Court of Appeal for Ontario

CITATION: R. v. Ross, 2009 ONCA 149

DATE: 20090217

DOCKET: C43638

Doherty, MacPherson and Lang JJ.A.

BETWEEN:

Her Majesty the Queen Respondent

and

Derek Ross Appellant

Frank Addario and Andrew Furgiuele, for the appellant Jamie Klukach, for the respondent

Heard: January 15, 2009

On appeal from the conviction by Justice James A. Fontana of the Ontario Court of Justice dated November 2, 2001.

MacPherson J.A.:

A. INTRODUCTION

[1] In 2001, the appellant pleaded guilty to, and was convicted of, the offences of criminal harassment and uttering threats. His mental condition was a potential issue during the trial and sentencing proceedings, including the post-sentence hearing after the appellant breached his conditional sentence. Throughout this period, both the Crown and defence were concerned about the appellant’s mental condition. As a result, two psychiatrists became involved in assessing him.

[2] The appellant served his sentence, but then decided to appeal his conviction on the basis that he was not criminally responsible due to a mental disorder (NCR-MD) at the time he committed the offences. The appeal sputtered forward for several years. In 2005, this court granted an extension of time within which to file an appeal. Since then, the appellant has been assessed by four psychiatrists who were subsequently cross-examined on their reports.

[3] The appellant seeks to enter the evidence of all four psychiatrists as fresh evidence on the appeal. The parties agree that the first three criteria of the test for the admission of fresh evidence on an appeal set out in R. v. Palmer 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 are met in this case. Their point of disagreement, and hence the central issue on this appeal, is whether the appellant can establish the fourth criterion of Palmer – could the fresh evidence, if believed, reasonably be expected to have affected the result?

[4] If the appellant can establish that this fresh evidence should be admitted, then a second issue arises: should this court enter an NCR-MD verdict or order a new trial?

B. FACTS

[5] The appellant and the complainant became non-romantic friends in 1991 when they were both students at the University of Ottawa. However, their friendship ended after he went to her apartment in March 1992, asked her to take a shower with him, told her that he wanted to commit suicide, and produced a knife. The appellant was admitted to hospital for psychiatric treatment in March and June 1992.

[6] On two occasions after their friendship ended, the appellant was charged with criminal offences involving the complainant, but the charges were withdrawn when the appellant entered into a peace bond.

[7] From 1993 to 1995, he was a psychiatric patient at the Royal Ottawa Hospital. Despite hospitalization and medical treatment, over the next few years the appellant continued to try to contact the complainant.

[8] On December 20, 2000, the appellant confronted the complainant as she exited a grocery store. He tried to convince her to meet with him. The complainant tried to call for help using a pay phone; the appellant hung up the receiver. He told her that she would regret it if she did not agree to meet with him. He twice made throat-slashing motions across his neck while looking at the complainant.

[9] In June 2001, the appellant sent a 150-page letter to the complainant’s mother. In the letter, the appellant chronicled his view of the history of his relationship with the complainant and tried to persuade the mother to assist in convincing her daughter to meet him. In many places the letter is very troubling and demonstrates several times that the appellant explicitly recognized that the complainant was scared of him. Moreover, in a number of places the language used in the letter was threatening:

So yes, [she] can fight me using the police and that could ruin my life. But if my life is going to be unhappy anyway, I don’t consider that as much of a disincentive. I would also then likely give up on any plan for peace and be forced to retaliate against her for all the pain she has caused me. My question of [her] is this: Why risk it?

Now you could easily make a copy of this letter and send it to your local police station or to the Ontario College of Teachers. Either way, you now have the power in your hands to ruin my life. After all, I have made the somewhat veiled threat of saying that if [she] refuses to meet with me that I have thoughts of potential retribution that I may or may not act on. I said that as a somewhat desperate attempt to finally get [her] to react to my request…If [she] flat out said “no” and threatened to use legal means to prevent me from contacting her any further, that would be awful. At that point, I would have to make a choice whether to continue offering peace, or to give up and treat [her] as an enemy. BUT IF THIS LETTER CAUSES ME TO LOSE MY POTENTIAL TEACHING CAREER, that would probably cause me to seek immediate and instant retribution. Just so you know.

[10] These two events resulted in criminal charges against the appellant for uttering threats and criminal harassment.

[11] After the charges were laid, the defence arranged for a psychiatric assessment by Dr. Paul Federoff, a forensic psychiatrist at the Royal Ottawa Hospital. Dr. Federoff was the co-director of the Sexual Behaviours Clinic at the hospital and a professor at the University of Ottawa. One of Dr. Federoff’s special interests was “courtship disorders” which include psychiatric disorders associated with abnormalities in romantic or sexual relationships.

[12] In his report of September 10, 2001, Dr. Federoff concluded that the appellant did not have the mental disorder erotomania (a sub-category of delusional disorder where a person wrongly believes that another person is in love with him or her) because the accused did not have a persistent belief that the complainant was in love with him. He also observed that the appellant was aware that what he did was wrong and that future attempts to contact the complainant would be viewed as criminal. In Dr. Federoff’s opinion, the appellant had an “over-valued idea” which means that “a commonly viewed belief is over-invested with emotional valance”. The most common over-valued idea is anorexia nervosa.

[13] On November 2, 2001, the appellant pleaded guilty to both offences. On November 7, 2001, a conditional sentence of nine months followed by three years’ probation was imposed.

[14] Early in 2002, the appellant was charged with breaching his conditional sentence, based on the allegation that he attempted to contact the complainant. At the breach hearing, Dr. John Bradford, the head of the Division of Forensic Psychiatry at the Royal Ottawa Hospital and a professor at the University of Ottawa, testified that the appellant had a delusional disorder (erotomanic type) and recurrent major depression. Crown counsel asked Fontana J. to order an assessment specifically directed to the issue of criminal responsibility, on which Dr. Bradford’s report did not focus. Justice Fontana held that he lacked jurisdiction on a breach hearing to make such an order. He sentenced the appellant to house arrest for the remainder of his conditional sentence. The appellant served this sentence and the subsequent probation without incident.

[15] The appellant now seeks to have his convictions set aside and a verdict of NCR-MD substituted. In the 2003-2007 period, four psychiatrists have written reports about the appellant. Two conclude that the appellant was NCR-MD when he committed the offences in 2000 and 2001; two conclude that he was not. All four psychiatrists were cross-examined by counsel on their reports in 2007 and 2008.

[16] The appellant seeks to have these reports admitted as fresh evidence. If the reports are admitted, the appellant requests that the convictions be quashed and verdicts of NCR-MD be substituted or, alternatively, a new trial be ordered.

C. ISSUES

[17] The issues are:

(1) Should the fresh evidence be admitted?

(2) If the answer to (1) is ‘Yes’, what is the appropriate order or remedy?

D. ANALYSIS

(1) Fresh evidence

(a) Introduction

[18] The parties agree that the first three criteria for the admission of fresh evidence set out in Palmer – due diligence, relevance, and evidence reasonably capable of belief – are present in this case. Accordingly, the central issue on the appeal is whether the fourth criterion – the evidence “must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result” (p. 775) – has been established. The onus to establish this fourth criterion is on the appellant: see R. v. M. (I.E.) (2003), 2003 CanLII 57382 (ON CA), 173 C.C.C. (3d) 515 at para. 47 (On. C.A.).

[19] Where, as in this case, the appellant advances an NCR-MD claim, he bears the burden of establishing on the balance of probabilities that he was NCR-MD at the time of the offence: see Criminal Code s. 16(3). Joining this burden with the fourth criterion from Palmer, the question becomes: could the fresh evidence, if believed, when taken with the rest of the evidence, reasonably lead the trial judge to conclude on the balance of probabilities that the appellant was NCR-MD at the relevant time?

[20] The Criminal Code provision that must be considered and applied in this appeal is s. 16(1):

16(1) 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. [Emphasis added.]

[21] The five psychiatrists who examined the appellant from 2001 to 2007 disagreed in their analyses and conclusions with respect to both emphasized components of this provision.

[22] In my view, it is not necessary to analyze, and reach a conclusion about, whether the appellant had a “mental disorder” within s. 16(1) of the Criminal Code. I say this because the real focus of the appeal and its resolution turns on the second component – “incapable of … knowing that it was wrong” – of s. 16(1). Accordingly, I will assume that the fresh evidence offers a basis upon which a trial judge could be satisfied that the appellant suffers from a mental disorder.

(b) “Incapable of … knowing that it was wrong”

[23] The appellant concedes that he knew what he was doing when he threatened and harassed the complainant in 2000 and 2001; hence the words “incapable of appreciating the nature and quality of the act” in s. 16(1) are not in play on this appeal. The issue is the other component of s. 16(1): was the appellant “incapable of …knowing that it was wrong”?

[24] The legal framework for addressing this question is found in the decisions of the Supreme Court of Canada in R. v. Chaulk 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303 and R. v. Oommen 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507. See also: R. v. Fraser (1997), 1997 CanLII 6315 (ON CA), 33 O.R. (3d) 161 (On. C.A.).

[25] In Chaulk, the court considered the meaning of the word “wrong” in s. 16(1), expanding it to go beyond legally wrong to include morally wrong. Chief Justice Lamer, for the majority, stated at para. 97:

Viewed from this perspective, it is plain to me that the term “wrong” as used in s. 16(2) must mean more than simply legally wrong. In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. This would be the case, for example, if the person suffered from a disease of the mind to such a degree as to know that it is legally wrong to kill but, as described by Dickson J. in Schwartz, kills “in the belief that it is in response to a divine order and therefore not morally wrong” (p. 678). [Emphasis added.]

[26] In Oommen, the court affirmed Chaulk and clarified the focus of the inquiry relating to knowledge of the difference between right and wrong. Justice McLachlin said at p. 516:

A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.

[27] These decisions make it clear that a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was regarded as wrong on a societal standard: see Chaulk at para. 98.

[28] Again, the five experts disagreed on this issue. Dr. Bradford and Glancy opined that the appellant was incapable of knowing that his threatening and harassing conduct in 2000 and 2001 was morally wrong. Dr. Gojer and Dr. Collins, as well as Dr. Federoff in his initial assessment for the defence in 2001, reached the opposite conclusion.

[29] In my view, the reports and testimony of Dr. Bradford and Dr. Glancy, taken together with the rest of the evidence, do not provide a basis upon which a trial judge could be satisfied on a balance of probabilities that the appellant was incapable of knowing that his conduct was wrong when he committed the offences. I say this for four reasons.

[30] First, and most importantly, the appellant’s letter to the complainant’s mother in June 2001, which led directly to the criminal charges, is replete with statements that indicate that he was fully aware that his conduct towards the complainant was morally wrong. He acknowledged that the complainant was scared of him and had feared him for nine years, that his throat-slashing gestures across his neck in her presence were “awful”, that his request that the complainant take a shower with him coupled with the production of a knife immediately thereafter was “a horrible moment”, and that he would seek retribution if the complainant reported him to the police or the Ontario College of Teachers. In my view, these are the comments of a person entirely aware that his conduct was both morally and legally wrong.

[31] Second, in his cross-examination Dr. Bradford acknowledged that the appellant’s statements in the letter reflected “an appreciation on his part of the perspective that his acts are wrongful, unacceptable, inappropriate”. In my view, this description, and especially the word “unacceptable”, brings the appellant’s conduct within the Chaulk formulation of a person who knows that it is morally wrong “according to the moral standards of society.”

[32] Third, although Dr. Glancy offered his opinion that the appellant’s delusional disorder deprived him of the capacity for rational perception and rational judgment about the wrongfulness of his act, Dr. Glancy did not read the appellant’s letter to the complainant’s mother before preparing his report. I am not inclined to attach much weight to an opinion that does not consider what I would call the ‘best evidence’ of the appellant’s own perception of his conduct. Moreover, after he read the appellant’s letter during a break in his cross-examination, Dr. Glancy agreed that the letter “evinces some kind of insight on his part into how his conduct is perceived and the wisdom of trying to move beyond it” and that “he is capable of some kind of objective evaluation of his behaviour.”

[33] Fourth, Dr. Federoff, Dr. Gojer and Dr. Collins concluded that the appellant was aware that his conduct in 2000 and 2001 was wrong.

[34] Dr. Federoff, who assessed the appellant for the defence shortly after his arrest, said in his report on September 10, 2001: “In my discussions with Mr. Ross, I was left with the impression that he is aware that what he did was wrong and that future attempts to contact the victim would be viewed as criminal.”

[35] In his cross-examination, Dr. Gojer testified:

I also part company with Dr. Bradford and Dr. Glancy on interpreting how this man’s belief systems, be they delusional or overvalued ideas, impacted on his ability to know the wrongfulness of his actions.

What this guy is saying is very clear. I know its going to cause grief to this person. I know that, yes, I’ll be charged, and that you’ll go to the police. He has got clear knowledge that his behaviour is having a negative impact on the victim. There is no evidence that he does not appreciate the wrongfulness or know that what he is doing is wrong to [the complainant].

[36] Finally, in his cross-examination Dr. Collins stated:

…I would still see him as being responsible, he could appreciate the nature of his actions. Based on what he told me and based on his writings as well, if you look at the tome [the letter] … I would not view him, in my professional opinion as being a candidate for a section 16 defence … Because he could spell out the consequences. He knew what the possible consequences were for writing that tome as he puts it and what could possibly happen to him.

[37] For these reasons, I conclude that the appellant has not established on a balance of probabilities that the reports and testimony of Dr. Bradford and Dr. Glancy, taken together with the rest of the evidence, provide a basis on which a trial judge could be satisfied that the appellant was incapable of knowing that his conduct was wrong. This being the case, the appellant failed to meet the fourth criterion in Palmer. It follows that I would not admit the fresh evidence on this appeal.

(2) Remedy

[38] In light of the answer in (1) above, it is not necessary to consider this issue.

E. DISPOSITION

[39] I would dismiss the appeal.

RELEASED: “Feb 17 2009” “DD” “J.C. MacPherson J.A.” “I agree Doherty J.A.” “I agree S.E. Lang J.A.”