CITATION: R. v. Woodward, 2009 ONCA 911
DATE: 20091222
DOCKET: C41516
COURT OF APPEAL FOR ONTARIO
Doherty, Rouleau and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Brian Donald Woodward
Appellant
Daniel J. Brodsky, for the appellant
John McInnes, for the respondent
Heard and released orally: December 11, 2009
On appeal from the convictions entered by Justice G. Lapkin of the Ontario Court of Justice on May 25, 2001 and the sentence imposed dated April 28, 2003.
ENDORSEMENT
[1] We have considered the "fresh" evidence of Dr. Gojer. The Crown has very fairly invited the court to consider all of the issues raised by the appellant based on Dr. Gojer's evidence on their merits without regard to the significant procedural hurdles that could have been raised by the Crown. There are three areas potentially affected by Dr. Gojer's evidence.
1. Was the appellant unfit to stand trial?
[2] Dr. Gojer acknowledges in his report that the appellant is fit under the test enunciated in R. v. Taylor (1992) 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551 (Ont. C.A.). Dr. Gojer has concerns about the limited inquiry mandated by Taylor. No doubt, from a psychiatric perspective, there are those who would prefer a broader approach to the fitness inquiry than is contemplated by Taylor. Fitness is, however, a legal question and not a medical question. The definition of "unfit to stand trial" in s. 2 of the Criminal Code tracks the language in Taylor. There is no basis in the opinion of Dr. Gojer to question the appellant's fitness under the test enunciated in Taylor and the Criminal Code.
2. Was the appellant NCRMD?
[3] The appellant clearly suffers from a serious mental illness. His conduct at the relevant time was driven at least in part by his delusions, particularly those concerning his brother and the entitlement to the house that had formerly belonged to their parents. The question is not, however, whether the appellant was mentally ill or acted out of delusions, but whether he was NCRMD within the meaning of s. 16 of the Criminal Code.
[4] Dr. Gojer agreed that the appellant was capable of appreciating the nature and quality of his acts. He also agreed that the appellant knew his acts were legally wrong. Dr. Gojer testified that the appellant should be found NCRMD because he was incapable of knowing his actions were morally wrong.
[5] The applicable test where the NCR claim is founded on the assertion of an incapacity to know that one's acts are morally wrong is set out in R. v. Oommen 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507. That case instructs that the court must determine whether the appellant was incapable of understanding that his acts were wrong according to the ordinary moral standards of reasonable members of the community.
[6] In our view, Dr. Gojer does not address this specific question in his report or in his evidence beyond stating that he does not think that the appellant knew that what he was doing was morally wrong. The appellant's personal belief about the morality of his actions is a different issue than his capacity to know how others in the community would assess the morality of his acts. It is difficult to see how an individual like the appellant who knew his actions were legally wrong would be incapable of understanding that the same acts would be regarded as morally wrong by the community. Dr. Gojer provides no insight into this problem.
[7] We also agree with the Crown's contention that apart from Dr. Gojer's fresh evidence, the psychiatric evidence accumulated over the years is against any NCRMD finding. It must also be said that Dr. Gojer's opinion was somewhat uninformed in that for some reason he did not see fit to re-interview the appellant before providing this opinion. Dr. Gojer last saw the appellant over 6 years ago. Also, for some reason, Dr. Gojer did not see fit to read the appellant's evidence at trial before giving this opinion.
[8] The appellant has never suggested to any psychiatrist or in his evidence at trial that he did what he did because he believed he was justified in doing what he did. His position throughout has been that he did not do the acts alleged against him. As far as can be discerned from this record, he maintains that position today. That claim is inconsistent with Dr. Gojer's opinion.
[9] Dr. Gojer's opinion comes down to a conclusory statement that appears to be driven in large measure by his belief that the appellant would be better served from a treatment perspective in the NCRMD regime than he would be in the penitentiary. We cannot accept this result-driven approach to the NCRMD inquiry. Dr. Gojer's evidence does not provide any basis upon which the appellant could demonstrate that he was NCRMD at the relevant time.
3. Was the appellant a long-term offender?
[10] The trial judge considered whether the appellant could be managed in the community under a LTO order, although the trial judge did not have the benefit of the decision in R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357. The trial judge concluded that he was satisfied beyond a reasonable doubt that the appellant could not be managed in the community.
[11] At the initial hearing of this appeal in May 2008, the court concluded that there was no basis upon which to interfere with that finding. We are now asked to consider whether a long-term offender order finding would be appropriate having regard to Dr. Gojer's evidence. We do not think there is anything in Dr. Gojer's evidence that alters the situation.
[12] Dr. Gojer's hypothesis is that the appellant could be placed on a drug regime and could be required to take that drug while at large as a long-term offender. Dr. Gojer then hypothesizes that when the long-term offender period was concluded, the appellant could be controlled in the community by the availability of committal proceedings under the provincial mental health legislation.
[13] First of all, there is nothing to suggest that he appellant would comply with any order that he take medication while in the community. The evidence is all in the other direction. Second, there is no clear evidence as to what drug regime might be effectively used in the case of the appellant. Finally, we do not think that the possibility of the appellant's apprehension under provincial mental health legislation is a means of managing someone in the community. To the contrary, it seems to suggest an inability to manage someone in the community.
[14] There is no basis in the evidence of Dr. Gojer to substitute a long-term offender order.
[15] The fresh evidence of Dr. Gojer could not have affected the result. It is inadmissible under the fourth Palmer criteria. The appeal is dismissed.
"Doherty J.A."
"Paul Rouleau J.A."
"David Watt J.A."