Court of Appeal for Ontario

CITATION: R. v. Cotterell, 2013 ONCA 446

DATE: 20130625

DOCKET: C55826

Doherty, Simmons and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Craig Cotterell

Appellant

Counsel:

Erin Dann, for the appellant

Marcella Henschel, for the respondent

Heard and released orally: May 24, 2013

On appeal from the decision of the Summary Convictions Appeal Court dated July 9, 2012 by Justice Anne Mullins of the Superior Court of Justice, dismissing the appeal from the conviction entered on January 18, 2007 by Justice J.J. Keaney of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant applies for leave to appeal from the decision of a summary conviction appeal court judge dismissing his appeal from two not criminally responsible (“NCR”) verdicts.

[2] In our view, leave to appeal must be granted and this appeal must be allowed.

[3] The appellant pleaded guilty in the Ontario court to three offences: theft under; threatening to use a weapon during an assault and uttering a death threat.

[4] Prior to the pleas being entered the Crown requested an assessment to determine whether the appellant was criminally responsible. The appellant opposed this request but it was granted nonetheless.

[5] Despite the appellant's consistent opposition to NCR verdicts, and despite the presence of amicus, the hearing to determine whether the appellant was NCR proceeded virtually as if the issue was uncontested.

[6] The hearing proceeded on the same day an assessment report opining that the appellant suffers from schizophrenia and could qualify for an NCR defence was received. Prior to the hearing, and after they had an opportunity of reviewing the assessment report, Crown counsel, amicus and the trial judge met in chambers.

[7] The hearing then proceeded in what can only be described as a summary fashion.

[8] The assessment report was admitted as an exhibit without comment on whether the author would testify.

[9] After very brief submissions from counsel and amicus, the trial judge invited the appellant to make submissions. Although the trial judge told the appellant he was entitled to say anything he wished, in essence he directed the appellant to make sentencing submissions on the theft under charge.

[10] The trial judge proceeded to sentencing immediately. He found the appellant guilty on the theft under charge based on the appellant's conduct in attempting to conceal his activities in the store, but entered verdicts of NCR on the assault charge and the uttering threats charge based on the assessment report. The charges forming the subject matter of the NCR verdicts were referred to the Ontario Review Board without further submissions.

[11] On his appeal to the summary conviction appeal court, the appellant raised substantially the same issues he seeks to raise in this court: i) he was improperly excluded from the judicial pre-trial; ii) given his status as an unrepresented litigant, the trial judge failed in his duty to assist him; and iii) the verdicts were inconsistent and unreasonable. The summary conviction appeal court judge rejected these grounds.

[12] In all the circumstances, this is an appropriate case in which to grant leave to appeal. The procedural errors alleged, although specific to this case, are sufficiently meritorious having regard to the serious impact on the appellant’s liberty interest to justify granting leave.

[13] In our view, having regard to the appellant’s consistent opposition to an NCR verdict, the trial judge failed to do enough to ensure that the unrepresented appellant understood his procedural rights at the hearing.

[14] For example, the trial judge did not inform the appellant of his right to testify or to call other evidence, of his right to cross-examine the author of the assessment report or of his right to obtain another assessment report. The trial judge never raised the possibility of differing verdicts on the various charges and he never made clear to the appellant that he (the appellant) was entitled to make submissions on the NCR issue. In the light of the appellant's position on the NCR issue, it was essential that he understand these rights.

[15] No evidence was adduced before us concerning what happened at the in-chambers conference that preceded the appellant's guilty pleas. In the absence of such evidence, we are reluctant to draw any inferences.

[16] In our view, however, at a minimum, it was incumbent on the trial judge to confirm on the record that such a meeting had taken place. Moreover, in the light of the failure of amicus to make any statements on the record confirming the appellant's position concerning his procedural rights, it was incumbent on the trial judge to ensure that the appellant understood those rights.

[17] We have no doubt that the participants in this hearing were motivated by a desire to do what they perceived was in the appellant's best interests, and in that regard, they may well have been correct. Nonetheless, in all the circumstances, in our view, the criminal responsibility hearing was so lacking in an appearance of fairness as to give rise to a miscarriage of justice.

[18] We do not accept the appellant's argument that the NCR verdict was unreasonable. In the assessment report, Dr. Pallandi said:

However, his own account is radically divergent from that contained in official records where he was behaving in a bizarre fashion including using weapons in an unpredictable and clearly psychotic fashion. As such, one would be very concerned about [the appellant’s] self-report as it relates to his mental state at the critical moments.

If one were to ascribe relatively more weight to the official or independent version of his mental state at the time of the commission of the offences, one would be certainly compelled to believe that he would have been unable to know the wrongfulness of his actions, or at least to have access to that requisite knowledge given the overall burden of his illness that he was experiencing.

In short, although [the appellant] tends to disagree, I am of the opinion that he would, in fact, qualify for a defence of Not Criminally Responsible on account of Mental Disorder concerning the present offences.

[19] In our view, standing unchallenged, this opinion could provide a basis to ground the NCR verdicts.

[20] The appeal is allowed, the Not Criminally Responsible verdicts are set aside and a new trial is ordered.

“Doherty J.A.”

“Janet Simmons J.A.”

“G.R. Strathy J.A.”