CITATION: R. v. Ohenhen, 2008 ONCA 838
DATE: 20081212
DOCKET: C47378
COURT OF APPEAL FOR ONTARIO
Gillese, Armstrong and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Julius Ohenhen
Appellant
Julius Ohenhen, appearing in person
Paul Burstein, amicus curiae
Jean D. Buie, for the Centre for Addiction and Mental Health
Riun Shandler, for the respondent
Heard: November 20, 2008
On appeal from the verdict of not criminally responsible entered by Justice S. Bruce Durno of the Superior Court of Justice dated June 11, 2007.
By the Court:
[1] The appellant was charged in March, 2006, for having made harassing phone calls to, among others, a probation officer and an Assistant Crown Attorney. He was remanded to the Centre for Addiction and Mental Health (“CAMH”) on September 29, 2006, for a formal psychiatric assessment. The appellant has a long history of mental illness, and it has been established that he suffers from paranoid schizophrenia. Further, the appellant has a relatively lengthy criminal record, largely related to verbal and physical harassment.
[2] At trial on June 11, 2007, the Crown’s evidence was read in on consent of the appellant. No contrary evidence was called, nor did the appellant’s lawyer conduct any cross-examination. Following this uncontested hearing, the trial judge found the appellant guilty on both counts, but rendered a verdict of not criminally responsible on account of mental disorder (“NCR”), on consent of the appellant.
[3] The appellant appeals against the NCR verdict based on a claim that his trial lawyer did not properly represent him. The appellant applied for, but was denied, legal assistance. In February 2008, this court appointed Paul Burstein as amicus curiae on the appellant’s appeal against the NCR verdict.
[4] After reviewing the appeal books, and speaking with the appellant and trial counsel, amicus curiae determined that it would be inappropriate to raise any allegation of ineffective assistance of counsel at the appellant’s trial.
[5] The appeal was scheduled to be heard on November 20, 2008. At that time, the appellant asked to be permitted to file documentation rather than make oral submissions. The court acceded to that request based on its understanding that the annual ORB hearing would not be delayed as a result.
[6] The panel has now received Mr. Ohenhen’s written submissions. From those submissions, it appears that he takes issue with the NCR verdict.
[7] Given that the NCR verdict was rendered by the trial judge with the consent of the appellant, we accept the submission of the amicus curiae that the appeal can succeed only if the appellant can meet the test for withdrawal of his consent to the NCR verdict and/or there was no evidence to reasonably support that verdict.
[8] We see no basis on which to permit the appellant to withdraw his consent to the NCR verdict. There is no evidence to suggest that his consent was involuntary, equivocal or not fully informed. The record demonstrates that the appellant was aware of the nature and consequences of the NCR verdict and voluntarily requested that it be rendered by the trial judge. There is no fresh evidence that casts doubt on the validity of the appellant’s consent to the NCR verdict and amicus curiae advises that he is unaware of any such evidence.
[9] Nor do we see any basis on which to doubt the reasonableness of the verdict. The trial judge relied on the appellant’s lengthy criminal record and Dr. Gojer’s assessment report in rendering the verdict. The appellant’s criminal record indicates a long history of harassing and threatening behaviour, and the report concludes that the appellant suffers from paranoid schizophrenia. The appellant did not challenge the assessment report nor did he offer any evidence to the contrary. In the circumstances, the NCR verdict was reasonable.
DISPOSITION
[10] Accordingly, the appeal is dismissed.
RELEASED: December 12, 2008 (“E.E.G.”)
“E.E. Gillese J.A.”
“Robert P. Armstrong J.A.”
“Paul Rouleau J.A.”