Douglas arrived, the applicant was inexplicably preoccupied with Naveah, although she did not know her. Ms. Douglas and Ms. Hazzard each called Neveah over to them several times, but each time the applicant blocked Neveah from moving. The applicant kept following Naveah. At one point, the applicant referred to Neveah as her daughter, and told Ms. Douglas and Ms. Hazzard not to talk to her. She threatened them if they touched her. Neveah became very scared as a result of the applicant’s actions. Finally, Ms. Douglas began to leave with Neveah, at which time the applicant approached Ms. Douglas, pushed her to the ground, got on top of her and assaulted her. She tried to shove her fingers into Ms. Douglas’s eyes and bit her on the head. Ms. Hazzard yelled at the applicant to stop, screamed for help and, with difficulty, pulled her off Ms. Douglas. Ultimately the applicant left the scene and entered a building.

[17] P.C. Censoni and his partner attended the scene to investigate the assault. P.C. Censoni had dealt with the applicant on previous occasions. When the officers encountered her, she stood up, assumed a fighting stance, was loud and aggressive, had her fists clenched and warned them to keep their distance. She screamed, “Get the fuck away from me. Don’t fucking touch me. You know what will happen.” P.C. Censoni told her that she was under arrest for assault, approached her and grabbed her by her wrists. At this point the applicant became unresponsive. She did not acknowledge her right to counsel nor whether or not she wished the assistance of counsel. She did not make eye contact, and simply looked straight ahead. However, she became compliant, followed the officers to their car and got inside, while remaining non-verbal. P.C. Censoni described this behavior as being typical of the applicant in his experience with her. He testified that he thought that she understood what was happening.

The Procedural History of this Case

[18] The evidence adduced at trial established the following.

[19] When brought to court on June 5, 2019, no bail hearing was commenced. The applicant did not want legal representation, and amicus curiae was appointed to assist the court. The applicant subsequently refused to attend court on several occasions. On July 15, 2019, the court appointed counsel for the applicant to address fitness. Finally, on July 31, 2019, the court made an order pursuant to s. 672.12 of the Code to determine whether the applicant was unfit to stand trial. On August 27, 2019, the applicant was found unfit to stand trial, and a treatment order was made.

[20] In his treatment order report dated September 26, 2019, Dr. Patel, a staff psychiatrist at CAMH, concluded that the applicant was now fit to stand trial. He stated that when the applicant initially arrived at the hospital at the beginning of September, she was highly dysregulated and irritable, requiring placement in seclusion to ensure everyone’s safety. During administration of anti-psychotic medication, the applicant was assaultive towards staff and voiced paranoid thoughts including accusations that staff had raped her. Medication was administered to the applicant over the next several weeks, leading to significant improvement in her mental state.

[21] On October 1, 2019, after being treated with anti-psychotic medication at CAMH, the applicant was found fit to stand trial. However, the court had reasonable grounds to believe that she would become unfit if released, and as a result made an order pursuant to s. 672.29 of the Code that the applicant be detained in custody at CAMH until the completion of her trial (a “Keep Fit” order).

[22] A ninety-day bail review pursuant to s. 525 of the Code was scheduled to be heard on October 3, 2019 but was waived.

[23] The applicant’s counsel was not available on dates offered for trial in December 2019, and a January trial date was set. The January 2020 trial was adjourned at the applicant’s request when her lawyer was hospitalized. The trial proceeded on March 12, 2020. As I have noted, on March 18, 2020, after finding the accused guilty of these offences, but before imposing sentence, upon the application of the Crown, the trial judge ordered an assessment of the mental condition of the accused, and the Keep Fit order was renewed.

[24] Notice of this application was served and filed on April 20, 2020. On April 23, 2020, the NCR assessment order and the Keep Fit order were extended for an additional 30 days, and the assessment order was amended at the request of CAMH to allow any psychiatrist at CAMH to perform the assessment. The psychiatrist named in the original order was unable to attend the applicant’s unit due to restrictions prohibiting physicians not currently working on the unit from entering to curtail the spread of COVID-19. The applicant did not oppose the extension of the two orders or the amendment of the assessment order. The applicant is scheduled to appear next in the Ontario Court of Justice on May 21, 2020.

Evidence of the Applicant’s Criminal History

[25] The applicant admitted her criminal record. In the short period from August 8, 2016 to April 17, 2019 she has been convicted of aggravated assault of a peace officer twice, assault with a weapon three times, assault causing bodily harm once, assault with intent to resist arrest once, resisting a peace officer twice, assault fourteen times, break and enter twice, unlawfully in a dwelling house twice, theft under once, mischief under twice, uttering threats four times, fail to comply with a recognizance seven times, breach of a conditional sentence order twice, and fail to comply with a probation order twenty-two times.

Evidence of the Applicant’s History of Mental Disorder

[26] In addition to the evidence establishing the offences, the applicant’s criminal record and the trial judge’s knowledge of the procedural history of this matter, the Crown placed before him on its application for an assessment order the following evidence of her history of mental disorder.

[27] The applicant, who is 28 years old, was diagnosed with schizophrenia in 2014. Her mental health has been the focus of her sentencing proceedings since her first conviction in 2016, when she was sentenced for assault with a weapon after stabbing a 14-year-old boy. In a report prepared for that sentencing hearing, a psychiatrist concluded that the applicant posed “at least a moderate risk of harm to the public”. Since then, many of her offences were crimes of violence or threatened violence. An NCR assessment has been ordered once prior to this case, in May 2018, but the court sentenced the applicant without seeing the report because of a delay in its preparation.

[28] The mental health reports concerning the applicant prepared between 2016 and 2019 repeatedly reference her non-compliance with anti-psychotic medication while in the community. At her sentencing hearing for an assault causing bodily harm conviction in December 2018 the applicant admitted that she was not taking medication to treat her schizophrenia. The applicant was brought to the Emergency Psychiatric Unit of Humber River Hospital three times in March and April of 2019. Less than two months later, the applicant attacked Nedra Douglas, someone she did not know, for no rational reason.

The Test for an Assessment Order

[29] Section 672.11 of the Code, insofar as it has application here, provides:

A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine

(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);

[30] Section 16(1) of the Code provides:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

[31] In R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135, at para. 34, the Court of Appeal summarized the test in s. 672.11(b) in these words:

Ultimately, it must be remembered that for a judge to order an assessment under s. 672.11(b) does not require that there be reasonable grounds to believe that the accused is actually exempt from criminal liability – only that there be reasonable grounds to believe that further evidence of the accused’s mental condition is necessary to determine whether the accused is exempt from criminal liability.

[32] Section 672.12(3), insofar as it has application here, provides:

Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if

(a) the accused puts his or her mental capacity for criminal intent into issue; or

(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.

[33] As a result, in order to make the order that was made here, the trial judge had to be satisfied that: (1) there were reasonable grounds to doubt that the accused was criminally responsible for the alleged offence on account of mental disorder; and (2) there were reasonable grounds to believe an assessment of the mental condition of the accused was necessary to determine whether the accused is exempt from criminal liability.

The Test for Habeas Corpus

[34] Habeas corpus is not a formalistic remedy. Its purpose is to protect individuals against erosion of their right to be free from wrongful restraints upon their liberty. However, despite the flexibility of this writ, a successful application for habeas corpus still requires two elements: (1) a deprivation of liberty, and (2) that the deprivation be unlawful. A deprivation of liberty will only be lawful where it is made within the jurisdiction of the decision maker, where the decision-making process is fair and where the decision is compliant with the Charter (see May v. Ferndale Institution, 2005 SCC 82, 3 S.C.R. 809, at paras. 74-77).

[35] The position of the applicant in this case was that the deprivation of liberty here was unlawful because the trial judge made the assessment order without jurisdiction, on the basis of an absence of evidence. She explained, in her factum, that “the Order for assessment made on March 18, 2020 was made without jurisdiction for lack of evidence that creates reasonable grounds to believe that an assessment is necessary”. She reiterated this position later in her factum, stating that the trial judge was without jurisdiction to make the assessment order because “there was no evidence that justified the trial judge making an order for her assessment.”

[36] This formulation of the argument was appropriate. It is not open to me on this application to set aside the order on the basis that I would have reached a different conclusion than did the trial judge. That would not amount to a jurisdictional error. The trial judge would only have made a jurisdictional error if there was no evidence to support his conclusion, by which I mean no evidence before him upon which, acting judicially, he could have formed the opinion that the order was justified. An error by the trial judge in weighing or balancing in the scales, or in measuring or pondering and examining the force of evidence to determine whether or not it was sufficient to make an assessment order is an error made within jurisdiction and is accordingly not susceptible to prerogative review. The words of Estey J. in R. v. Dubois, [1986] 1 S.C.R. 366, at p. 377, albeit in respect to the decision to commit an accused for trial at a preliminary inquiry, apply equally to the making of an assessment order: “However, where there is some evidence, it is clearly within the justice’s jurisdiction to come to a decision as to whether that evidence is of sufficient weight to commit.”

Analysis

[37] The trial judge delivered thoughtful and thorough reasons for his decision to grant the order. Since I am not reviewing the sufficiency of his reasons, I will not summarize them. I will simply say that there was a significant body of evidence to support his decision, and if my task were to consider its reasonableness, I would conclude that it was reasonable. However, on the question that is mine to answer, that is, whether the trial judge had jurisdiction to make the assessment order, I conclude that he did. In other words, it is my view that there was evidence before him upon which, acting judicially, he could have formed the opinion that the order was justified. I will review the evidence briefly.

[38] First, there is the offence of assault itself. Put simply, after attempting to keep a nine-year old child away from her mother and her mother’s friend and threatening them if they touched the girl, the applicant violently attacked the friend, pushed her to the ground, attempted to gouge her eyes and bit her head. There could be no rational explanation for this assault. The only inference available on the evidence before the trial judge is that the applicant was suffering from a delusion that the child was hers.

[39] Second, the applicant has a history of violent conduct.

[40] Third, the applicant has an on-going history of mental disorder, beginning with a diagnosis of schizophrenia, a major mental illness, in 2014, when she stabbed a 14-year-old boy, followed by repeated references in mental health reports between 2016 and 2019 to her non-compliance with anti-psychotic medication while in the community, and three instances of being brought to the Emergency Psychiatric Unit of Humber River Hospital in March and April of 2019. The record clearly established that the applicant has suffered from mental illness for a significant period. Compounded by her propensity for cannabis use, her illness has been a destabilizing force, likely contributing to a lengthy history of troubles with the criminal justice system. This is exacerbated by her consistent failure to take anti-psychotic medication when in the community.

[41] It seems obvious to me that this evidence, considered cumulatively, was sufficient to ground the assessment order. It amounted to an evidentiary basis for the trial judge, acting judicially, to conclude that: (1) there were reasonable grounds to doubt that the applicant was criminally responsible for the alleged offence on account of mental disorder; and (2) there were reasonable grounds to believe an assessment of the mental condition of the accused was necessary to determine whether the accused is exempt from criminal liability.

[42] In his argument that the evidence was insufficient, counsel for the applicant approached the evidence on a piecemeal basis in an effort to avoid the conclusion I have reached. I will address some of the concerns he raised, keeping in mind that it is the cumulative effect of the evidence that is determinative.

[43] First, counsel for the applicant argued that the mere fact that a violent offence is unexplained does not justify an assessment order, and to view the matter otherwise puts an onus on the applicant to explain her actions. I begin by noting that I do not accept this characterization of the offence. This is not an unexplained act of violence. Rather, it is an act of violence that could have no rational explanation. The victim was not known to the applicant. The applicant was obviously not the mother of the child to whom she was directing her attention. There was no history, no build-up, no heated exchange, no physical provocation, nothing to inform a “rational explanation” for the applicant to initiate a physical assault on the victim. The one possible explanation for the assault that arises from the evidence is that it resulted from a delusion, which is a material fact that is relevant to raising a doubt that the applicant was criminally responsible and is capable of contributing to a belief that an assessment was necessary to determine the issue. This is not simply speculation, as the applicant would have it. There is evidence that can support a delusional explanation for the applicant’s conduct, making criminal responsibility a live issue. This evidence is not defeated by the applicant’s history of anger management issues. Viewing the matter this way places no onus of explanation on the applicant.

[44] Second, counsel for the applicant says that the fact that the arresting police officer testified that upon his intervention the applicant abruptly dropped her aggressive stance and became compliant demonstrates that she was not suffering from a delusion. He submitted that mental states do not fluctuate so quickly, and that her compliance demonstrates that she knew she had done something wrong. Whether or not these submissions are psychiatrically or factually sound is not for me to say. But in any event, it was for the trial judge to draw whatever inference he considered appropriate from the officer’s evidence. Certainly nothing compelled him to see it as somehow defeating whatever other inferences he drew from the totality of the evidence. It was simply one of the items of evidence that he was entitled to consider.

[45] Third, counsel for the applicant argued that the fact that someone suffers from a major mental illness does not mean that the test for assessment is met each time that person commits an offence. I agree. But that is not this case. Counsel for the respondent put it well. She stated, in her factum:

The mere presence of a diagnosis for a mental disorder, however, is not sufficient to raise a doubt about the Applicant’s criminal responsibility. The “doubt” being raised must be framed in terms of the elements of the section 16 NCR test: does the evidence of a mental disorder in this case raise a doubt with respect to whether the Applicant understood the natural consequences of her actions or whether she knew what she was doing was wrong?

[46] I agree with the respondent, and I further agree that in this case, on the basis of the totality of the evidence, the trial judge was entitled to have such a doubt.

[47] In the end, it seems to me that the applicant’s argument is an invitation to me to draw a different conclusion from the evidence than did the trial judge. It is really a submission about the weight of the evidence and the inferences that can be drawn from it. These are matters within the jurisdiction of the trial judge. It cannot be said that there was no evidence before the trial judge upon which, acting judicially, he could have formed the opinion that the order was justified. There was no jurisdictional error.

Disposition

[48] The application is dismissed.

M. DAMBROT J.

RELEASED: May 7, 2020

REASONS FOR DECISION DAMBROT J.

RELEASED: May 7, 2020

[1] See Ex parte Durocher, [1966] 2 O.R. 244 (H.C.); Ex parte Johnson, [1968] 4 C.C.C. 225 (B.C.C.A.); R. v. Olson (1987), 62 O.R. (2d) 321 (Ont. C.A.), aff’d , [1989] 1 S.C.R. 296.