Court File and Parties

Court File No.: CR-17-0278 Date: 2020-08-14 Superior Court of Justice - Ontario

Re: R. v. Robert John Watts

Before: Honourable Mr. Justice Gary W. Tranmer

Counsel: Jennifer Ferguson, Counsel, for the Crown J. David Crowe, Counsel, for the Defendant

Heard: July 13 and 16, 2020

Endorsement

The Issue

[1] At issue is whether a judge sitting alone without a jury, following a jury verdict, can hear and decide the issue of not criminally responsible.

Jury Verdict

[2] Robert John Watts, born May 25, 1992, was tried by a court composed of a judge and jury on the charge that on the 17th day of September 2015, he committed second-degree murder on the person of his father.

[3] At trial, the Crown and defence agreed that the issue for the jury to decide was whether the Crown had proven beyond a reasonable doubt that Mr. Watts had either of the states of mind required for murder. Crown and defence agreed that there were only two possible verdicts that should be left to the jury to consider namely, guilty of second-degree murder or guilty of manslaughter. On September 17, 2019, the jury returned a verdict of not guilty of second-degree murder but guilty of manslaughter.

[4] A conviction has not yet been endorsed on the indictment.

Background

[5] Prior to the end of the trial, Defence counsel had consistently indicated during trial management conferences that he would raise the issue of not criminally responsible (“NCR”) following trial regardless of the jury verdict. The Crown took the position that the evidence did not support such a finding. The defence intended to conduct a two-stage trial, with the NCR issue to be raised after the initial jury verdict. There was no expert psychiatric evidence tendered during the first stage of the trial, although there was evidence from the arresting police and Mr. Watts’ mother and sister about peculiar things he said and odd behaviour on his part. Dr. Milroy testified as to what the medications prescribed to Mr. Watts would be intended to treat and how he would act if he did not take his medications.

[6] A fitness hearing had been held in the Ontario Court of Justice. By Order dated January 24, 2017, Justice O’Brien determined that Mr. Watts was fit to stand trial and he was ordered to be detained in custody at Providence Care Centre, a mental health treatment institution, until the completion of his trial, pursuant to section 672.29 of the Criminal Code. That Treatment Order remains in force and he continues to be held in the custody of that hospital institution.

[7] After the jury verdict of manslaughter, defence counsel advised that he did not intend to advance the NCR application. The Crown continued to oppose an NCR finding.

[8] When Crown counsel was told about the defence decision to abandon the NCR issue, she sought to initiate dangerous offender proceedings, and the date of January 3, 2020 was set for the hearing of the Crown application for an order for assessment pursuant to s. 752.1(1) of the Criminal Code.

[9] As a result of the foregoing, the jury was discharged after rendering their verdict, on September 17, 2019.

[10] At the request of Crown and defence counsel, the matter was brought forward to December 18, 2019 so that the matter could be addressed at the next assignment court of December 20, 2019. At that time, on consent, counsel vacated the January 3, 2020 date, and agreed to adjourn the matter to February 14, 2020, to be spoken to with respect to setting a date for hearing on the NCR issue. At that point, the court raised the issue as to whether the jury was required to hear and adjudicate the NCR portion of the trial. Trial counsel were represented by agents at that assignment court and the agent appearing for defence counsel advised Crown and defence in writing that the court required counsel to provide authority for the position that they were advancing to the court, namely that a judge sitting alone without a jury could now determine the NCR issue.

[11] The matter was further adjourned on consent, and a case management conference was ordered by the court and held on June 1, 2020. Counsel were again requested to file legal briefs concerning their position that a judge alone could decide the NCR issue.

[12] Counsel have now filed written submissions on the issue. On consent, oral submissions were made remotely in view of the COVID-19 pandemic and the restrictions placed on in-court hearings. Crown and defence counsel and Mr. Watts participated in this hearing.

[13] Also, as a result of the COVID-19 pandemic, at this point in time, the continuation of jury trials remain suspended until, at the earliest, September 15, 2020, by Order of the Chief Justice. Limited in-court judge alone hearings have been permitted commencing July 6, 2020 in a limited number of designated courthouses and courtrooms in Ontario.

Position of the Parties

[14] Counsel submit jointly that I have the jurisdiction sitting as a judge without a jury to hear and adjudicate the NCR issue. Counsel submit that if I find that I have such jurisdiction, they will jointly submit that the evidence that will be put before the court on the issue will support a finding of NCR and that both counsel will be submitting that the court should make that finding. Counsel also submit that they will be jointly supporting a finding by the court that Mr. Watts is a high risk accused pursuant to s. 672.64 of the Criminal Code.

[15] Counsel further agree that the court can conduct the NCR hearing remotely, without the necessity of in-court attendances. On consent of counsel, this hearing has been set for Thursday, September 24, 2020 at 10:00 AM by video platform, in view of the decision that I have reached on this jurisdictional issue.

[16] Defence counsel submits that the jurisdiction of a Superior Court judge alone is based on the inherent historical jurisdiction of the court to do justice between the parties unless otherwise limited by statute law.

[17] Crown counsel submits that the joint submission by counsel involves considerations of trial fairness, the ability of Mr. Watts to make full answer and defence and engages the principles of fundamental justice enshrined under section 7 of the Canadian Charter of Rights and Freedoms.

[18] Also relevant is the Supreme Court of Canada decision in R. v. Anthony-Cook, 2016 SCC 43 where the Court set out the principles governing the trial judge’s consideration of a joint submission made by counsel.

[19] Crown and defence counsel submit that this is not a case where this court should declare a mistrial and that it is not a case where an attempt should be made to recall the jury.

[20] Crown counsel relies on R. v. Gares, [2018] O.J. No. 4002 (SCJ) as supporting the importance of consent of the parties when a Superior Court is looking for a creative solution to a procedural problem.

[21] Crown counsel also relies on R. v. Goudreau, (2019) ONCA 964 where the court ordered a new trial on the second stage issue of whether the appellant was not criminally responsible by reason of a mental disorder for killing his mother. Although the original decision at trial had been that of the jury, it appears that the NCR issue on the new trial was to be heard by a judge without a jury.

[22] Crown counsel also relies upon s. 644(3) of the Criminal Code which provides for the continuation of a trial without a jury where Crown and defence consent, in a situation where the number of jurors is reproduced below 10. Crown counsel submits that in Mr. Watts’ case, the jury having been discharged, reduces the number of jurors to below 10.

[23] Defence counsel and Crown counsel each support the submissions made by the other on this issue.

[24] At the request of the court, counsel made submissions on four other cases, namely, R. v. Pietrangelo, [2008] O.J. No. 2236 (OCA), R. v. Richmond, 2016 ONCA 134, R. v. Goudreau, 2015 ONSC 6758 and R. v. Robertson, ONCA 463.

[25] In Richmond, the court made the relevant comment at para. 91, “nor did it (defence) seek an NCR hearing by a judge alone”.

[26] In Goudreau (2015 ONSC 6758), defence counsel raised the NCR issue for the first time after the jury verdict but before the jury was discharged. Justice Smith ordered the psychiatric assessment requested by defence but expressed concern about the significant delay that conducting the assessment would have on the jury. He set time limits for the assessment and the issue was ultimately heard and decided by the jury.

[27] In Robertson, the jury had been discharged but approximately two years later the issue arose as to whether the accused was NCR at the time of the offences. The judge determined that he had no jurisdiction to determine that question at that time. On appeal, both amicus curiae and the Criminal Lawyers’ Association of Ontario argued that the trial judge had jurisdiction to address the question as to whether the appellant was NCR after the jury had been dismissed. A significant difference in that case to Mr. Watts’ case is that in Robertson, the Crown opposed that position and a finding of NCR. The Court of Appeal found that the fresh evidence could reasonably be expected to have affected the result had it been introduced before the jury. “Moreover, the trial judge is much better positioned to decide the question as the doctors could be called to explain their opinions”. The court allowed “the appeal, set aside the convictions and directed a new trial”.

[28] The Crown points out that in Pietrangelo, the Court of Appeal granted the Crown’s request to introduce fresh evidence, setting aside the appellant’s conviction and substituting a verdict of not criminally responsible on account of mental disorder. The Crown points out that the court held that on the basis of well-established principle, it can never be in an accused’s interest to be wrongly convicted. It was not an abuse of process for the Crown to seek a reversal of the conviction by substituting a verdict of NCR. The Crown in Mr. Watts’ case points out that with regard to the public interest, the court said, “Entering an NCRMD finding on the evidence now before this court would, in my opinion, serve three important purposes deeply rooted in our law, all of which must be balanced with the appellant’s interests and individual rights. Those purposes are: 1. Maintaining the principle of fundamental justice that the criminal justice system not convict a person who was insane at the time he or she committed and offence; 2. Protecting the public from presently dangerous persons requiring hospitalization; and 3. Recognizing the public interest of having serious criminal charges resolved on the merits and with finality”. Para. 79.

[29] Crown and defence counsel submit before me that each case supports their joint position that I have jurisdiction as a judge alone to hear the NCR issue.

[30] At the conclusion of this remote hearing on the issue before me, I advised counsel that I accepted their joint submission that I have jurisdiction to hear the NCR issue and that I would do so, and that written reasons for my decision would be forthcoming. These are those written reasons.

Analysis

[31] As stated by Justice Smith in Goudreau (2015 ONSC 6758):

1. The defence of mental disorder concerns the mental capacity of an accused to commit a criminal act. The defence is premised on the notion that a person who is not rational and autonomous should not be liable for punishment when he or she commits what would otherwise be a crime.
2. Persons who have committed a crime but lack criminal responsibility because of a mental disorder are not held legally responsible for what they have done but may nevertheless pose a serious danger to society. When criminal law intersects with mental health issues a delicate balancing act is necessary involving respect for the individual needs of an accused and the protection of society.
3. McLachlin J., as she then was, commented on this balance when she said: ...Instead of the stark alternatives of guilt or innocence...the [non-criminally responsible] accused is to be treated in a special way in a system tailored to meet the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately. Under the new approach, the mentally ill offender occupies a special place in the criminal justice system; he or she is spared the full weight of criminal responsibility, but is subject to those restrictions necessary to protect the public. [[Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 30]](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii694/1999canlii694.html)
4. Accused persons who come within the definition of mentally disordered are neither acquitted nor convicted - they are found "not criminally responsible" and once so found are not sentenced but are held for a disposition hearing that considers both their individual health needs and the risks that releasing them poses to society.

[32] Defence counsel has maintained from the outset of the proceedings in this Court, except for a brief time immediately following the jury verdict, that a proper and just finding in this case is that Mr. Watts is not criminally responsible for what he did to his father. Although Crown counsel initially opposed such a finding, Crown now agrees with the defence position based on the available evidence which will be presented to the court.

[33] I must respect that this is a joint submission made by senior and experienced Crown and defence counsel. The submissions of counsel are supported in law and reflect no error in principle. The proposed joint position of counsel does not bring the administration of justice into disrepute and it is not contrary to the public interest.

[34] I take into consideration the delay that has already occurred in bringing this proceeding to a conclusion. Even if the jury had not yet been discharged, and could be recalled to consider the NCR issue, the COVID-19 pandemic impact on court operations would further delay this case indefinitely.

[35] I agree with counsel that their joint submission engages trial fairness, the ability of Mr. Watts to make full answer and defence and the principles of fundamental justice.

[36] I agree with counsel that the cases cited by them to me support their joint submission and in particular, are consistent with the principles articulated by Justice Smith in Goudreau (2015 ONSC 6758) and by the Court of Appeal as set out in particular, in Pietrangelo.

[37] I agree with Crown counsel, “In the case at bar, an NCR verdict could be viewed as the likely eventual result in Mr. Watts’ case. However, it would not be desirable to have Mr. Watts sentenced and require him to proceed to the appeal process, have the matter sent back (for retrial on the NCR issue by a judge alone) and have a retrial prior to this verdict becoming a reality. Both Crown and defence submit that it would be desirable in the interests of justice to identify a principled way for this Court to reach that result now”.

[38] I further rely on the principles set out in R. v. Caron, 2011 SCC 5 at para. 24, that this Court has jurisdiction to craft a remedy that is in accordance with the principles of fundamental justice, where one is not specifically provided, but not specifically precluded. “The inherent jurisdiction of the provincial superior courts, is broadly defined as “a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so” ... to enable “the judiciary to uphold, to protect and to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner.”

[39] Section 644(3) of the Criminal Code is further support for my decision. As the Crown puts it, “a purposive interpretation of the section would appear to serve the interests of justice in this case”.

[40] I acknowledge that consent of counsel cannot confer jurisdiction or power where there is none in law.

[41] For these reasons, I accept the joint submission by Crown and defence counsel that I have jurisdiction as a judge sitting without a jury, following discharge of the jury, to hear and adjudicate the NCR issue.

Honourable Mr. Justice Gary W. Tranmer Date: August 14, 2020