COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2012 ONCA 695

DATE: 20121016

DOCKET: C45773

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Williams

Appellant

Justin Williams, acting in person

Paul Burstein and Bernadette Saad, amicus curiae

Scott Latimer, for the respondent

Heard: October 2, 2012

On appeal from the conviction entered on August 28, 2005 and the sentence imposed on December 1, 2005 by Justice Richard D. Schneider of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] At the conclusion of oral argument, we announced that, for reasons we would later provide, the appeal was allowed, the pleas of guilty and consequent findings of guilt and of not criminally responsible on account of mental disorder (NCRMD) were set aside and a new trial ordered on the counts of failure to appear and common nuisance. These are our reasons.

The Background

[2] About two months after he had been found unfit to stand trial and remanded to the Centre for Addiction and Mental Health (CAMH) subject to a treatment order, the appellant appeared with counsel before the judge presiding in the Mental Health Court at Old City Hall in Toronto.

[3] The offences with which the appellant was charged included several counts of failing to comply with release and probation orders and single counts of causing a disturbance and of common nuisance. With the exception of the common nuisance count, which is exclusively indictable, Crown counsel elected to proceed summarily.

The Fitness Hearing

[4] Proceedings began with a fitness hearing.

[5] The presiding judge had the benefit of a very recent psychiatric report from CAMH that described the appellant's fitness as "arguable and variable". The reporting psychiatrist pointed out that the issue of the appellant's fitness to stand trial would have to be established at his next court appearance because his mental condition fluctuated markedly from day to day. The psychiatrist noted that the appellant would likely plead guilty to the charges "even if he were unable to recollect what issues are in question".

[6] A forensic psychiatrist testified at the fitness hearing. She described the appellant as "marginally fit". She gave evidence that the appellant's fitness tended to "fluctuate very rapidly". She expressed concern about the appellant's poor attention span, confusion, and the extent of his disorganization.

[7] Crown and defence counsel were in agreement that the appellant was then fit to stand trial. The presiding judge was clearly concerned about the appellant's fitness and the variability of his condition, but found him fit to stand trial.

The Plea Proceedings

[8] After the finding of fitness, counsel for the appellant indicated that the appellant wanted to have a bail hearing. After a brief adjournment while the judge dealt with other cases, counsel for the appellant returned, waived the bail hearing and consented to the appellant's detention.

[9] The appellant interrupted proceedings to indicate that he wanted to plead guilty to the charges. Trial counsel confirmed that the appellant wanted to plead guilty then and there. Counsel also advised the judge, and the Crown confirmed, that the Crown intended to have the appellant assessed for criminal responsibility and, ultimately, to have him found NCRMD.

[10] The appellant was arraigned and entered pleas of guilty to all charges. Crown counsel read a summary of the relevant facts and the appellant's counsel confirmed their correctness. The circumstances of the common nuisance offence were that the appellant lit and smoked some cigarettes around the pumps at a gas station in downtown Toronto. He refused to stop until arrested by police.

[11] The presiding judge did not conduct a plea inquiry to satisfy himself that the pleas of guilty were voluntary. Nor did he attempt to determine whether the appellant understood that the plea of guilty was an admission of the essential elements of each offence or that the appellant understood the nature and consequences of his pleas, especially Crown counsel's announced intention to seek a verdict of NCRMD.

[12] The presiding judge entered findings of guilt on all the charges to which the appellant had pleaded guilty.

The Assessment Order

[13] Following the entry of the findings of guilt, counsel discussed the Crown's request for an assessment on the issue of criminal responsibility. It was made clear by both defence and Crown counsel that the Crown would be seeking a finding of NCRMD when proceedings resumed after the assessment.

[14] One month after the appellant had entered his pleas of guilty and had been found guilty of all offences by the presiding judge, he appeared at the hearing to determine his criminal responsibility for two offences: failure to appear in court and common nuisance.

The Criminal Responsibility Hearing

[15] Crown counsel called an experienced forensic psychiatrist involved in the appellant's assessment to give evidence on the issue of criminal responsibility. The doctor explained that the appellant suffered from a chronic major psychiatric disorder, in all likelihood a schizoaffective psychosis, that rendered him incapable of appreciating the nature and consequences of his conduct of smoking near the gas pumps. Nor would the appellant have the capacity to remember when he was required to be in court and actually get himself there.

[16] The psychiatrist said it was almost impossible to carry on a conversation with the appellant, especially about the circumstances of the common nuisance offence. The appellant's response when asked about the offence was to laugh inappropriately and to talk about something else. The appellant told the doctor that he was going to plead guilty to the charges even though he displayed no understanding about the charges.

[17] The appellant testified on the inquiry into his criminal responsibility. He admitted that he was standing about five feet away from the gas pumps. He said that smoking near gas pumps could cause an explosion that could hurt people, including himself. He appreciated that his conduct was wrong.

[18] In cross-examination, the appellant testified that he didn't know what he was doing when smoking by the gas pumps or appreciate the danger of doing so including causing an explosion. He admitted he had no capacity to remember to come to court.

[19] After brief argument, the presiding judge entered a verdict of NCRMD on the counts of common nuisance and of failure to appear in court, and remanded the appellant to CAMH to await a disposition hearing by the Ontario Review Board.

[20] Convictions were recorded on all other counts and concurrent non-custodial sentences imposed.

The Initial Appeal

[21] The appellant filed an inmate's notice of appeal against conviction almost seven months after the NCRMD hearing. The appeal was abandoned several years later and dismissed as abandoned by a panel of this court. A year ago, another panel of the court ordered that the appeal be re-opened in connection with the finding of NCRMD. Subsequently, Mr. Burstein was appointed amicus.

This Appeal

[22] Amicus advances two grounds of appeal in support of his position that the underlying findings of guilt should be set aside. He submits that the appellant's guilty plea was invalid because it was involuntary, uninformed, and equivocal. Amicus argues further that counsel who represented the appellant at trial provided assistance that fell below the standard of reasonable professional competence.

[23] The respondent took the position that the appellant's pleas of guilty were voluntary, informed and unequivocal, thus should not be set aside. According to the respondent, the appellant's claim of ineffective assistance of counsel should also fail.

[24] Without objection, we received evidence that was not available to the presiding judge. The fresh evidence included the affidavits of the appellant and trial counsel, as well as transcripts of their respective cross-examinations.

The Validity of the Guilty Pleas

[25] The cumulative effect of several circumstances satisfies us that, in this case, the failure of the presiding judge to conduct a plea inquiry vitiates the appellant's pleas of guilty, the findings of guilt, and of NCRMD that followed. We reach this conclusion for several reasons.

[26] First, as the various assessment reports and the evidence adduced at the fitness hearing that preceded entry of the guilty pleas made clear, the appellant suffered from a chronic and severe major mental illness with psychotic features. He functioned intellectually in the Extremely Low Range. The fitness of the appellant to stand trial, itself not a rigorous standard, was in a state of constant flux drifting from one side of the line to the other and back again. The appellant displayed poor attention, some confusion, and varying degrees of disorganization. As the presiding judge observed:

I don't know that after reading this and hearing Dr. Chatterjee we could have any confidence that at the magic moment the stars are aligning such that he can plug into the trial process.

[27] Second, in two psychiatric assessments completed shortly before the proceedings under appeal, the author, a very experienced forensic psychiatrist, indicated that during his interview the appellant volunteered that he would plead guilty to the charges although he didn't know or couldn't remember what the charges were.

[28] Third, at the conclusion of the fitness hearing, the presiding judge observed:

Dr. Chatterjee says that, while marginal, he's just over the line. So I suppose on a balance of probabilities I'll find that he's fit, although I do have concerns about, and I know that this is a concern of mine, not necessarily one that's reflected in the case law, whether there isn't a prospective element to the issue of fitness.

[29] Fourth, some of the appellant's own remarks during the proceedings that immediately followed the finding of fitness, but before entry of his pleas of guilty[^1] raise questions about the extent of the appellant's understanding of the proceedings. After the judge remanded the appellant for an assessment of his criminal responsibility, the appellant asked:

So – so what do I get for my – for these charges?

[30] Fifth, a valid plea of guilty includes an understanding on the part of an accused that the plea is an admission of the essential elements of the offence to which the plea has been entered. The appellant pleaded guilty to common nuisance. The fresh evidence materials, which include affidavits and cross-examinations of the appellant and trial counsel, as well as the statement of facts recited by Crown counsel in support of the plea, cast doubt on the extent to which the agreed facts could support a finding of guilt and whether the appellant understood[^2] the essential elements of the offence and actually admitted them.

[31] Sixth, the nature of the proceedings in this case, an application by the Crown to have the appellant declared NCRMD after a finding of guilt, required an inquiry to ensure the appellant understood the consequences of a finding of NCRMD.

[32] The appellant's considerable experience with the criminal justice system appears to consist of arrests associated with his panhandling activities and prosecutions for failure to abide by release forms or probation orders. He pleads guilty and is sentenced to time served or required to comply with a probation order. He returns to the streets on the day of sentence or shortly thereafter.

[33] In this case, the appellant pleaded guilty to failure to appear in court and common nuisance. The latter offence involves smoking cigarettes too close to some gas pumps and failing to move on when told to do so. Although his lawyer had explained the NCR procedure and consequences to him shortly after Crown counsel's intention to pursue such a path became clear, it was incumbent on the presiding judge to satisfy himself by inquiry into the extent and currency of the appellant's understanding: see R. v. P. (A.), 2011 ONCA 673, at para. 8.

Conclusion

[34] It was for these reasons that we allowed the appeal, set aside the pleas of guilty, findings of guilt and NCRMD, and ordered a new trial. It will be up to Crown counsel, mindful of the nature of the offences and the time that has elapsed between their alleged commission and this decision, to determine whether to proceed afresh, or to utilize provincial mental health legislation to facilitate the treatment the appellant so obviously requires.

"Robert Sharpe J.A."

"E.E. Gillese J.A."

"David Watt J.A."

[^1]: The appellant interrupted proceedings during discussions about a bail hearing to say "I just want to plea to the …"

[^2]: The appellant's cross-examination reveals a person who appears to agree with nearly every suggestion made by the questioner, even if a later answer plainly contradicts one given earlier.