CITATION: R. v. Guidolin, 2011 ONCA 264

DATE: 20110411

DOCKET: C51566

COURT OF APPEAL FOR ONTARIO

Doherty, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Guidolin

Appellant

Daniel Guidolin, appearing in person

Daniel Medd, as amicus curiae

Benita Wassenaar, for the respondent

Heard: March 21, 2011

On appeal from the finding of Justice Lauren Marshall of the Ontario Court of Justice on December 12, 2007 declaring the appellant not criminally responsible on account of mental disorder.

Doherty J.A.:

I

Introduction

[1] In June of 2007, the appellant confronted two women as they walked away from a bank machine. He grabbed for the money in the hand of one of the women. A struggle ensued. The appellant managed to overcome the victim, take the money ($240.00) and flee the scene on a bicycle. The incident was videotaped on the bank’s surveillance equipment. Two days later, the police arrested the appellant after a brief struggle. He was charged with one count of robbery and two counts of resisting arrest.

[2] The appellant, who has an extensive criminal record stretching back over decades, was ordered detained pending trial. While in custody, his fitness to stand trial was questioned and a psychiatric assessment was ordered. The appellant was found unfit and a treatment order was made. He was subsequently determined to be fit to stand trial. He was held in a psychiatric facility from August 2007 to December 2007.

[3] On December 12, 2007, the appellant, who was represented by counsel, advanced a not criminally responsible on account of mental disorder plea (“NCRMD”). The Crown did not oppose that plea. The parties agreed that the report of the psychiatrist, Dr. McDonald, would suffice and he was not required to give evidence. The trial judge also heard a brief agreed upon description of the underlying offences. She concluded that the appellant had established the NCRMD claim and remanded him to the jurisdiction of the Ontario Review Board (the “Board”) for disposition. The appellant has been detained under orders of the Board since then.

[4] The appellant was granted an extension of time to appeal the NCRMD finding in January 2010. The perfection and hearing of the appeal were delayed for various reasons, including some concern with respect to the appellant’s fitness to instruct counsel.

[5] At the hearing of the appeal, Mr. Medd, who had formerly represented the appellant, appeared as amicus. The appellant appeared on his own behalf.

[6] Mr. Medd submits that on the material placed before the trial judge, and in particular the psychiatric report of Dr. McDonald, the NCRMD verdicts were unreasonable. He contends that this court should set aside those verdicts and enter convictions on the charges pursuant to s. 686(4) of the Criminal Code. Mr. Medd further submits that this court should impose sentence, and that if possible the sentence should require the appellant to remain in the psychiatric facility at Whitby for some brief time to facilitate the appellant’s transition back into the community.

[7] In his submissions, the appellant told the court that he agreed with Mr. Medd that the NCRMD verdicts should be set aside. He was content that a conviction be entered on the robbery charge, but insisted that he had not assaulted the police and was not prepared to agree to convictions on those two charges. The appellant told the court that he thought he was prepared to be released immediately and that he had plans to connect with various family members, including his elderly mother.

[8] Ms. Wassenaar, for the Crown, submits that the psychiatric evidence was sufficient having regard to the agreement of the parties that NCRMD verdicts were appropriate. Alternatively, she submits that if the verdicts are set aside, this court should enter convictions on all charges and impose a sentence in the “mid-single digit penitentiary range”. The appellant has spent about three years and eight months in custody, most of it in maximum security psychiatric facilities.

II

Is the NCRMD Verdict Unreasonable?

(i) The court’s approach

[9] A person found NCRMD may appeal on the basis that the finding is “unreasonable or cannot be supported by the evidence”: s. 686(1)(a). The reasonableness standard, like that applied to conviction appeals, requires that the appellant demonstrate that a trier of fact, acting reasonably and properly applying the law, could not have arrived at an NCRMD verdict: R. v. Fraser (1997), 1997 6315 (ON CA), 33 O.R. (3d) 161 at p. 167 (C.A.).

[10] The argument that the NCRMD verdicts were unreasonable raises an unusual problem in this case. It was the appellant, through counsel, who raised the NCRMD claim at trial. He carried the burden of proof on the balance of probabilities: s. 16(3). Having succeeded at trial, the appellant now finds himself claiming that the trial judge acted unreasonably in finding that the appellant had met his burden and established the NCRMD claim on the balance of probabilities.

[11] There is no absolute bar preventing the appellant from challenging the NCRMD finding even where it was the appellant who raised the claim at trial. However, finality concerns, as well as the need to preserve the effective operation of the mental disorder provisions in the Code, require that the court look very closely at any attempt to resile by way of appeal from an NCRMD verdict sought at trial. The appellant has been under the jurisdiction of the Board for several years now. They have made dispositions based on their expertise as applied to current psychiatric information. Entertaining an appeal against an NCRMD verdict where the claim was advanced by the defence effectively allows that individual to circumvent the Board’s ongoing jurisdiction and requires this court to make a disposition that does not have regard to the psychiatric and treatment developments that have occurred in the years between the NCRMD verdict and the hearing of the appeal.

[12] When approaching an argument that an NCRMD verdict is unreasonable, where it was the appellant who sought that verdict at trial and the Crown agreed that the verdict was appropriate, this court should have regard to the position of the appellant and the consensual nature of the proceedings when assessing the adequacy of the material before the trial judge. One can hardly expect that the medical opinion evidence will contain the detail that would be found in a contested proceeding, or that the medical evidence will answer all of the questions that could possibly have been raised had the matter been contested.

[13] While acknowledging that the position of the defence at trial and the consensual nature of the proceedings are relevant to the reasonableness assessment, if on a generous reading of the evidence, the NCRMD finding cannot pass the reasonableness standard, that finding cannot stand regardless of the negative impact an order setting it aside may have on the appellant’s treatment and the protection of the public.

(ii) The reasonableness of the verdicts

[14] Section 16(1) provides:

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.]

[15] There was ample evidence that the appellant suffers from a longstanding and serious mental disorder. In his report, Dr. McDonald diagnosed him as having:

• a schizoaffective psychosis;

• polysubstance abuse; and

• an antisocial personality disorder.

[16] There was also ample evidence that the appellant’s mental disorder was in all likelihood causative of his criminal conduct. Further, his long criminal record, as well as Dr. McDonald’s opinion, was evidence of his potential dangerousness.

[17] However, as Mr. Medd correctly observes, s. 16 is not triggered merely because an accused suffers from a mental disorder that is causative of criminal conduct, even if that disorder renders the accused a danger to the public. The mental disorder can constitute a “defence” under s. 16 only if it has one of two effects. It must either render the person incapable of appreciating the nature and quality of the act or render the person incapable of knowing that the act was wrong. In this case, the NCRMD claim was based on the assertion that the appellant’s disorder rendered him incapable of knowing that his criminal conduct was wrong.

[18] The meaning of “wrong” in the context of s. 16 was explained in R. v. Oommen, 1994 101 (SCC), [1994] 2 S.C.R. 507, at p. 520:

The issue is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person.

[19] Nothing in the brief recitation of the facts surrounding the offences provided to the trial judge offered any support for the claim that the appellant did not know his conduct was wrong. The viability of the NCRMD verdict turned entirely on Dr. McDonald’s report. As indicated earlier, the parties did not require him to give viva voce evidence. The question becomes: do the contents of the report reasonably support a finding that the appellant, when he committed one or more of the offences, was incapable of knowing that what he was doing was “wrong” in the sense described in Oommen?

[20] There are three potentially relevant passages from Dr. McDonald’s report:

[1] At this point I would regard Mr. Guidolin as Fit to Stand Trial. I will comment on this point on the issue of criminal responsibility or lack thereof. I am rather lukewarmly persuaded that this man qualifies, at least marginally, for a non-criminal responsibility finding. This is not because he has no capacity to recognize the wrongfulness of his actions or specifically the most recent act of robbery, indeed he can, but he is substantially morally indifferent, dismissively remarking at one point, “All I did was grab the money”. When advised that the event in question had been recorded on video tape, he commented with some indignation, “They had a camera? But it was off hours!”. He even acknowledged that he needed the money to buy drugs, as has his been his long term habit. Despite making such obvious inculpatory remarks, he was substantially evasive on many topics, as if acutely sensitive to the possibility of making his situation worse by talking about it.

This is the logical lead-in to the only possible way of seeing this man’s actions as falling within the NCR rubric, i.e. he is often acutely psychotic, delusional, disorganized, and unable to exercise the judgment of a normal person (Oommen). While he does have significant antisocial tendencies of longstanding and has a long criminal record going back many years, he also has a major psychotic disorder which is predictably aggravated by his substance abuse.

[2] Perhaps the most relevant remarks he ever made about what might have been going on in his head at the time of the most recent robbery are the following: “They seem to know ... that I need money ... that’s what drove me to do it ... I tried to ignore them, but mom not there, I was in dire need ... I was arrested a couple of days later ... my picture was on TV”. It appeared that he was making references to auditory hallucinations, and he seemed to be suggesting that these had something to do with his committing the offence of robbery, but his account was disorganized and difficult to interpret.

[3] Although the psychiatric picture with this man is a mixed one with a significant antisocial component, I would support his candidacy for non-criminal responsibility status and would further remark that his manageability in the community without such disposition is totally unrealistic given his behavioural history. [Emphasis added.]

[21] In my view, nothing in the report provides a reasonable basis upon which an NCRMD verdict could be returned. The first passage contraindicates an NCRMD verdict. Dr. McDonald appears to accept that the appellant has the capacity to recognize the wrongfulness of his act, but simply does not care. That state of mind does not constitute a defence under s. 16: Oommen at p. 521; R. v. J.M.W. (1998), 1998 5612 (BC CA), 123 C.C.C. (3d) 245 at para. 32.

[22] In the first passage quoted above, Dr. McDonald also opines that the appellant is “unable to exercise the judgment of a normal person (Oommen)”. If this is intended as a description of the meaning of the word “wrong” from Oommen, the doctor has misunderstood that case. The inability to exercise the judgment “of a normal person” is a long way removed from the incapacity to know that one’s actions are wrong according to the normal standards applicable in the community.

[23] There are references to auditory hallucinations in the second passage from Dr. McDonald’s report. Hallucinations can sometimes precipitate a valid s. 16 defence. However, Dr. McDonald was not prepared to go any further than to indicate that the appellant “seemed to be suggesting” that his auditory hallucinations “had something to do” with his commission of the offences. This is not an assertion that the appellant acted under the influence of any hallucination.

[24] The final passage in Dr. McDonald’s report is perhaps the best indication of the basis upon which he supported the NCRMD claim. Dr. McDonald was obviously concerned about the appellant’s manageability in the community and saw the NCRMD verdict as the best way to protect the community and hopefully offer the appellant some treatment. While that approach is understandable from the perspective of the psychiatric clinician, it is not a proper basis in law for an NCRMD verdict.

[25] In my view, there was no basis upon which a reasonable trier of fact could conclude that the NCRMD claims had been made out on the balance of probabilities. Those verdicts must be set aside.

III

The Appropriate Remedy

[26] The appellant, amicus, and Crown counsel all agreed that if the NCRMD verdict on the robbery charge was set aside, this court should substitute a conviction on the robbery charge pursuant to s. 684(4). I think that is the proper order. There is no doubt that the appellant committed the robbery. Clearly, he would not raise an NCRMD defence if the matter was remitted for a new trial. More importantly, the Crown has not suggested that it has any basis upon which to seek an NCRMD finding. In those circumstances, an order entering a conviction on the robbery charge is the only appropriate order.

[27] The appellant opposes convictions on the resisting arrest charges. He advised this court that he did not commit those offences. At trial, when asked to plead, it appears that the appellant was trying to make a distinction between the robbery charge and the resist arrest charges when he was interrupted by the trial judge and the proceedings were continued without the entry of any formal pleas. The appellant is entitled to his day in court on the resist arrest charges if the Crown chooses to pursue those matters. I would set aside the NCRMD verdicts on those counts and order a new trial on those charges.

IV

The Appropriate Sentence

[28] In oral argument, Crown counsel and amicus agreed that this court should impose the appropriate sentence on the robbery charge. At the end of oral submissions, the court reserved judgment and invited further written submissions from counsel on the assumption that the court might set aside the NCRMD verdicts. Crown counsel and amicus have spoken with the personnel at the psychiatric facility where the appellant is being held and have provided helpful and detailed analyses of the available sentencing options as they see them.

[29] Crown counsel, having had the opportunity to consider the question of sentence in more detail, has changed her position since oral argument. She now submits the court should remit the matter to the trial judge for sentencing on the robbery conviction. In her submission:

The trial court is better positioned to determine what resources are available and how they can be accessed.

[30] Crown counsel anticipates that if sentencing is remitted to the trial judge, the appellant will be sentenced in late April or sometime shortly thereafter. Counsel submits that the appellant could be released on bail pending his appearance in the trial court on the condition that he continue to reside in the psychiatric facility where he is presently being held. Presumably, this would give the personnel at the facility the opportunity to assist the appellant in formulating a release plan.

[31] Crown counsel’s suggestion is sensitive to the mental health problems faced by the appellant and the risk that he might pose were he immediately and unconditionally released into the community.

[32] Like Crown counsel, amicus is very much aware of the challenges that the appellant presents to the sentencing process. He submits, however, that no purpose would be served by remitting sentencing to the trial judge. He also argues, based on his understanding of the relevant authorities, that no term of a probation order or conditional sentence could be imposed requiring the appellant to submit to the treatment regime of the psychiatric facility. The appellant has indicated to amicus that he is opposed to any order that would require him to submit to treatment. Amicus takes the position that the appellant has effectively served a longer sentence than is merited by the offence. He submits that while “time served” is not an available sentence for technical reasons, the appellant should not be punished any further. Amicus submits that it would be appropriate to place the appellant on probation for a short time period and only on the statutory probationary terms.

[33] Having set aside the NCRMD verdict and entered a conviction on the robbery charge, the penalty to be imposed on the appellant must comply with the requirements of Part XXIII of the Criminal Code. First and foremost in this case, the sentence must be proportionate to the gravity of the offence and the offender’s responsibility: s. 718.1. A sentence which is not proportionate cannot be imposed even if, because of the appellant’s mental health problems, that sentence would benefit both the community and the appellant.

[34] The appellant has spent about 44 months in custody since his arrest on these charges. He has been detained in a psychiatric facility for all but the first few months of that time period.

[35] The robbery conviction is a serious one. I am sure the victims were terrified. The appellant has a lengthy record, although most of the record involves property related crimes. He has not been previously sentenced to a period of incarceration in the penitentiary. Nothing in the psychiatric material that was before the trial judge would provide any grounds for mitigating the sentence. Had the appellant pled guilty to robbery, a penitentiary sentence would have been an appropriate disposition under the sentencing principles and objectives outlined in Part XXIII of the Code.

[36] Without attempting to fix a precise number as the appropriate “credit” for the appellant’s incarceration since his arrest, I am satisfied that the time he has spent in custody exceeds the time he would have been incarcerated had he pled guilty to the robbery charge in December 2007 and received an appropriate sentence. No further incarceration can be justified on any applicable sentencing principle. Nor would any purpose be served by a probation order.

[37] It may well be that the appellant should remain in a psychiatric facility. However, to achieve that end, the authorities will have to look to the civil commitment process.

[38] Any sentence that this court imposes on the robbery charge commences when that sentence is pronounced. Consequently, a sentence of “time served” cannot be imposed. Having regard to the time spent in custody and the nature of the offence and to ensure compliance with the technical requirements of the Criminal Code, I would impose a sentence of one day on the robbery charge: see R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723 at paras. 17-18.

V

Conclusion

[39] I would allow the appeal, set aside the NCRMD verdicts on all counts, enter a conviction on the robbery charge, and direct a new trial on the resist arrest charges. On the robbery charge (bearing in mind the three years and eight months spent in custody), I would impose a sentence of one day.

RELEASED: “DD” “APR 11 2011”

“Doherty J.A.”

“I agree H.S. LaForme J.A.”

“I agree G.J. Epstein J.A.”