COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Evans, 2012 ONCA 412

DATE: 20120618

DOCKET: C53599

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Evans

Appellant

Joseph Di Luca and Breese Davies, for the appellant

Nadia Thomas, for the respondent

Heard: May 17, 2012

On appeal from the verdict of not criminally responsible on account of mental disorder entered by Justice Kathleen E. McGowan of the Ontario Court of Justice, dated August 15, 2005.

Pepall J.A.:

Background

[1] On March 27, 2005, the appellant approached a couple in a van. The driver was in the process of making a withdrawal at a drive-through automatic teller machine (“ATM”). The appellant asked for help, stating that he was desperate and had a little girl. He implied that she needed some medical attention. The driver said no and suggested the appellant take her to a hospital instead of asking for money at an ATM. The appellant then thrust a large kitchen knife into the passenger compartment of the van and stated that he had AIDS and was desperate. The couple escaped and the driver called 911. The appellant was subsequently arrested and charged with one count of robbery and one count of possession of a dangerous weapon.

[2] An assessment order was made to consider the appellant’s fitness to stand trial and his criminal responsibility. Dr. William J. Komer, a psychiatrist, interviewed the appellant and wrote a report dated June 23, 2005. Dr. Komer concluded that the appellant, who was 21 at the time, had a major mental illness consistent with schizophrenia, poly-substance abuse and an anti-social personality disorder. It was Dr. Komer’s opinion that, while the appellant was fit to stand trial, at the time of the alleged offences he was incapable of knowing the wrongfulness of his actions.

[3] At his August 15, 2005 trial, the appellant, who was represented by counsel, pleaded guilty to the charge of robbery and joined the Crown in requesting a verdict of not criminally responsible on account of mental disorder (“NCRMD”) pursuant to s.16 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”). The Crown did not proceed with the charge of possession of a dangerous weapon on the basis that it was subsumed in the robbery charge.

[4] At the trial, Dr. Komer testified that the appellant was NCRMD at the time of the offence. He based this opinion on his conclusion that the appellant suffered from a major mental illness, namely schizophrenia, and stated that the appellant also had a history of substance abuse and an anti-social personality disorder. Dr. Komer’s report was filed as an exhibit. He was not cross-examined.

[5] In reliance on Dr. Komer’s evidence, the trial judge made a finding of NCRMD and remanded the appellant to the jurisdiction of the Ontario Review Board. The appellant has been detained under orders of the Board ever since.

[6] The appellant now appeals the trial judge’s NCRMD verdict and also brings an application for the admission of fresh evidence.

Fresh Evidence

[7] The fresh evidence reveals that in December 2007, Dr. Ellis, the appellant’s treating psychiatrist, expressed reservations about the appellant’s schizophrenia diagnosis. The appellant’s medication was reduced to see whether symptoms of psychosis would return. By May 2008, the appellant’s St. Thomas Regional Mental Health Care treatment team had ruled out a diagnosis of schizophrenia altogether. In November 2008, the appellant’s treatment team recommended an absolute discharge but this was not accepted by the Ontario Review Board. In January 2011, Dr. Ellis appeared as a witness before the Ontario Review Board. He testified that without medication, the appellant was functioning perfectly well. The appellant did not display the symptoms of schizophrenia and Dr. Ellis did not believe the appellant was schizophrenic in 2005.

[8] The proposed fresh evidence also includes a June 15, 2011 report of Dr. Mark Pearce of the Centre for Addiction and Mental Health. Dr. Pearce was asked whether the appellant would have met the s. 16 test absent a finding that he was suffering from schizophrenia. Dr. Pearce stated that he “would likely not have been able to conclude on balance” that the appellant was NCRMD at the time of the offence. In his opinion, the appellant would have been able to appreciate the nature and quality of his act and would have known its moral and legal wrongfulness.

[9] At the direction of this court, Dr. Komer met with the appellant in November and December of 2011 and filed a report with the court dated January 14, 2012. In his report, Dr. Komer reiterated his opinion that, at the time of the offence, the appellant was suffering from a mental disorder that rendered him incapable of knowing the wrongfulness of his actions and as such was NCRMD. Dr. Komer stated that although it is not typical for a person with schizophrenia to remain in remission of psychosis for several years without taking antipsychotic medication, this diagnosis could not be excluded. He raised the possibility of schizoaffective disorder (which differs from schizophrenia). He also stated that it was possible that the appellant had experienced a substance-induced psychosis at the time of the offence. When cross-examined on his report, Dr. Komer testified that the “best fit” for the appellant was a substance-induced psychosis.

Positions of the Parties

[10] The appellant submits that in light of the fresh evidence, the NCRMD verdict amounts to a miscarriage of justice. The appellant was found NCRMD on the basis that he was suffering delusions as a symptom of schizophrenia. This diagnosis has now been ruled out by the appellant’s treating psychiatrist and Dr. Komer himself testified that the “best fit” for the appellant was a substance-induced psychosis. The appellant asks that the NCRMD verdict be quashed and a stay of proceedings entered. Alternatively, he asks that a conviction be entered and a sentence of time served be imposed.

[11] The respondent submits that although the appellant’s progress to date suggests that he likely does not suffer from schizophrenia, he might more accurately have been diagnosed with schizoaffective disorder, which was capable of supporting the NCRMD verdict. If the appeal is allowed, the respondent’s position is that a stay of proceedings is not warranted. Rather, a conviction for robbery should be entered and a one day sentence plus probation and a s.109 weapons prohibition order should be imposed.

[12] The respondent relies on R.v.Bouchard-Lebrun, 2011 SCC 58, 2011 S.C.C. 58 and concedes that: (a) if the psychotic symptoms exhibited by the appellant at the time of the offence were the product of self-induced drug intoxication, this would not support a finding of NCRMD; and (b) an antisocial personality disorder alone does not meet the s. 16 criteria for a finding of NCRMD.

Analysis

[13] An individual is presumed to be criminally responsible for his or her actions. Section 16(1) of the Code provides an exception to that general principle:

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.

[14] A person found NCRMD may appeal on the basis that the verdict amounts to a “miscarriage of justice”: s. 686(1)(a)(iii) of the Code.

[15] In this case, the appellant was found to be NCRMD on the basis that he suffered from schizophrenia. That diagnosis has been ruled out by the appellant’s treatment team. Additionally, Dr. Komer has testified that the “best fit” for the appellant at the time of the offence was a substance-induced psychosis. The respondent concedes that a self-induced substance-induced psychosis would not support an NCRMD finding. In these circumstances, the NCRMD verdict cannot be sustained and should be set aside. It amounts to a miscarriage of justice.

[16] On the issue of remedy, the appellant seeks a stay or, alternatively, a conviction with a sentence of time served. The respondent essentially agrees with the appellant’s alternative remedy, namely, a conviction for robbery with a one day sentence. However, the respondent submits that a term of probation and a mandatory s. 109 weapons prohibition order should also be imposed.

[17] In our view, this is not one of those rare cases in which a stay of proceedings may be justified. Rather, a conviction should be entered and a sentence of one day’s imprisonment should be imposed.

[18] As for the respondent’s request for a term of probation, this issue arose in R. v. Guidolin, 2011 ONCA 264, 280 O.A.C. 387, a decision which bears some resemblance to this case. There the accused was charged with a robbery that arose at a bank machine. He was also charged with resisting arrest. A finding of NCRMD was made based on a psychiatric report that the accused had a schizoaffective psychosis, engaged in poly-substance abuse and had an anti-social personality disorder. Relying on s. 686(1)(a)(i) of the Code, amicus contended that the NCRMD verdicts were unreasonable. This court noted at para. 16 that “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.” In that case, the court held that there was no basis upon which a reasonable trier of fact could conclude that the NCRMD claim had been made out on a balance of probabilities and the verdicts were set aside. The appellant had spent approximately 44 months in custody following his arrest and had been detained in a psychiatric facility for all but the first few months of that time period. The court was satisfied that the time that the appellant had spent in custody exceeded the time he would have been incarcerated had he pled guilty and received an appropriate sentence. No further incarceration was justified nor would any purpose be served by a probation order. A sentence of one day’s imprisonment on the robbery charge was imposed.

[19] In this case, the appellant has spent seven years in custody since his arrest. As in Guidolin, the time spent in custody by the appellant is outside the range of any sentence he would have received had he pled guilty to the robbery charge in August 2005. A probation order is a form of punishment and cannot be justified given the appellant’s lengthy time in custody.

Disposition

[20] Accordingly, for the reasons given, I would admit the fresh evidence, allow the appeal, set aside the NCRMD verdict, enter a conviction on the robbery charge and impose a sentence of one day’s imprisonment, together with a mandatory s. 109 weapons prohibition order.

Released: June 18, 2012 “JL”

“S.E. Pepall J.A.”

“I agree John Laskin J.A.”

“I agree Cronk J.A.”