CITATION: R. v. Krivicic, 2011 ONCA 703
DATE: 20111114
DOCKET: C50605
COURT OF APPEAL FOR ONTARIO
Blair, Juriansz JJ. A. and Pepall J. (ad hoc)
BETWEEN
Her Majesty the Queen
Respondent
and
Elvis Richard Krivicic
Appellant
Elvis Richard Krivicic, acting in person
Paul Burstein, as amicus curiae
Alexander Alvaro, for the respondent
Heard: October 26, 2011
On appeal from the verdict of not criminally responsible by reason of mental disorder entered by Justice Gary F. Hearn of the Ontario Court of Justice dated February 27, 2007.
Pepall J. (ad hoc):
A. Introduction
[1] The central issue on this appeal is whether the trial judge made an error in law by failing to adequately consider the appellant’s fitness to stand trial.
[2] On February 27, 2007, the appellant entered guilty pleas to a single count of criminal harassment and two counts of failure to comply with his recognizance of bail. He was found not criminally responsible on account of a mental disorder (“NCR”). Since that time, he has been in custody at a mental health care facility.
[3] The appellant filed an appeal against his conviction and sentence and challenged the NCR finding. The appellant asserts his innocence and submits that he has been denied due process and a right to a trial.
[4] After the appellant had discharged a number of appellate counsel, this court appointed Mr. Paul Burstein to act as amicus curiae on the appeal. He advised the court that the appellant, who was present in court for the appeal, does not accept that he suffers from a mental disorder and opposes the submissions of amicus.
[5] Relying on s. 686 (1)(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46, amicus submits that the trial judge erred in law by failing to make necessary inquiries on whether to hold a fitness hearing and, relying on s. 686 (1)(a)(iii) of the Code, that there was a miscarriage of justice. He asks that the court set aside the trial judge’s finding that the appellant was NCR at the time of the alleged offences and declare that the appellant was unfit to stand trial when he entered guilty pleas in February 2007. Alternatively, amicus asks that the matter be remitted to the trial court for a hearing to properly determine the appellant’s fitness to stand trial.
[6] Amicus argues that the trial record and the proposed fresh evidence show that there were reasonable grounds to believe that the appellant was unfit to stand trial on February 27, 2007. In particular, the appellant’s rare mental disorder, erotomania, rendered him incapable of understanding the possible consequences of the proceedings. This mental disorder gave rise to the NCR finding and equally should have raised concerns about the appellant’s fitness to stand trial. Amicus submits that the issue of the appellant’s fitness was never litigated and does not appear to have been the subject of a formal psychiatric assessment.
[7] Amicus advances the argument so that the appellant may avail himself of a possible stay of proceedings in the event he no longer poses a significant threat to the safety of the public and a stay is in the interests of the proper administration of justice.
[8] For the reasons that follow, I would dismiss these arguments and order that the appeal be dismissed.
B. Background
(i) The Charges
[9] The harassment charge alleged that between September 23, 2006 and November 7, 2006, the appellant harassed Katherine Eileen Dietrich by repeatedly communicating with her and with Paul and Connie Dietrich, causing Katherine Eileen Dietrich to reasonably fear for her safety and that of Paul and Connie Dietrich. The failure to comply charges alleged that on December 18, 2006, and January 11, 2008, the appellant failed to abstain from communicating or associating or having any contact with Katherine Eileen Dietrich, Paul and Connie Dietrich, and Sandra Dietrich.
[10] In early September, 2006, the police received a complaint from Sandra Dietrich reporting that the appellant had been calling her residence on numerous occasions and asking to speak with “Katie Dietrich.” The appellant also attended Sandra Dietrich’s residence in his attempt to deliver flowers to Ms. Dietrich. The police spoke with the appellant and received his assurance that he would stop trying to contact Ms. Dietrich through the family of Sandra Dietrich.
[11] On September 23, 2006, Connie and Paul Dietrich, the parents of Ms. Dietrich, received a telephone message from the appellant. The appellant also attended at their residence with flowers. The appellant was told that Ms. Dietrich did not live there and to stop coming by their residence. Ms. Dietrich’s parents subsequently received numerous letters and several telephone messages from the appellant.
[12] Ms. Dietrich provided the police with a statement indicating that she did not know the appellant, even though they had attended the same high school some years ago. She stated that she did not want to have any contact with the appellant. While Ms. Dietrich did not live in the same area as the appellant, she indicated that she and her parents were afraid for their personal safety.
[13] The appellant was arrested on November 16, 2006, and charged with criminal harassment contrary to s. 264 of the Code. On November 17, 2006, he was released on a recognizance of bail with his mother as surety. Despite having a bail condition prohibiting further contact with Ms. Dietrich and her parents, the appellant attempted to contact Ms. Dietrich again, by letter, on December 18, 2006. In this letter, he reiterates his love for her and implores her not to send him back to jail.
[14] The appellant was again arrested on December 20, 2006. He was further charged with breaching the no contact provision of his bail and with criminal harassment. The appellant was held in custody. On January 2, 2007, the appellant was released on a recognizance of bail with his mother as surety. He was also ordered to meet Dr. William J. Komer, a psychiatrist, for an examination on January 5, 2007.
[15] On January 11, 2007, the appellant sent another letter to Ms. Dietrich. He also telephoned her parents.
[16] On January 12, 2007, the appellant turned himself into the police and was arrested on another charge of failing to comply with his recognizance of bail. He has been in custody ever since.
(ii) Dr. Komer’s Reports
[17] Dr. Komer met with the appellant on January 5 and January 12, 2007. Dr. Komer provided a report to the court on January 24, 2007. He was not formally asked to address fitness to stand trial but he did so nonetheless. He reported that the appellant had a major mental illness, namely a delusional disorder. Dr. Komer stated that the appellant was aware of the nature and object of the proceedings and their potential consequences and that he would be able to meaningfully communicate with counsel and follow court proceedings. He reported that in his opinion, the appellant was fit to stand trial. Dr. Komer also opined that at the time of his alleged offences, the appellant was suffering from a mental disorder that rendered him incapable of knowing the wrongfulness of his actions. He stated that the appellant was in need of psychiatric treatment, support, and monitoring that would best be initiated from within a psychiatric hospital setting. The appellant was, in Dr. Komer’s opinion, at high risk for having further conflicts with the law and a potential significant threat to the safety of the public.
[18] On January 30, 2007, the trial judge conducted a pretrial. With the consent of the Crown and defence counsel, the trial judge made a s. 48 order for the assessment of the appellant’s criminal responsibility with regards to mental disorder.
[19] Dr. Komer reported to the court again on February 21, 2007. He stated that the appellant was aware of the nature and object of the proceedings and their potential consequences and would be able to meaningfully communicate with counsel and follow court proceedings. He stated twice in his report that in his opinion, the appellant was fit to stand trial. As in his January 27, 2007 report, he opined that the appellant had a delusional disorder and at the time of his alleged offences, he was suffering from a mental disorder that rendered him incapable of knowing the wrongfulness of his actions.
[20] In his report, Dr. Komer addressed the appellant’s description of the circumstances surrounding his alleged offences. The appellant expressed the belief that he did not do anything morally wrong and that the alleged victim was interested in him and used the whole neighbourhood to send him messages. He wanted the alleged victim to “come clean.” He said that he thought the alleged victim liked him, maybe loved him, and wanted to have contact with him. The appellant described his last letter to the complainant stating that “the letter was to get her to speak up in his defence” about the charges. He said he wanted the alleged victim to “speak the truth.”
(iii) Outcome of the Trial
[21] On February 27, 2007, the appellant appeared for trial. He was represented by counsel and his parents were present in court. There was no fitness to stand trial hearing. Both of Dr. Komer’s reports were before the court. Both the Crown and the defence agreed that the appellant was NCR. The appellant pled guilty to the single count of criminal harassment between September 23, 2006 and November 7, 2006 and to both counts of failure to comply. In his reasons, the trial judge noted that the matter had been judicially pre-tried and the issues were discussed in further detail than might have been advanced that day. He observed that the appellant had been the subject of a number of assessments and referred to both of Dr. Komer’s reports.
[22] There is no evidence that any concern about the appellant’s fitness to stand trial was in issue on February 27, 2007. None of the appellant’s counsel, the Crown or the trial judge raised any concern. There is also no suggestion of ineffective assistance of counsel, although amicus investigated this issue.
[23] The trial judge found the appellant to be NCR on all counts and referred the matter to the Ontario Review Board (the “ORB”) for a disposition hearing pursuant to section 672.47(1) of the Code.
[24] The ORB held its initial disposition hearing on March 30, 2007. Dr. Komer testified before the ORB and stated that delusional disorders like the one experienced by the appellant are typically harder to treat because they tend to be more ingrained. The ORB concluded that the appellant remained a significant threat and he should continue to be detained.
(iv) Application for Admission of Fresh Evidence
[25] Amicus brought an application for the admission of fresh evidence to assist the court in determining whether there were reasonable grounds to believe that the appellant was unfit to stand trial on February 27, 2007. The fresh evidence consisted of an affidavit of Dr. Derek Pallandi, a staff forensic psychiatrist at the Law and Mental Health Programme at the Centre for Addiction and Mental Health.
[26] Dr. Pallandi did not assess the appellant. Nonetheless, he concluded that he had reasonable grounds to believe that the appellant’s mental disorder prevented him from understanding the possible consequences of the legal proceeding, even though he may well have understood the general nature of that proceeding and may have been able to communicate with his counsel. Dr. Pallandi opined that the appellant was diagnosed as suffering from a mental disorder commonly referred to as delusional disorder – erotomanic type. This type of delusional disorder is almost always an all encompassing one and would define the mentally ill individual’s decision-making in every aspect of his or her life. It typically produces, in the mentally disordered individual, a fixed set of delusional beliefs that another person has a deep amorous interest in the delusional individual, even though that other person may not know the mentally disordered individual or may have repeatedly expressed a lack of such interest.
[27] Dr. Pallandi stated that as the appellant’s delusional beliefs included the false belief that the complainant would never do anything to harm him, those delusional beliefs would have prevented the appellant from understanding the possible consequences of the proceedings. The appellant’s mental disorder would have caused him to believe that he would be exonerated at trial if the complainant were brought to court because she would inevitably testify that she was in favour of the appellant’s efforts to contact her. Due to the delusional disorder, the only possible consequence of a fair trial would be a finding of not guilty. He pleaded guilty because he believed that this would resolve the matter more quickly and expedite his release.
[28] Even though he had not assessed the appellant at any time, Dr. Pallandi stated that his review had provided him with adequate information upon which to provide an expert opinion on the probability that the appellant was unfit to stand trial on these charges in February of 2007. His review consisted of the record of proceedings concerning the February trial, reports to the court dated August 22, September 29, 2008 and January 27, 2009 from Dr. Angus McDonald, a psychiatrist, and evidence of Dr. Arun Prakash, a psychiatrist, given on July 17, 2009 before Flynn J. in Kitchener, Ontario.
[29] On September 29, 2008, Dr. McDonald conducted an NCR assessment for other charges that had been laid against the appellant in May, 2008. Dr. McDonald wrote that he did not regard the appellant as unfit “although his fitness at best is not robust.” In his January 27, 2009 report, Dr. McDonald wrote that “we are doing little or nothing to maintain his Fitness to Stand Trial which has not been in question for a considerable period.”
C. Analysis
[30] Section 2 of the Code defines “unfit to stand trial” as meaning:
unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to
a) understand the nature or object of the proceedings,
b) understand the possible consequences of the proceedings, or
c) communicate with counsel.
[31] Pursuant to section 672.22 of the Code, an accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial. The court may order an assessment of the mental condition of the accused if it has reasonable grounds to believe that such evidence is necessary to determine whether the accused is unfit to stand trial: section 672.11. In addition, under s. 672.23, where the court has reasonable grounds, at any stage of proceedings before a verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue of fitness of the accused be tried. An accused or a prosecutor who makes an application has the burden of proof that the accused is unfit to stand trial.
[32] Unlike s. 16 of the Code, which is concerned with an accused’s mental state at the time of the offence, s. 2 is concerned with an accused’s mental state at any stage of the proceedings before a verdict is rendered. As stated by Sopinka J. in R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at p. 933,
[t]he fact that an accused is not criminally responsible within the meaning of s. 16 does not mean that he or she is unfit to stand trial. If the contrary were true there would be little purpose in providing for the plea authorized by s. 16. Most persons who suffered from the mental disorder defined in the section would be exempted from trial and would not get to plead until they had recovered subsequent to the date of the offence.
[33] The statutory definition of unfit to stand trial found in s. 2 was added to the Code effective February 4, 1992, and it essentially codified the existing case law on the subject.
[34] This court first addressed the definition in s. 2 in R. v. Taylor (1993), 1992 CanLII 7412 (ON CA), 11 O.R. (3d) 323 (C.A.). In that case it was conceded that the accused met the first two criteria found in s. 2, but the parties disagreed over whether the third, namely the ability to communicate with counsel, had been met. Unlike this case, the amicus in Taylor took the position that the accused was fit to stand trial. Amicus advocated a limited cognitive capacity test in which the presence of delusions would not vitiate the accused’s fitness to stand trial unless the delusion distorted the accused’s rudimentary understanding of the judicial process. The court examined the rationale for the fitness rules, stating at p. 338:
…the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way. At the same time, one must consider that principles of fundamental justice require that a trial come to a final determination without undue delay. The adoption of too high a threshold for fitness will result in an increased number of cases in which the accused will be found unfit to stand trial even though the accused is capable of understanding the process and anxious for it to come to completion.
In addition, adopting a high threshold of fitness, including a “best interests” component, derogates from the fundamental principle that an accused is entitled to choose his own defence and to present it as he chooses.
The “limited cognitive capacity” test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have a trial within a reasonable time.
[35] The limited cognitive capacity test was adopted by the Supreme Court of Canada in R. v. Whittle. Sopinka J. stated at p. 933 of that case that s. 2 required limited cognitive capacity to understand the process and to communicate with counsel.
[36] This court elaborated on the appropriate inquiry in R. v. Morrisey, 2007 ONCA 770, (2007) 87 O.R. (3d) 481, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 102. Blair J.A. stated at para. 36 that an accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice: “[m]eaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness.”
[37] Amicus submits that following Taylor, the focus of the fitness inquiry has been on the accused’s ability to communicate with counsel and there has been little consideration of the other two branches of s. 2 of the Code, namely understanding the nature or object of the proceedings and understanding the possible consequences of the proceedings.
[38] In this case, the trial judge had reviewed both of Dr. Komer’s reports. Both of Dr. Komer’s reports expressly addressed all three of the branches found in s. 2 of the Code. The record does not suggest that fitness was only examined with respect to the third branch or that Dr. Komer misunderstood the section 2 criteria. The trial judge was alert to and addressed his mind to the issue of fitness. He was entitled to rely on Dr. Komer’s reports.
[39] In addition, the appellant was represented by counsel, and neither the Crown nor the defence raised any challenge nor expressed any concern regarding the appellant’s fitness to stand trial.
[40] Furthermore, the record, including the appellant’s correspondence to the complainant requesting that she help him and stop talking with the prosecutors and the police, was not inconsistent with a conclusion of fitness. There is also nothing in the record to suggest that the appellant believed the complainant would come to his rescue were he to enter a plea of guilty. The evidence before the trial judge did not show that the appellant was probably unfit to stand trial.
[41] In my view, there was no error in law on the part of the trial judge nor a miscarriage of justice.
[42] As for the fresh evidence, Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775 provides that an appellate court’s overriding consideration in exercising its discretion to admit fresh evidence must be the interests of justice. The evidence must be relevant, credible, and reasonably expected to have affected the result. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, although this general principle will not be applied as strictly in criminal cases as in civil cases. A failure to meet the due diligence requirement should not “override accomplishing a just result”: see R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at para. 56.
[43] Certainly with the exercise of due diligence, the fresh evidence could have been proffered at trial. Even if one ignores that fact, Dr. Komer concluded, in two separate reports close to the time of trial, that the appellant was fit for trial. Dr. McDonald assessed the appellant in 2008 and 2009 and considered him fit to stand trial on different charges. Both physicians’ opinions are more reliable indicators of the appellant’s state of mind at or near the time of his trial than is Dr. Pallandi’s four years later. In his cross-examination, Dr. Pallandi agreed that in principle, Dr. Komer was in a more advantageous position to assess fitness. Dr. Pallandi also testified that it was possible that counsel could convey to the appellant the possible consequences of the proceedings and that the appellant must have been aware that certain consequences would flow from a plea of guilty as opposed to a plea of not guilty.
[44] In the circumstances, I would not admit the fresh evidence. However, even if it were admitted, it would not alter the result, for the reasons expressed above.
[45] The appeal is therefore dismissed.
“S.E. Pepall J.”
“I agree R.A. Blair J.A.”
“I agree R.G. Juriansz J.A.”
RELEASED: November 14, 2011