Her Majesty the Queen v. Ta [Indexed as: R. v. Ta]

58 O.R. (3d) 737

[2002] O.J. No. 1453

Docket Nos. C24508 and C25948

Court of Appeal for Ontario

Laskin, Rosenberg and Moldaver JJ.A.

April 22, 2002

Criminal law -- Mental disorder -- Accused did not rely upon defence of not criminally responsible on account of mental disorder at trial -- Accused convicted of attempted murder and other offences -- Accused appealed -- After conviction accused's serious long-term mental illness became apparent -- Crown agreed that appeal should be allowed and verdict of not criminally responsible on account of mental disorder substituted for conviction -- Accused too mentally ill to participate in his appeal -- Court had jurisdiction to hear appeal despite accused's lack of competence -- Appeal allowed and verdict of NCR substituted for conviction.

Criminal law -- Appeals -- Whether appellate court has jurisdiction to entertain appeal when accused not competent to instruct counsel at time of appeal -- Accused convicted of serious offences including attempted murder arising from shooting spree at high school -- Some concerns about accused's mental health but accused found fit to stand trial -- Accused did not rely upon s. 16 of Criminal Code (not criminally responsible at time of offence) -- Accused appealing against his conviction and sentence but not raising issue of mental disorder in notice of appeal -- Accused too mentally ill at time of appeal to instruct counsel -- Court appointing amicus curiae -- Fresh evidence admitted on appeal proving that accused suffering from mental disorder and was not criminally responsible at time of offence -- Pre-trial procedures for unfit accused inapplicable on appeal -- Appellate court having jurisdiction to entertain appeal despite accused's mental state so long as accused's rights adequate ly protected as was done in present case -- Appeal allowed and verdict of not criminally responsible on account of mental disorder substituted.

The accused was charged with attempted murder and other offences following a shooting rampage in his high school. Before trial there was some concern about his mental status, but he was found fit to stand trial, and he did not rely upon the defence of not criminally responsible on account of mental disorder under s. 16 of the Criminal Code, R.S.C. 1985, c. C- 46. The accused was convicted and sentenced to 20 years' imprisonment. He appealed. On appeal, his lawyer became concerned about his mental health and about the possibility that a s. 16 defence should have been raised at trial. Psychiatric assessments were ordered by amicus curiae and the Crown. The accused was diagnosed as suffering from paranoid schizophrenia, and both psychiatrists concluded that the accused was not criminally responsible by reason of mental disorder at the time of the offences. In view of this fresh evidence, the Crown took the position that the appeal should be allowed and a finding of not criminally responsible ("NCR") substituted for the convictions. However, the accused was so mentally ill that he was unable to participate in the appeal.

Held, the appeal should be allowed.

An accused does not have to be mentally competent in order for the court to have the jurisdiction to deal with his or her appeal. The elaborate procedure in the Criminal Code for dealing with fitness to stand trial has no equivalent at the appellate level. Parliament apparently did not think it a necessary prerequisite for the court to deal with an appeal that the appellant be competent to understand the proceedings. Moreover, several of the appeal rights are predicated on the possibility, if not probability, that the appellant is not competent. Section 675(3) of the Code gives an accused found unfit to stand trial the right to appeal against that finding. Nothing in the appellate scheme requires that the offender be fit before he or she can prosecute the appeal. Further, s. 686(1)(d) allows the court of appeal to allow an appeal from conviction and find the appellant unfit to stand trial. It is well within the realm of possibility that the offender could be incompetent throughout the appellate proceedings leading to such a disposition. Finally, s. 676(3) gives the Crown the right to appeal against a finding that the accused was unfit. Again, there is no prerequisite that the accused be found fit before the Crown can proceed with the appeal.

While it is open to an appellate court to deal with an appeal by an unfit appellant, the court must accord the appellant sufficient procedural protections to ensure that he or she is dealt with fairly. In this case, the accused's rights were thoroughly protected.

As the fresh evidence established to the requisite standard of proof that the accused was not criminally responsible by reason of mental disorder at the time of the offence, the appropriate order was to quash the conviction and to substitute a verdict of not criminally responsible on account of mental disorder ("NCRMD"). To order a new trial would merely postpone the inevitable since it was virtually certain that the accused would be found NCRMD on a new trial.

APPEAL by an accused from a conviction.

R. v. Mailloux, 1988 27 (SCC), [1988] 2 S.C.R. 1029, 30 O.A.C. 358, 89 N.R. 222, 45 C.C.C. (3d) 193, 67 C.R. (3d) 75, folld R. v. Irwin (1977), 1977 2071 (ON CA), 36 C.C.C. (2d) 1 (Ont. C.A.), distd Other cases referred to R. v. Pan, R. v. Sawyer, 2001 SCC 42, 200 D.L.R. (4th) 577, 270 N.R. 317, 85 C.R.R. (2d) 1, 155 C.C.C. (3d) 97, 49 C.R. (5th) 203; R. v. Pietrangelo (2001), 2001 24058 (ON CA), 152 C.C.C. (3d) 475 (Ont. C.A.); R. v. Reale, 1973 55 (ON CA), [1973] 3 O.R. (2d) 905, 13 C.C.C. (2d) 345 (C.A.), affirmed 1974 23 (SCC), [1975] 2 S.C.R. 624; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, 47 O.A.C. 81, 125 N.R. 1, 3 C.R.R. (2d) 1, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253; R. v. Taylor (1992), 1992 7412 (ON CA), 11 O.R. (3d) 323, 13 C.R.R. (2d) 346, 77 C.C.C. (3d) 551, 17 C.R. (4th) 371 (C.A.); R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, 59 B.C.L.R. (3d) 47, 233 N.R. 319, [1999] 6 W.W.R. 372, 130 C.C.C. (3d) 259, 21 C.R. (5th) 75 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 2, 16, 608.2, 613(1), 650(1), 672.11, 672.25, 672.45, 672.46, 672.47, 675, 676(3), 686(1), 688

Melvyn Green, amicus curiae. Graeme Cameron, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: -- This appellant is presently serving a sentence of 20 years' imprisonment following his conviction on two counts of attempted murder, two counts of using a firearm while committing an indictable offence and one count of possession of a prohibited weapon. Locke J. imposed these sentences on February 23, 1996. The appellant promptly launched an inmate appeal from both conviction and sentence, alleging that the verdicts are unreasonable and that the sentence is harsh and excessive.

[2] At the trial, there was some concern about the appellant's mental status, but he was found fit to stand trial. There is no reason to doubt the correctness of that finding. The appellant did not rely upon the defence of not criminally responsible on account of mental disorder under s. 16 of the Criminal Code, R.S.C. 1985, c. C-46. For reasons that I will set out below in more detail, it has become clear that the appellant is seriously mentally ill. This court made several orders that have resulted in reports from two highly qualified psychiatrists. For slightly different reasons, they have concluded that the appellant was not criminally responsible within the meaning of s. 16. The Crown agrees that the appeal should be allowed, the convictions quashed and verdicts of not criminally responsible on account of mental disorder (NCRMD) be substituted.

[3] There is one problem. The appellant is so mentally ill now that he is unable to participate in his appeal. The question is whether, in these circumstances, this court is powerless to correct an obvious injustice and substitute the verdicts that should have been found at trial. I am satisfied that we have the jurisdiction to make the order sought by the Crown and that it is in the interest of justice to do so. I will explain why.

The Facts of the Offences

[4] In the fall of 1994, the appellant was 27 years of age and a mature student at Brockton High School in Toronto. He had been a student at the high school since September 1993. During this time, he had been in contact with the two victims, Dennis Hunt and Ron Dagilis. Both men were guidance counsellors at the school and Mr. Hunt was also the acting vice-principal. The appellant saw the victims for various administrative matters. On more than one occasion, he approached Mr. Dagilis about his marks, which he believed were too low. The appellant also complained to Mr. Hunt that he had not been given all of the academic credits to which he was entitled.

[5] On the morning of October 20, 1994, the appellant entered the school with a sawed off .22 calibre assault rifle. He first went to the guidance office and shot Mr. Dagilis. He then walked down the corridor to the vice-principal's office and shot Mr. Hunt. The appellant took several shots at each man. Mr. Dagilis was shot in the chest. Mr. Hunt was shot in the neck and the leg. Both men were very seriously wounded. It was not entirely clear at trial whether there was a particular incident that sparked the appellant's conduct, except that the appellant had again been to see Mr. Dagilis to complain about his marks several weeks before October 20th.

[6] The appellant ran from the school. He was apprehended by a police officer a short time later. He was still in possession of the rifle and ammunition.

[7] The only issue at trial was whether the appellant had the requisite specific intent for murder. Through counsel, the appellant conceded all of the other elements of the offences. As I have stated, the appellant did not rely upon a s. 16 defence. He did not testify. The trial judge reviewed all of the evidence and concluded that the appellant did have the specific intent for murder. Were it not for the fresh evidence to which I will refer later, there would be no basis for interfering with the convictions.

Fitness to Stand Trial

[8] On November 21, 1994, Dr. Hy Bloom saw the appellant at the Toronto Jail for a psychiatric assessment. The appellant was guarded and evasive and had difficulty communicating. The appellant exhibited disordered thinking and claimed to be justified in shooting the victims. In Dr. Bloom's opinion, the appellant was not fit to stand trial. The appellant was remanded to the Forensics Division of the Centre for Addiction and Mental Health (METFORS) for a 60-day assessment. In a report dated February 20, 1995, the attending psychiatrists Dr. Ben-Aron and Dr. Jacques gave the opinion that the appellant's fitness to stand trial was "doubtful" and that conceivably he had a s. 16 defence. During their interview, the appellant had laughed inappropriately, become preoccupied with a smoke detector and said that something was wrong with his head. He was still insisting that his actions were justified.

[9] On March 27, 1995, a fitness hearing was held before Hogg Prov. Ct. J. and the appellant was found fit to stand trial prior to his preliminary hearing, notwithstanding Dr. Ben- Aron's opinion that he was unfit. On April 5, 1995, the appellant was remanded to METFORS and was seen again by Dr. Ben-Aron and Dr. Jacques. During that meeting, the appellant reported auditory hallucinations and talked to himself in Vietnamese. Dr. Ben-Aron and Dr. Jacques concluded that the appellant was suffering from schizotypal and paranoid personality traits but that his fitness to stand trial was no different than it was in March.

[10] In January 1996, Dr. Bloom saw the appellant for a psychiatric reassessment. The appellant again presented as evasive and guarded with disordered thinking. He did not think his lawyer was helping him and expressed confidence that as soon as the judge heard his story, he would be released. The appellant insisted that he was not mentally ill and refused to take medication.

[11] But in fact, the appellant's condition had deteriorated since Dr. Bloom's first meeting with him. In this second meeting, he was hostile. His mental function had deteriorated. He seemed unable to understand the nature of the charges he was facing. He was confused, vague and contradictory. His thinking was fragmented and tangential. Dr. Bloom again concluded that the appellant was not fit to stand trial.

[12] Dr. Peter Collins saw the appellant after Dr. Bloom. In a report dated January 23, 1996, he diagnosed the appellant as suffering from schizophrenia but fit to stand trial. Dr. Bloom saw the appellant again on January 25, 1996. He was surprised to find that the appellant was now fit to stand trial although he could not say how long this state could be sustained. Locke J. held a fitness hearing on January 25 and 26, 1996 and a jury found the appellant fit to stand trial. The appellant re- elected trial by judge alone and in early February the trial on the merits commenced before Locke J. who, on February 13, 1996, found the appellant guilty on all five counts.

The Appeal Proceedings

[13] The appellant filed an inmate notice of appeal against conviction and sentence a few weeks after sentencing. He indicated in the notice of appeal that he desired to present his case and argument "in person". He applied for legal aid to fund counsel for his appeal. On November 7, 1996, Mr. Melvyn Green filed a solicitor's notice of appeal with respect to sentence. Legal Aid had agreed to fund only a sentence appeal. The conviction appeal remained as an inmate appeal. Mr. Green perfected the sentence appeal and the Crown perfected the inmate appeal. The inmate appeal was to be heard in Kingston on April 22, 1998 and the sentence appeal in Toronto on April 23, 1998. When he appeared before the court on April 22nd, the appellant did not seem to understand the nature of the proceedings and the conviction appeal was adjourned. The following day, the sentence appeal was adjourned and the Court of Appeal appointed Mr. Green as counsel for the appellant on the conviction appeal.

[14] Mr. Green became concerned about the appellant's mental status and that he may have had a s. 16 defence that should have been advanced at trial. Throughout 1999, Mr. Green made an extensive investigation of this issue, without any cooperation from the appellant. At his request, I made an order on March 2, 2000 for another assessment by Dr. Bloom. The appellant refused to speak to Dr. Bloom. Based on his observations of the appellant and discussions with staff at Kingston Penitentiary, Dr. Bloom concluded that the appellant was suffering from paranoid schizophrenia and was "markedly, and obviously chronically paranoid". He found as follows:

Mr. Ta's inability to cooperate, which I reiterate is entirely the result of psychosis, is so marked that there is no way that he could instruct counsel or receive and process advice from counsel. There is in essence no presence on Mr. Ta's part in these proceedings. Although he is technically a participant, he is in reality a non-participant.

[15] Mr. Green was unable to obtain instructions from the appellant and at his request on April 18, 2000, a panel of this court removed him as counsel of record and appointed him as amicus curiae. At that time, the court made an order for a 60- day assessment to determine if the appellant was not criminally responsible at the time of the offences. A further order was made because more time was required to properly assess the appellant. The assessment was conducted by Dr. Bloom and Dr. Philip Klassen. Dr. Klassen is the attending psychiatrist and head of the Forensic Consultation Service, Centre for Addiction and Mental Health. The assessment was conducted at the Centre.

[16] Dr. Klassen and Dr. Bloom have provided lengthy and detailed reports. For slightly different reasons, both psychiatrists have concluded that the appellant was not criminally responsible by reason of mental disorder at the time of the shootings. I will summarize those findings below. The most encouraging aspect of their reports is the appellant's dramatic response to anti-psychotic medication administered at the Centre based on the consent from a member of the appellant's family as a substitute decision maker. Regrettably, the appellant believes that he does not require medication and said that he would refuse to take it once he was returned to prison. That is what has happened and the appellant has apparently deteriorated to his former state.

[17] Drs. Bloom and Klassen provided their reports to the court in November 2000. They were cross-examined on their reports in January 2001 by Crown counsel and Mr. Green. Crown counsel prepared a "Book of Fresh Evidence" containing the reports and the transcripts of the cross-examinations. Crown counsel wrote a letter to the appellant explaining the contents of the fresh evidence. She also stated that in view of the fresh evidence, the Crown would take the position at the appeal that the appeal should be allowed and a finding of not criminally responsible substituted. She also in clear and simple terms explained the consequences of such a finding. Finally, in the letter, Crown counsel stated that the appeal would be spoken to on June 27, 2001, to permit the appellant to state how he wished to proceed with the appeal and whether he wished to retain a lawyer to cross-examine the psychiatrists and argue the appeal. The appellant refused to accept service of this book. An official at the penitentiary attempted to find out what the appellant wanted to do about his appeal. He refused to speak to her except to say that he believed his appeal had been dealt with. He refused to sign a notice of abandonment. He was described as "mentally unstable". A second attempt to send the material also failed because the appellant would not accept service. The appellant refused to attend court on June 27, 2001. The court adjourned the appeal to November 27, 2001.

[18] In early November, Crown counsel made another attempt to serve the material on the appellant. She enlisted the assistance of an officer in the penitentiary, who made a concerted effort to have the appellant accept the material and deal with his appeal. The appellant refused and told the prison officials that he did not want anything to do with his appeal. However, when presented with a notice of abandonment, the appellant refused to sign it.

[19] On November 27, 2001, the appeal came before this court. We were informed that the appellant would not be appearing. Crown counsel submitted that, based on the fresh evidence, the appeal should be allowed and a verdict of not criminally responsible on account of mental disorder be substituted. Mr. Green, as amicus, initially joined in that position.

[20] We reserved our decision and asked counsel for further written submissions. We were concerned about the effect of the appellant's absence and so asked counsel to provide written submissions on whether the court had jurisdiction to act in the absence of the appellant (physically and mentally) and whether it would be preferable to order a new trial rather than enter a verdict of not criminally responsible. We have received those submissions. Crown counsel submits that we do have jurisdiction to substitute the not criminally responsible finding and should do so. Amicus submits that we should allow the appeal but order a new trial.

The Fresh Evidence

[21] Even while on anti-psychotic medication, the appellant was not particularly cooperative. The psychiatrists were, however, able to piece together the appellant's background and form opinions about his mental state. It is apparent now that the appellant was suffering from paranoid schizophrenia probably since the early 1990s but was able to hide the symptoms from his family and others. The psychiatrists are satisfied that the appellant was not criminally responsible at the time of the shooting. They are both of the view that, because of his mental disorder, the appellant was not able to appreciate the moral wrongfulness of his actions.

[22] Dr. Bloom believes that the appellant harboured a distorted altruistic view that taking a "proactive violent and retributive approach towards [the victims] would send a resounding message to other teachers who were prepared to manipulate and harass their students". He is of the belief that the appellant was motivated by his "psychotically mediated persecutory feelings" and that he felt morally justified in his actions.

[23] Dr. Klassen is of the opinion that the appellant's thinking at the time was so delusional that he believed he was being threatened and manipulated by some malevolent force that at some point assumed the identity of the victims. The appellant therefore believed that he had to respond with violence to this force that was threatening him. He thus believed that he was morally justified in shooting the victims.

[24] The psychiatrists were satisfied that the appellant was not malingering. To the contrary, he has done everything in his power to try and hide his illness from mental health professions. He is not likely to improve without treatment and the longer the appellant remains untreated the more difficult it will be to treat him. The appellant presently represents a high risk to re-offend, especially if untreated. If a new trial were ordered, the appellant would likely continue to reject the defence of not criminally responsible.

Analysis

[25] The impact of an appellant's incompetency during appellate proceedings would appear to be a matter of first impression in this court. It is my view that an appellant need not be competent for this court to have the jurisdiction to deal with his or her appeal.

[26] It is a basic tenet of our law that persons charged with criminal offences should not be required to meet the case against them if they are not fit to stand trial. To that end, the Criminal Code contains an elaborate procedural code for dealing with fitness to stand trial, starting with the power to order an assessment of the accused's mental condition to determine whether the accused is unfit to stand trial. While s. 672.25 of the Criminal Code permits the trial judge to postpone the issue of fitness until the Crown can show that it is in a position to prove that the accused committed the acts alleged in the indictment, any question about the accused's fitness should be dealt with before the accused is required to defend the case. See R. v. Taylor (1992), 1992 7412 (ON CA), 11 O.R. (3d) 323, 77 C.C.C. (3d) 551 (C.A.) at pp. 334-35 O.R., 562-63 C.C.C.

[27] There is no equivalent code of procedure with respect to fitness on appeals and thus it is necessary to go back to basic principles. The starting point is that appellate rights are statutory. Subject to a possible constitutional challenge, there is no inherent right of appeal and no person convicted of an indictable offence has a right of appeal outside the Criminal Code. The basic right provided to an offender is the right to appeal in accordance with the Criminal Code provisions. Even that right is not unfettered. While there is a right to appeal on any question of law alone, an accused can only appeal on questions of fact and mixed fact and law with leave of the court of appeal or a judge of the court of appeal or on the certificate of the trial judge that the case is a proper one for appeal: Criminal Code, s. 675.

[28] The Criminal Code does not expressly provide that an accused must be competent to argue his or her appeal. The Criminal Code does, however, provide in s. 688 that an unrepresented accused who is in custody has the right to be present at the hearing of the appeal:

688(1) Subject to subsection (2), an appellant who is in custody is entitled, if he desires, to be present at the hearing of the appeal.

(Emphasis added)

[29] Cases decided in the trial context would suggest that presence has both a mental and physical aspect. Thus, an accused who was physically present throughout his trial was held not to be "present" in court during the trial as mandated by s. 650(1) of the Criminal Code because he required an interpreter to understand the proceedings and none was provided: R. v. Reale, 1973 55 (ON CA), [1973] 3 O.R. (2d) 905, 13 C.C.C. (2d) 345 (C.A.) (affirmed 1974 23 (SCC), [1975] 2 S.C.R. 624), at p. 914 O.R., p. 354 C.C.C.:

We are of the opinion that the accused, by reason of being deprived of the assistance of the interpreter during the trial Judge's charge, was not present for that part of the proceedings within the meaning of s. 577 [now s. 650] of the Criminal Code. We are of the view that he was no more present than if he were unconscious as the result of a heart attack or a stroke, and was as effectively denied any meaningful presence as if he had been physically removed from the court- room during that part of the proceedings.

[30] I attach no particular importance to the fact that the appellant in this case was not physically present on the last occasion when this matter was dealt with. I am prepared to assume that even if he had been physically present, he would not have been present in any meaningful sense. I think this appeal must also be disposed of on the basis that the appellant was probably not competent to make an informed decision about whether or not he "desired" within the meaning of s. 688(1) to be present at his appeal. I am also prepared to assume that if he did understand the proceedings, the appellant would oppose this court entering a verdict of NCRMD.

[31] The question must be whether an appellate court is powerless to correct an obvious injustice because an unrepresented appellant is not capable of being present for his appeal. There are two aspects of the Criminal Code scheme for appeals that lead me to the conclusion that the court has the necessary jurisdiction.

[32] First, as I have said, the elaborate procedure for dealing with fitness to stand trial has no equivalent at the appellate level. [See Note 1 at end of document] Parliament apparently did not think it a necessary prerequisite for the court to deal with an appeal that the appellant be competent to understand the proceedings.

[33] Second, several of the appeal rights are predicated on the possibility, if not probability, that the appellant is not competent. Thus, s. 675(3) gives an accused found unfit to stand trial the right to appeal against that finding. Nothing in the appellate scheme of procedure requires that the offender be fit before he or she can prosecute the appeal. Further, s. 686(1)(d) allows the court of appeal to allow an appeal from conviction and find the appellant unfit to stand trial. It is well within the realm of possibility that the offender could be incompetent throughout the appellate proceedings leading to such a disposition. Finally, s. 676(3) gives the Crown the right to appeal against a finding that the accused was unfit. Again, there is no prerequisite that the accused be found fit before the Crown can proceed with its appeal.

[34] I conclude from this consideration of the legislative scheme that it is open to an appellate court to deal with an appeal by an "unfit" appellant. That said, the court of appeal must accord the appellant sufficient procedural protections to ensure that he or she is dealt with fairly. In R. v. Pan, R. v. Sawyer, 2001 SCC 42, 155 C.C.C. (3d) 97 at p. 120, Arbour J. assumed that a statutory review of a conviction "must proceed fairly" and cannot be "arbitrary, irrational or unjust". In my view, both the Crown and this court have, so far as possible, ensured that the appellant was dealt with fairly. When it became clear that the appellant was unable on his own to deal with the appeal, the court appointed counsel. When Mr. Green felt unable to continue to act on behalf of the appellant, the court appointed him as amicus curiae to ensure that the appellant's interests were protected. When it became apparent that an injustice might have been occasioned at trial, the court made several orders to obtain the necessary evidence about the appellant's mental state. We now have reports of two psychiatrists and they have been cross-examined by Crown counsel and amicus. Finally, the Crown has taken extensive steps to ensure that the appellant was made aware of the state of the proceedings and the possible outcome of the appeal. In the absence of a statutory scheme for rendering an appellant "fit", I do not see what else could have been done to protect the appellant's rights and also ensure that an apparent injustice did not go unremedied. In the absence of a constitutional attack on the appellate scheme, I see nothing more that could or should have been done.

[35] I am therefore satisfied that this court has jurisdiction to deal with the appellant's appeal notwithstanding that he was not competent to make an informed decision to be present when oral submissions were made. The only question that remains is the appropriate order. In my view, the Criminal Code as interpreted by the Supreme Court of Canada is controlling on this point. The fresh evidence establishes to the requisite standard of proof that the appellant was not criminally responsible by reason of mental disorder. The evidence meets the test for fresh evidence. The procedure to be followed in those circumstances is prescribed by s. 686(1)(d) and R. v. Mailloux, 1988 27 (SCC), [1988] 2 S.C.R. 1029, 45 C.C.C. (3d) 193. In Mailloux, the court reviewed the history of s. 686(1)(d) and at p. 1043 S.C.R., p. 202 C.C.C. adopted this summary of the operation of the provision where, as here, the issue of insanity is raised for the first time on appeal:

when raised for the first time in appeal the court will examine the issue and if it is satisfied that the appellant was insane at the time of the wrongful act, it will exercise its power under s. 613(1)(d) [now s. 686(1)(d)] to quash the conviction and to substitute the special verdict of not guilty by reason of insanity.

[36] One of the cases to which the court referred with apparent approval was this court's decision in R. v. Irwin (1977), 1977 2071 (ON CA), 36 C.C.C. (2d) 1 (Ont. C.A.). I will return to Irwin after completing the discussion of the Supreme Court's treatment of the problem where insanity or, now, NCRMD, is raised for the first time on appeal.

[37] In R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, 130 C.C.C. (3d) 259, the court dealt with the question of remedy on appeal. In that case, NCRMD was raised by the accused for the first time on appeal. One of the issues was whether the court had the power to order a new trial or was bound to either enter the verdict of NCRMD or dismiss the appeal. Major J., speaking for the majority, held as follows at p. 614 S.C.R., p. 289 C.C.C.:

It is my opinion that it is in the interests of justice that Mailloux be read to recognize that where the defence of NCRMD is not raised at the trial and if the court of appeal concludes that it cannot make a determination with respect to NCRMD it is within the jurisdiction of the court of appeal in avoiding a miscarriage of justice to order a new trial. In most cases it is likely that the court of appeal would have sufficient evidence to determine the NCRMD question. It is only in cases where the facts are complex and the court concludes that further evidence is required that a new trial would be ordered.

(Emphasis added)

[38] The facts of the present appeal are not complex. The expert evidence adduced before the court points in the same direction. The Crown and amicus agree that the appellant was not criminally responsible by reason of mental disorder. In the circumstances it would not be a proper exercise of our jurisdiction to order a new trial. To do so would merely postpone the inevitable since, in my view, it is virtually certain that the appellant would be found NCRMD on a new trial. That brings me to this court's decision in R. v. Irwin.

[39] Irwin had been charged with the murder of her infant son. The only defence raised at trial was that an intruder had killed the child. The accused adduced no psychiatric evidence at trial. The accused was convicted and on appeal her counsel raised 13 grounds of appeal, none of which was based on the defence of insanity. This court found no merit in any of those grounds of appeal, but adjourned the hearing and remanded the appellant under former s. 608.2 for observation because the court was of the view that she may have been mentally ill. [See Note 2 at end of document] The court recognized that this was an unusual procedure but at p. 3 explained that "justice required that it be done".

[40] A staff psychiatrist provided the Court of Appeal with a report. He then appeared before the court and testified that the appellant was insane within the meaning of former s. 16 at the time of the killing. Crown counsel supported the substitution of the verdict of insanity in accordance with former s. 613(1)(d). Counsel for the appellant opposed making such an order. At p. 4 C.C.C., the court explained its decision to substitute the insanity verdict:

We are satisfied that the appellant at the time of the commission of the offence was suffering from a disease of the mind to an extent that rendered her incapable of appreciating the nature and quality of her act. Since the appellant was insane when she killed her child, we propose to exercise the powers given us by s. 613(1)(d) of the Code. Although [counsel for the appellant] would not agree to the Court making an order under that section, [Crown counsel] acknowledged, at the conclusion of argument, that such an order was in his opinion the appropriate one for this case. The appeal will therefore be allowed, the conviction set aside, and the appellant found not guilty on account of insanity.

[41] I think it is significant that in Irwin the court not only substituted the insanity verdict over the objection of the appellant but also did so in a case where the appellant was actively pursuing a defence that she was not the perpetrator. By contrast, in this case the only defence raised at trial was that the appellant lacked the requisite intent. He did not contend that he did not commit the actus reus of the offences.

[42] Further, the decision to substitute the NCRMD verdict in this case is consistent with the procedure set out by the Supreme Court in R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, 63 C.C.C. (3d) 481. In Swain, the court held that for the Crown to raise the insanity defence over the objection of the accused would interfere with the accused's right to control the conduct of his or her defence. However, this interference with the accused's rights is justified in two circumstances. First, where the accused has put his or her mental capacity for criminal intent into question, the Crown is entitled to "complete the picture" by leading its own evidence of insanity and the trial judge is entitled to charge the jury on s. 16: Swain at p. 976 S.C.R., p. 508 C.C.C. Secondly, where the accused does not put his or her mental state in issue, the Crown can raise the insanity defence after, and only after, it has proved that the accused is otherwise guilty of the offence. The Supreme Court recognized these limited circumstances in which the Crown could raise the insanity defence over the objections of the accused in order to safeguard two important objectives: ensuring fairness of treatment of the accused and the integrity of the criminal justice system and protecting the public from presently dangerous persons requiring hospitalization. Lamer C.J.C., speaking for the majority of the court, described the first objective in the following terms at p. 981 S.C.R., p. 512 C.C.C.:

In my view, the objective of the common law rule which allows the Crown, in some cases, to raise evidence of insanity over and above the accused's wishes is twofold. One of the objectives was identified by Martin J.A. in Simpson, supra, [R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.)] at p. 362: ". . . to avoid the conviction of an accused who may not be responsible on account of insanity, but who refuses to adduce cogent evidence that he was insane." The common law rule is aimed not only at avoiding the unfair treatment of the accused but also at maintaining the integrity of the criminal justice system itself. The accused is not the only person who has an interest in the outcome of the trial; society itself has an interest in ensuring that the system does not incorrectly label insane people as criminals.

[43] As a result of Swain, the Crown cannot raise an NCRMD defence over the objections of the accused, except in the two circumstances: where the accused has put his or her mental capacity for criminal intent into question and where the Crown has proved the accused otherwise guilty of the offence.

[44] The appellant's case fits into both of these exceptions. At his trial, the accused put his mental state into question. Had the Crown been aware of the evidence that is now available, it could have led that evidence and asked the trial judge [to] find the appellant NCRMD, over the objection of the accused. Even if he had not put his mental state in question, the Crown could have raised the issue of mental disorder after the Crown had proved his guilt. There is no doubt that the appellant is otherwise guilty of the offences of attempted murder. Had the fresh evidence been available to the Crown at trial, the Crown could have raised the issue of the appellant's mental disorder, and it seems clear that he would have been found NCRMD.

[45] Imposing the NCRMD verdict at this stage is necessary to avoid the continued improper conviction of the appellant and maintain the integrity of the criminal justice system. It is also necessary to ensure protection of the public. The fresh evidence not only establishes that the appellant was not criminally responsible at the time of the offences but also that he continues to represent a serious danger to the public, especially while he remains untreated and in need of hospitalization.

[46] I have not been persuaded by amicus curiae that the appropriate remedy is to quash the conviction but order a new trial. Mr. Green submits that the court cannot enter the NCRMD verdict without taking further steps to ensure that the appellant has been afforded due process. He submits that, as a prerequisite to entering the verdict, the court must determine whether the appellant has waived his rights to make submissions and assess his current mental capacity to make decisions about the conduct of his appeal. He submits, however, that the court could order a new trial without taking those steps because such a step would not adversely affect his rights.

[47] I do not accept these submissions, for three reasons. First, for reasons already given, it is my view that the Criminal Code does not require that an appellant be competent for the court to deal with his appeal. I reiterate that there is no constitutional challenge to those provisions. Second, as indicated, the result of a trial would lead inevitably to a finding of NCRMD because the evidence in that regard is very strong and the Crown would be bound to lead it, even if the appellant chose not to. Third, it is open to this court to impose the NCRMD verdict upon the appellant even if it results in his confinement in a hospital. Imposing such a verdict does not adversely affect his rights. Lamer C.J.C. addressed this very argument in Swain, at p. 995 S.C.R., p. 523 C.C.C.:

I cannot see how a rule which allows the Crown to move an individual from the category of those who will surely be convicted and sentenced to those who may be acquitted, albeit on the grounds of insanity, can be said to impose a burden or a disadvantage on that individual. In my view, to say otherwise is tantamount to saying that an accused has a right to be convicted and punished even though he or she does not have the mental capacity for criminal intent. This cannot be the case. As I have stated above, and think it useful to reiterate here, it is a principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence. That this is so dispels any suggestion that an accused somehow has a right to be wrongfully convicted.

(Emphasis added)

[48] In Swain, the Crown sought to impose the insanity defence at trial. Here, the Crown supports the NCRMD verdict at the appellate level. If, as in Irwin, this court can impose the insanity verdict over the opposition of the appellant, it would seem to follow that the court can do so where the appellant is not competent to decide one way or the other whether to oppose such a verdict.

[49] Finally, I have considered whether the appropriate order is to allow the appeal, set aside the conviction and find the appellant to be unfit as was done over the objection of the appellant in R. v. Pietrangelo (2001), 2001 24058 (ON CA), 152 C.C.C. (3d) 475 (Ont. C.A.). However, unlike Pietrangelo, in this case there has been no attack on the fitness finding and the fresh evidence does not cast serious doubt on that finding. It seems that notwithstanding the severity of the appellant's mental illness, remarkably he was briefly fit to stand trial.

Disposition

[50] Accordingly, I would allow the appeal, quash the conviction and find the appellant not criminally responsible on account of mental disorder. Although we have the power to do so under s. 686(1)(d), this is not an appropriate case for this court to conduct a disposition hearing pursuant to s. 672.45. The fresh evidence was not specifically directed to the question of disposition. It would be more expeditious for the Review Board to conduct the disposition hearing. In accordance with s. 672.46, the appellant will remain in custody pending a disposition hearing by the Review Board in accordance with s. 672.47 of the Criminal Code.

[51] I wish to conclude these reasons by expressing the court's appreciation for the attention paid to this file by counsel for the Crown and Mr. Green and for their assistance at the various stages of these proceedings. When it became apparent that there was reason to doubt that the appellant was criminally responsible, several Crown counsel, including Mr. Cameron, Mr. Trotter and Ms. Paine, pursued the matter with commendable diligence. Together with Mr. Green, they were instrumental in ensuring that the necessary evidence was presented to this court. While I have not accepted all of Mr. Green's submissions, he has performed a valuable service for his one-time client and for the administration of justice. It was through his efforts in contacting expert witnesses and members of the appellant's family that it became apparent a miscarriage of justice had occurred.

[52] Finally, I wish to say something about the conduct of trial. I have cast these reasons in terms of a miscarriage of justice. But I do not wish to be taken as in any way suggesting that Locke J. did not conduct a fair trial. He conducted a fitness hearing in accordance with the Criminal Code and the fitness finding was supported by expert evidence. At trial, no evidence was adduced to suggest that the appellant was not criminally responsible. In hindsight, it is apparent that, because of the nature of his illness, the appellant was doing everything in his power to hide his symptoms of mental disorder.

Appeal allowed.

Notes

Note 1: While the provisions of XX.1 of the Criminal Code, which deal with mental disorder, do not expressly exclude their application at the appellate stage, fitness to stand trial as defined in s. 2 is limited to the trial stage:

"unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel.

(Emphasis added)

Note 2: Section 608.2 was repealed when Part XX.1 was enacted. If there is an equivalent provision under Part XX.1, it is found in s. 672.11, which allows a court having jurisdiction over an accused to order an assessment of the mental condition of the accused.