Her Majesty the Queen v. Szostak

[Indexed as: R. v. Szostak]

111 O.R. (3d) 241

2012 ONCA 503

Court of Appeal for Ontario,

Rosenberg, Cronk and LaForme JJ.A.

July 19, 2012

Criminal law -- Counsel -- Ineffective assistance of counsel -- Defence counsel raising fitness to stand trial and later not criminally responsible ("NCR") without instructions -- Defence counsel entitled to raise fitness to stand trial without instructions -- Trial judge finding accused fit -- After conviction defence counsel suggesting accused might have mental disorder and judge ordering s. 672.11(b) assessment to determine if accused NCR -- Accused later providing explicit instructions to counsel to oppose NCR verdict and defence counsel complying with instructions -- Trial judge finding accused NCR -- Accused appealing arguing that NCR verdict result of ineffective assistance of counsel and tendering fresh evidence -- Fit accused having constitutional right to control conduct of defence and counsel not permitted to raise NCR without instructions -- Fresh evidence tendered by accused failing to establish that defence counsel did not have instructions to initially raise NCR defence -- Accused's appeal dismissed.

Criminal law -- Defences -- Not criminally responsible on account of mental disorder -- Accused convicted of threatening and criminally harassing his former common law wife -- Psychiatric assessment indicating that accused suffered from alcohol-related dementia and that he believed he was morally justified in threatening and harassing complainant because of delusion that his son was in danger from complainant's boyfriend -- Finding that accused was not criminally responsible on account of mental disorder being reasonable.

The accused was charged with threatening and criminally harassing his former common law wife. At the opening of the trial, defence counsel, in the absence of the accused, raised the issue of fitness to stand trial. He told the trial judge that he had represented the accused in the past and believed him to be brain-damaged. After receiving the results of a brief psychiatric evaluation, the trial judge found that the accused was fit to stand trial. The accused admitted threatening the complainant but claimed that his actions were justified because the complainant's boyfriend, S, posed a threat to their son. The trial judge found the accused guilty on both counts. The Crown sought a pre-sentence report and the judge raised the issue of whether an assessment should be ordered pursuant to the [Mental Health Act, R.S.O. 1990, c. M.7