Court of Appeal for Ontario

CITATION: R. v. Quenneville, 2010 ONCA 223

DATE: 20100324

DOCKET: C43534 and C49280

Goudge, Rouleau and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Denis Quenneville

Appellant

Ian Brent Stirling

Appellant

Counsel:

Breese Davies, for the appellant Denis Quenneville

Suzan E. Fraser, for the appellant Ian Brent Stirling

Alexander Alvaro and Deborah Krick, for the respondent

Heard: December 8, 2009

On appeal from the decision of the summary conviction appeal court dated July 4, 2007, by Justice Julianne A. Parfett of the Superior Court of Justice, upholding the findings dated October 2, 2003 and November 21, 2003 by Associate Chief Justice Peter D. Griffiths of the Ontario Court of Justice; and on appeal from the finding of Justice Bruce G. Thomas of the Ontario Court of Justice dated April 8, 2002.

Reasons for Decision

Goudge J.A.:

[1] In separate proceedings, Denis Quenneville and Ian Stirling were each found not criminally responsible on account of mental disorder (“NCRMD”) for the offences with which they were charged. They each consented to that finding. They have each appealed.

[2] Both appellants argue that the failure to undertake an inquiry to ensure that their consent to an NCRMD finding was voluntary and informed, like that provided by s. 606(1.1) of the Criminal Code for those pleading guilty, violated their rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. Because of this common argument, these appeals were ordered to be heard together.

[3] Each appellant also raises additional arguments. Mr. Quenneville contends that the NCRMD finding in his case must be set aside as unreasonable. Mr. Stirling argues that the court in his case erred in law in failing to try the issue of his fitness to stand trial before he entered his plea; that he was denied effective assistance of counsel; that the NCRMD finding in his case is unreasonable; that the trial judge’s reasons are insufficient; and that the fresh evidence he has tendered requires that the NCRMD finding be set aside.

[4] For the reasons that follow, I would dismiss all these arguments and order that both appeals be dismissed.

The facts in the Quenneville appeal

[5] Mr. Quenneville was charged with assault, assault with a weapon, possession of a weapon for a purpose dangerous to the public peace and uttering threats, all arising from a number of incidents between December 26, 2002 and January 11, 2003.

[6] On June 2, 2003, Mr. Quenneville was ordered to undergo an assessment to determine his fitness to stand trial, and his criminal responsibility under s. 16(1) of the Code. This led to a preliminary psychiatric report dated June 19, 2003 by Dr. R. B. Balmaceda, followed by his final assessment report dated September 2, 2003. In his preliminary report, Dr. Balmaceda opined that Mr. Quenneville did not satisfy the criteria of unfit to stand trial, but stated that he was not in a position to address the NCRMD issue. In his final report, Dr. Balmaceda maintained his position that Mr. Quenneville was fit to stand trial and also concluded that, at the time of the alleged offence, he did not appear to satisfy the NCRMD criteria in s. 16(1) of the Code.

[7] On October 2, 2003, Mr. Quenneville appeared before the Ontario Court of Justice. The Crown elected to proceed summarily on each count. Mr. Quenneville pled not guilty. His counsel indicated that this plea was because of lack of criminal responsibility. The Crown joined the defence in urging the court to find him NCRMD. The Crown read the facts of the offences into the record. Through counsel, Mr. Quenneville admitted some of the facts and agreed that if witnesses were called, they would give evidence of the remaining facts which he could not dispute. Dr. Balmaceda’s reports were tendered as exhibits. Ultimately the court agreed with the submissions of both Crown and defence that, at the time of these offences, Mr. Quenneville was NCRMD.

[8] Mr. Quenneville appealed this finding. Before the summary conviction appeal court, he conceded that there was sufficient evidence to find that he suffered from a mental disorder, the first condition required by s. 16(1) of the Code. However, he argued that the second required condition was not met because there was no basis upon which to find that the mental disorder rendered him incapable of appreciating the nature and quality of the acts for which he was charged, or of knowing that those acts were wrong. The summary conviction appeal judge did not agree, and on July 4, 2007, dismissed his appeal.

The facts in the Stirling appeal

[9] Mr. Stirling was charged on November 16, 2001 with the indictable offence of attempting to break and enter into a dwelling home with intent to commit an indictable offence. Early in the proceedings, his fitness to stand trial arose as an issue, and on November 19, 2001, an assessment of his fitness was ordered. This assessment resulted in a psychiatric report dated November 26, 2001 from Dr. William Komer indicating that Mr. Stirling may not be fit to stand trial, although his fitness may fluctuate. Dr. Komer added that there might also be an issue of Mr. Stirling’s criminal responsibility at the time of the alleged offences because of mental disorder. Dr. Komer repeated this opinion in his second report dated February 24, 2002.

[10] Dr. Komer’s third report was dated March 22, 2002. In it he concluded that Mr. Stirling was fit to stand trial, but that at the time of the alleged offences, he was likely not criminally responsible due to his mental disorder. That report was sent to the court and when Mr. Stirling appeared on March 26, 2002, his counsel advised the court that it was forthcoming. The report was in fact marked received on March 26, 2002. When Mr. Stirling next returned to court on March 28, 2002, he was remanded in custody to ensure his continued fitness.

[11] On April 8, 2002, Mr. Stirling again appeared before the Ontario Court of Justice. Dr. Komer’s reports of February 24, and March 22, 2002, were marked as exhibits. Mr. Stirling then pleaded not guilty, and the facts alleged by the Crown were read into the record. They were not disputed. Both the Crown and defence counsel took the position that Mr. Stirling should be found NCRMD. Dr. Komer was then called by the Crown to give evidence. Although no one that day had raised the issue of Mr. Stirling’s fitness, Dr. Komer gave evidence that he was indeed fit and also that he was not criminally responsible on account of mental disorder. The hearing concluded with the court finding Mr. Stirling NCRMD.

Analysis

[12] I propose to address each of the issues recited earlier in turn. As a preliminary matter, Mr. Quenneville seeks leave to appeal from the decision of the summary conviction appeal court. As the Crown acknowledges, the Charter issues he seeks to raise have clear significance to the administration of justice. I would therefore grant leave, and include in the leave the related issue of whether the NCRMD finding in his case was unreasonable, a question of law with significant consequences for him.

The section 7 issue

[13] The appellants both argue that where an accused seeks or proposes to consent to an NCRMD finding, the Code violates s. 7 of the Charter in failing to first mandate an inquiry into whether the accused does so with knowledge of the full consequences of the finding. They argue that this violation follows from their proposed principle of fundamental justice, namely that an accused person who is criminally responsible at the time of the offence should not, even on consent, be found NCRMD. While they do not argue that the process for accepting a plea of guilty provided in s. 606(1.1) of the Code is constitutionally required, they say that it describes the type of inquiry that they contend the Code must provide in the NCRMD context, and which was not accorded to either of them.

[14] Before turning to a detailed consideration of this argument, it is useful to highlight several aspects of the context in which it must be considered. First, it addresses the situation of those accused persons who propose to seek or consent to an NCRMD verdict. Since an unfit accused can do neither, these accused persons must necessarily meet the requirements for fitness to stand trial. In addition, s. 16(2) of the Code provides that these accused are at that point presumed not to be NCRMD until the contrary is proved on the balance of probabilities. Finally, the process under which accused persons are found NCRMD is set out in Part XX.1 of the Code. That part provides a comprehensive scheme governing their treatment from pre-verdict, to the NCRMD finding, through to the post-verdict disposition. Nowhere does Part XX.1 specify the kind of inquiry that the appellants say is constitutionally required.

[15] With these considerations in mind, I turn to the appellants’ argument. I would reject it for the following reasons.

[16] First, Part XX.1 of the Code was given careful constitutional consideration by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 694 (SCC), [1999] 2 S.C.R. 625. It is true that the debate in that case focused on the post-verdict provisions of Part XX.1, particularly those dealing with disposition. Nevertheless, the court made clear that where legislation provides for a comprehensive administrative and adjudicatory structure, as Part XX.1 does for those found NCRMD, it is appropriate to look at the scheme as a whole in determining whether it conforms to the principles of fundamental justice under s. 7. The court did just that in Winko. While there is no express discussion of the pre-verdict provisions of that Part, the court concluded that Part XX.1 does not deprive mentally ill accused of their liberty or security of the person in a manner contrary to the principles of fundamental justice.

[17] Even if Winko does not fully answer the appellants’ argument, I do not accept that the proposed principle is a principle of fundamental justice. The principle of fundamental justice confirmed in R. v. I.E.M., 2003 57382 (ON CA), [2003] O.J. No. 953 (C.A.), is that a person who is not criminally responsible at the time of the offence should not be convicted. This principle is founded on incapacity for criminal intent constituting an exemption from criminal liability. There is no counterpart principle of fundamental justice requiring that a person who is criminally responsible is thereby exempted from being found NCRMD.

[18] Even if this were a principle of fundamental justice, it does not follow, as the appellants contend, that an accused person must not be allowed to consent to an NCRMD finding without an inquiry like that found in s. 606(1.1). Ensuring that someone has knowledge of the full consequences of consenting to an NCRMD verdict does not prevent the person from consenting, despite being criminally responsible. More importantly, the finding of NCRMD turns not on the consent of the accused, but on the court being required to conclude, on the balance of probabilities, that the criteria of s. 16(1) of the Code are met. The proposed inquiry does not achieve the proposed principle of fundamental justice, but would do no more than add a possible procedural safeguard to that process.

[19] Finally, even if an accused should know the full consequences before consenting to an NCRMD verdict, this does not necessitate an inquiry like that of s. 606(1.1). The fact that someone consenting to an NCRMD verdict must be fit to stand trial ensures that the person is able to understand the nature and object of the proceedings and their possible consequences, without need to resort to an inquiry like that of s. 606(1.1).

[20] For these reasons, I would dismiss the appellants’ s. 7 argument.

The section 15 issue

[21] The appellants argue that the failure to provide those who seek an NCRMD verdict with an inquiry, like that provided by s. 606(1.1) to those who seek to plead guilty, discriminates against the former on the basis of mental disability, contrary to s. 15 of the Charter.

[22] The comparison is the wrong one for s. 15 purposes. Those seeking an NCRMD verdict are not treated differently from those seeking to plead guilty, on an enumerated or analogous ground. Some of those who seek to plead guilty may be mentally disabled, and some may not. That is equally true of those who seek an NCRMD verdict. All those who seek to plead guilty receive the same procedure, whether mentally disabled or not. The same is true for all those who seek an NCRMD verdict. Neither procedure discriminates on the basis of mental disability.

The Quenneville appeal: The unreasonable verdict issue

[23] Mr. Quenneville argues that, while there was evidence to support the conclusion that he suffered from a mental disorder for the purposes of s. 16(1) of the Code, there was no evidence from which it could be found on the balance of probabilities that the second branch of s. 16(1) was met, namely that the mental disorder rendered him incapable of appreciating the nature and quality of his acts, or of knowing that these acts were wrong.

[24] I do not agree.

[25] The trial judge had before him the facts surrounding the offences and the information contained in the two reports from Dr. Balmaceda.

[26] The trial judge also had Dr. Balmaceda’s opinion that, despite his mental disorder, Mr. Quenneville had the capacity to appreciate his actions at the time of the offences and was therefore not NCRMD. The trial judge rejected this opinion. In my view, he was entitled to reject it because there was a rational foundation in the evidence for doing so: see R. v. Molodowic, 2000 CSC 16, [2000] 1 S.C.R. 420. While Dr. Balmaceda’s report indicates that the triggers of Mr. Quenneville’s command hallucinations and delusional fantasies appear to be his anger and his use of marijuana and Gravol, Dr. Balmaceda did not consider, in coming to his opinion, the impact of these triggers being present when these offences were committed. He also did not address the evidence of the witnesses who observed Mr. Quenneville that support the conclusion that he was experiencing command hallucinations and delusional fantasies immediately prior to the offences. Rather, Dr. Balmaceda’s opinion is simply asserted as a conclusory statement without explanation. Taken together, these considerations provide an ample basis for the trial judge to reject the opinion.

[27] Nonetheless, for the trial judge’s finding of NCRMD to be sustained, there still must be enough evidence to allow a reasonable trier to conclude on a balance of probabilities that, at the time of the offences, Mr. Quenneville met the second branch of the test in s. 16(1) of the Code.

[28] In my view, such evidence existed here, drawn from the facts surrounding the offences and the information in Dr. Balmaceda’s reports. It is not necessary that this evidence include expert opinion evidence: see R. v. Simpson (1997), 1977 1142 (ON CA), 16 O.R. (2d) 129 (C.A.).

[29] That evidence indicated that Mr. Quenneville exhibited psychotic symptomatology in the form of auditory and command hallucinations and delusional fantasies about hurting, killing and torturing people, including cutting them up and putting them in a deep fryer. His hallucinations and delusional fantasies were triggered by his anger and his use of marijuana and Gravol, all of which were present at the time of these offences. Finally, Mr. Quenneville’s conduct surrounding the offences indicated that he was experiencing command hallucinations and delusional fantasies at the time. The victims reported bizarre behaviour on his part such as talking about killing people and taking out his knife and saying he would “bleed” someone.

[30] Taken together, this is enough for a reasonable trier to conclude, on the balance of probabilities, that Mr. Quenneville met one or both of the incapacities set out in the second branch of s. 16(1) of the Code. This argument must therefore fail.

The Stirling appeal

(a) The fitness issue

[31] Mr. Stirling argues that the trial judge erred on April 8, 2002, the day of his trial, by failing to try the issue of his fitness before he entered his plea.

[32] I do not agree. It is true that in his first two reports, dated November 26, 2001 and February 24, 2002, Dr. Komer raised the possibility that as of those dates, Mr. Stirling might be unfit to stand trial. However, fitness or unfitness can change over time, and in his report of March 22, 2002, Dr. Komer opined that Mr. Stirling was fit. On March 26, 2002, the court was advised that this report was coming. It was stamped with that date, apparently indicating that it was received that day by the court. At his next appearance on March 28, 2002, the court remanded Mr. Stirling in custody “to ensure continued fitness”.

[33] In my view, it is clear that at that point, the court had Dr. Komer’s March 22 report and had concluded that Mr. Stirling was fit, hence the remand to ensure continued fitness. When Mr. Stirling next appeared for his trial on April 8, 2002, neither the Crown nor the defence raised any challenge to the accused’s fitness to stand trial. In these circumstances, there was no need for the trial judge to revisit the issue of fitness on April 8, 2002. Although it had been done informally, there can be no doubt that the issue had, by that point, already been dealt with.

(b) The ineffective assistance of counsel issue

[34] Mr. Stirling confined his argument on this issue to a submission that his trial counsel (not Ms. Frazer) failed him by seeking an NCRMD verdict on April 8, 2002 when he had not yet been found fit to stand trial. Given my conclusion on the fitness issue, this argument must fail.

(c) The unreasonable verdict issue

[35] The appellant argues that his NCRMD verdict was unreasonable. This argument must also fail. In finding Mr. Stirling NCRMD on April 8, 2002, the court had before it the facts surrounding the offence, and Dr. Komer’s March 22, 2002 report which described Mr. Stirling’s mental disorder and explained why it prevented him knowing that his acts were wrong. This was a firm basis for a reasonable trier to reach the NCRMD verdict.

(d) The inadequacy of reasons and fresh evidence issues

[36] Mr. Stirling did not press either of these arguments in oral argument, and both can be shortly dealt with.

[37] At trial, both Crown and defence agreed that an NCRMD verdict was appropriate. There were no contested issues. The trial judge had before him the facts of the offence and Dr. Komer’s opinion of March 22, 2002 to which he gave considerable weight. In the circumstances, his reasons, though brief, are sufficient for appellate review.

[38] Mr. Stirling filed his fresh evidence, a report dated June 14, 2007 from Dr. Phillip Klassen, who opined that Mr. Stirling could not properly be found NCRMD as of November 16, 2001, the date of the offence. In response, the Crown tendered a further report from Dr. Komer dated December 16, 2007, maintaining the contrary opinion he offered at trial.

[39] Dr. Komer assessed Mr. Stirling only a few days after the offence. Dr. Klassen did not do so until years later. Dr. Komer had access to relevant records that disappeared and were not available to Dr. Klassen. Dr. Klassen relied heavily on Mr. Stirling’s current claim that when he was seen by Dr. Komer he malingered for the purpose of being found NCRMD. However, since Mr. Stirling’s credibility is highly suspect, his present claim that he malingered for that purpose is equally suspect. Dr. Klassen, however, accepted his claim at face value. In these circumstances, the fresh evidence could not have affected the result.

[40] In summary, for all these reasons, both appeals must be dismissed.

RELEASED: March 24, 2010 (“S.T.G.”)

“S.T. Goudge J.A.”

“I agree Paul Rouleau J.A.”

“I agree David Watt J.A.”