COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Trudel, 2015 ONCA 422

DATE: 20150611

DOCKET: C57792

Blair, Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chantal Trudel

Appellant

On appeal from the verdict of not criminally responsible on account of mental disorder entered by Justice Lise Maisonneuve of the Ontario Court of Justice, dated December 10, 2008.

Chantal Trudel, acting in person

Jill R. Presser, Amicus Curiae

Deborah Calderwood, for the respondent

Heard: February 11, 2015

Hourigan J.A.:

Overview

[1] The appellant was found not criminally responsible by reason of a mental disorder (“NCR”) in relation to one count of aggravated assault. With the assistance of amicus curiae, she appeals. She seeks an order quashing both the NCR verdict and the trial judge’s finding that the actus reus of the offence was made out. She also seeks a new trial.

[2] For the reasons that follow, I would dismiss the appeal.

Facts

[3] According to the complainant, on October 25, 2008, he made arrangements with the appellant to have sex with her for $60. He paid her $20 up front. She used that money to purchase crack cocaine, which she smoked before the pair had sex. The complainant alleged that while they were lying on a futon after having sex, the appellant pulled out a knife and stabbed him in the chest, causing two wounds. She then fled the complainant’s apartment.

[4] Investigating officers noted that there was blood on the futon and in other areas inside and outside the apartment. They seized a butcher knife with a three-inch blade, which the complainant claimed was used to stab him.

[5] The complainant told police his attacker was a woman named Chantal. When the officers located the appellant, she had blood on her clothing and was wearing only one Adidas shoe, which formed a pair with a shoe the officers had found in the complainant’s driveway. The appellant was arrested and charged with aggravated assault.

[6] On October 29, 2008, the appellant, her lawyer Joseph Addelman and Crown counsel attended before Fournier J. seeking a criminal responsibility assessment, on consent. Justice Fournier made an order for a 30-day NCR assessment. The appellant stated on the record that she would “rather not go to the hospital for 30 days.”

[7] After Fournier J. noted the return date, the appellant inquired if she would be able to return home at that time. When Fournier J. replied that it was uncertain whether the appellant would be able to go home, she indicated that she felt the situation was “not fair”. The appellant was admitted to the Royal Ottawa Mental Health Centre for the 30-day NCR assessment on October 31, 2008.

[8] On December 10, 2008, the appellant, Richard Addelman, and Crown counsel appeared before Maisonneuve J. (as she then was). Richard Addelman is the father and law partner of Joseph Addelman. Richard Addelman sought an adjournment of the trial to December 17, 2008, since both Joseph Addelman and Dr. Booth, the psychiatrist who oversaw the appellant’s NCR assessment, would be available on that date.

[9] As counsel discussed the adjournment with Maisonneuve J., the appellant was attempting to communicate with Richard Addelman. Mr. Adelman told the court: “She’s actually asking me if there is any way she can go to the hospital today.” Crown counsel noted that the appellant’s bed in the hospital had been given to another patient when she returned to the Ottawa-Carleton Detention Centre following the 30-day NCR assessment, and that there was now a waiting list for hospital beds.

[10] The complainant then asked: “So next Wednesday when I get sentenced to NCR, I’m still not going to be going [to the hospital]?” Justice Maisonneuve explained that this would depend on the availability of hospital beds after the proceedings were complete the following week. While the appellant had objected to being admitted to the hospital for the NCR assessment in October 2008, her repeated inquiries during the December 10, 2008 proceedings suggest she wished to return to the hospital at that time.

[11] Justice Maisonneuve then asked whether there was any possibility that the appellant’s trial could proceed later that same day, given that Dr. Booth was in the courthouse. Richard Addelman said that while Joseph Addelman was not available, he would review the report from the NCR assessment and attempt to get himself up to speed.

[12] Justice Maisonneuve explained the change of plans to the appellant, who asked whether there would be a hospital bed available for her later that day. Justice Maisonneuve responded that there would not, but that moving forward with the proceedings later that same day would potentially allow her to get her name on the waiting list.

[13] The trial took place that afternoon. Since Richard Addelman conceded that the actus reus of the offence was satisfied, the focus of the hearing was the NCR issue. Dr. Booth testified that in his opinion, the appellant was suffering from schizophrenia at the time of the offence, and that as a result, she did not know the wrongfulness of her actions. Richard Addelman did not cross-examine Dr. Booth, and neither party called any further evidence.

[14] Justice Maisonneuve ruled that the appellant was NCR and explained to her that she would “eventually” return to the hospital. The appellant asked when this would occur, and Dr. Booth informed the court that it would likely be within one to two weeks. Justice Maisonneuve left the appellant’s disposition to be determined by the Ontario Review Board (“ORB”).

[15] Since the order of Maisonneuve J., Joseph Addelman has represented the appellant at several ORB hearings. She has been unsuccessful in securing a discharge through the ORB process.

[16] The appellant filed an application for an extension of time to appeal the order of Maisonneuve J. on July 29, 2013. On August 14, 2013, Rosenberg J.A. granted that extension.

[17] The appellant filed fresh evidence on appeal, which was admitted on consent. In her fresh evidence affidavit she states that she was confused during her appearances before Fournier J. and Maisonneuve J.

[18] The appellant claims that neither Joseph Addelman nor Richard Addelman informed her that a possible consequence of an NCR finding was indefinite detention in a mental health facility. According to the appellant, had she been advised about this potential consequence, she would not have consented to the assessment and she would have instructed her counsel to oppose the NCR finding.

[19] The appellant says that after the NCR assessment, Joseph Addelman advised her that the Crown was seeking a two-year sentence on a guilty plea but that she also had the option of going to the hospital. She claims that Joseph Addelman told her that if she chose to go to the hospital, she would “get out faster.” She says that during this discussion Joseph Addelman did not warn her about the risk of indefinite detention or that she could possibly be detained in a mental health facility for longer than the proposed jail sentence.

[20] The appellant claims that Joseph Addelman did not explain to her the legal test for an NCR finding. Further, he did not question her about how she felt when Dr. Booth was interviewing her or explain that it would be possible to challenge Dr. Booth’s evidence in court. She does not believe that she was shown Dr. Booth’s report. She says that had she reviewed it, she would have pointed out that there were “many things wrong with the report” and would have explained that she had only agreed with Dr. Booth’s suggestions in order to complete the interview as quickly as possible.

[21] The appellant says that at the time of her trial on December 10, 2008 she was “so confused” that she did not realize it was Richard Addelman who had attended court instead of Joseph Addelman. Had she been aware that her counsel of choice was not available, she claims she would have sought an adjournment.

[22] Both Joseph Addelman and Richard Addelman filed affidavits. Joseph Addelman swears that he spoke with the appellant after her arrest and explained the NCR process and its consequences. He claims the appellant then instructed him to consent to an assessment. He further states that during the appellant’s NCR assessment period he spoke with her on numerous occasions. After receiving Dr. Booth’s NCR report, he says he reviewed it with the appellant and she did not dispute Dr. Booth’s findings. He says he repeated the possible consequences of an NCR finding to the appellant at that time.

[23] According to Joseph Addelman, on both December 7 and 8, 2008, he spoke with the appellant and explained to her that she would be under the authority of the ORB if an NCR order was made. He says that during the December 8, 2008 consultation he specifically told her that the ORB might never allow her to live in the community unsupervised. He also states that he again reviewed Dr. Booth’s report with the appellant, and again she did not identify any issues. He states that the appellant instructed him not to oppose the Crown’s request for an NCR finding.

[24] Richard Addelman states in his affidavit that he attended court on December 10, 2008 with the intention of adjourning the hearing. His understanding was that the appellant’s case would ultimately proceed by way of an NCR finding on consent and that the appellant was fully apprised of how her trial would proceed. He states that he had met the appellant in the past and that she knew him.

[25] According to Richard Addelman, during the trial the appellant did not express any concerns about Dr. Booth’s report or his testimony. He says that had the appellant shown the slightest sign of confusion he would have adjourned the hearing. He concedes that he did not provide any advice to the appellant about whether to proceed with the NCR verdict.

[26] Neither Joseph Addelman nor Richard Addelman made any notes of their discussions with the appellant.

Positions of the Parties

[27] The appellant submits that the NCR finding was a miscarriage of justice and that a new trial should be ordered. She advances two grounds of appeal.

[28] First, she argues that she was provided with ineffective assistance of counsel. This argument is based on her claim that counsel failed to ensure that when she consented to the NCR finding she understood the possibility she could be indefinitely detained. She was prejudiced by this failure because she would have resisted the NCR verdict had she understood its consequences. Further, she argues there is a reasonable possibility that the outcome of the trial would have been different had she opposed the NCR verdict.

[29] Second, in the alternative, the appellant submits that she should be permitted to withdraw her consent to the NCR finding because she did not understand that she could be detained indefinitely when she gave this consent. Amicus curiae argues that this situation is analogous to the withdrawal of a guilty plea. Counsel argues that because the appellant’s consent was not informed, the verdict should be set aside and a new trial ordered.

[30] On the first ground of appeal, the Crown submits that the appellant has not met her onus to establish ineffective assistance of counsel. There is, in the Crown’s view, no evidence upon which this court can conclude that the outcome of the NCR hearing could reasonably be expected to have been different had the appellant contested the NCR verdict. Therefore, the appellant has not established prejudice. Moreover, even if prejudice could be established, this ground of appeal also fails on the performance prong of the analysis since there is no evidence that counsel for the appellant acted incompetently.

[31] With respect to the second ground of appeal, the Crown rejects the contention that consent to an NCR finding is analogous to a guilty plea. The Crown bases this distinction on the fact that the accused’s consent is not a prerequisite to an NCR finding.

Analysis

(i) Ineffective Assistance of Counsel

[32] The analysis of a claim of ineffective assistance of counsel proceeds upon a strong presumption that counsel’s assistance was competent: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27.

[33] The onus is on the appellant to rebut this presumption by establishing both that counsel was incompetent and that this incompetent assistance resulted in a miscarriage of justice: R. v. L.C.T., 2012 ONCA 116, 252 C.R.R. (2d) 223, at para. 37.

[34] Before the court will assess competence, however, the appellant must demonstrate she suffered prejudice: G.D.B., at para. 29. Where the alleged prejudice relates to the reliability of the verdict rather than procedural fairness, like in this case, the accused must demonstrate there is a reasonable possibility that the result would have been different but for the alleged incompetence: R. v. Dunbar, 2007 ONCA 840, at para. 23.

[35] If the appellant has not met her onus on the issue of prejudice, it is undesirable and unnecessary for the court to consider the performance component of the analysis: G.D.B., at para. 29.

[36] Amicus curiae did not submit that there was any expert evidence available at the time of trial or now that would suggest the appellant was not NCR at the time of the offence. Her submissions focussed on the failure of Richard Addelman to cross-examine Dr. Booth.

[37] Specifically, she noted that Dr. Booth’s report referenced three versions of the offence as recounted by the appellant. According to amicus curiae, only one of these versions of events – the second version – supported an NCR finding. In the second version the appellant admitted to attacking the complainant. She said she heard voices that led her to believe the complainant had killed her friend. As a result, she stabbed him. Amicus curiae submits that had Dr. Booth been cross-examined on his preference for the second version and had either the first or third version of events been advanced instead, the appellant may well have been acquitted of the offence or convicted without an NCR finding.

[38] Amicus curiae also argues that Dr. Booth’s report “reveals potentially fruitful grounds for cross-examination” because the report notes that the appellant denied experiencing psychiatric symptoms and was anxious to end the interviews. Further, the appellant’s delusional beliefs and auditory hallucinations were only disclosed following repeated questioning.

[39] I would not give effect to these arguments.

[40] In the first version of events proffered by the appellant in Dr. Booth’s report, she denied that she had stabbed anyone and that she knew the complainant. She also denied having any psychiatric symptoms. Given the physical evidence discovered by the police, the identification evidence provided by the complainant and the trial judge’s finding that the actus reus of the offence was established beyond a reasonable doubt, there is no reasonable possibility that the court would have accepted this bald denial by the appellant.

[41] In the third version of events, the appellant said that the complainant had raped her and that she stabbed him because she was angry with him. She initially denied that she was experiencing any auditory delusions at the time of the offence but when pressed by Dr. Booth she reluctantly agreed she had been hearing voices. The appellant went on to clarify that she “felt like” she had been raped but acknowledged that she had agreed to have sex with the complainant. She said she regretted it afterward and admitted that she stabbed him.

[42] I am not satisfied that had this third version of events been advanced at the trial there is a reasonable possibility that the outcome would have been different. The appellant’s claim that she was sexually assaulted was undermined by her subsequent clarification. Further, in this version of events, as in the version accepted by Dr. Booth, the appellant admitted that she was hearing voices at the time of the offence.

[43] I also agree with the submission of the Crown that the potential areas of cross-examination identified by amicus curiae are entirely speculative. Dr. Booth is an experienced forensic psychiatrist with a history of treating the appellant. His report is reasonable and rooted in the evidence. It is also entirely consistent with the evidence of the appellant on this appeal that when she used drugs she often believed that people were “trying to rob, beat or kill me or others around” her and that on the day of the offence she was “feeling unwell and confused.” The fact that the appellant was reluctant to admit to experiencing auditory delusions is hardly surprising and does not cast any doubt on Dr. Booth’s findings.

[44] There is nothing in the potential areas of cross-examination to support a finding that there is any reasonable possibility the result would have been different had Dr. Booth been cross-examined. This is especially so given that the appellant was not in a position to offer competing expert evidence that she was not NCR.

[45] The appellant has not met her onus of establishing prejudice. As a result, her ineffective assistance of counsel ground of appeal must fail. It is not necessary to consider the performance prong of the analysis.

(ii) Withdrawal of Consent

[46] In her second ground of appeal, the appellant argues that consent to an NCR finding is equivalent to a guilty plea, and that, consequently, the trial judge must be satisfied that the accused understands the nature of the NCR verdict.

[47] On a guilty plea, the court and/or counsel undertake a plea inquiry, the focus of which is to determine whether the plea is voluntary and informed. This court has held that the Charter does not require that judges conduct this exact same inquiry before entering a verdict of NCR: R. v. Quenneville, 2010 ONCA 223, 207 C.R.R. (2d) 360, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 409.

[48] It is unclear from the reasons in R. v. Ohenhen, 2008 ONCA 838, which is relied upon by the appellant, whether the panel was endorsing a guilty plea type test for the withdrawal of consent to an NCR finding. It appears that such a test was suggested to the court by Crown counsel. However, the court did not consider this issue in detail because it concluded there was no evidentiary basis to undermine the consent.

[49] Although not cited by counsel, there is additional authority in this court for the proposition that, in certain circumstances, a trial judge should inquire into an accused’s understanding of an NCR verdict.

[50] In R. v. P.A., 2011 ONCA 673, at para. 8, this court held that the trial judge’s failure to “explain the implications of an NCR assessment” to the accused constituted a reversible error. The reasons do not address the facts surrounding this error in further depth. I note that this was only one example in a long list of errors identified on appeal, which also included a complete lack of evidence supporting the NCR verdict and serious procedural deficiencies.

[51] In R. v. Williams, 2012 ONCA 695, the court ordered a new trial where the trial judge did not conduct a plea inquiry to determine whether the appellant’s guilty pleas were voluntary. After the finding of guilt, the trial judge granted the Crown’s application to have the appellant declared NCR. This court held that the trial judge was also required to undertake an inquiry to ensure the appellant understood the consequences of an NCR finding.

[52] In my view, the circumstances of the present case can be distinguished from P.A. and Williams. First, this is not a case that involves other significant procedural deficiencies, such as the violations of s. 606(1.1) of the Criminal Code, R.S.C. 1985, c. C-46, that were found in both P.A. and Williams.

[53] Second, there was no evidence that the appellant, like the accused in Williams and in P.A, did not understand the consequences of the NCR verdict or that her consent “was not voluntary or informed” at the time it was given. On the contrary, the appellant’s clear statement at her December 10, 2008 court appearance that she wished to return to the hospital is consistent with the conclusion that she fully understood the implications of the NCR verdict and was making a conscious decision to obtain treatment in a hospital rather than go to jail. Further, unlike in Williams, where there was uncertainty regarding the accused’s fitness at the time of his guilty plea, the appellant in this case was fit to stand trial, which indicates that she understood the nature and object of the proceedings and their possible consequences: Quenneville, at para. 19.

[54] This case is more similar to Ohenhen than to Williams and P.A. Like in Ohenhen, the record demonstrates that the appellant requested the NCR verdict and understood its nature and consequences. While it may have been preferable had she done so, in these circumstances, there was sufficient evidence for the trial judge to be satisfied that the appellant fully understood the implications of an NCR finding without conducting further inquiries.

[55] In any event, this ground of appeal is simply a recasting of the appellant’s first argument. The appellant is again arguing that she did not understand she could be detained indefinitely. In my view, this argument is properly advanced as part of an ineffective assistance of counsel claim and, for the reasons set out above, I would not give effect to this argument.

Disposition

[56] For the foregoing reasons, I would dismiss the appeal.

Released: June 11, 2015 “RAB”

“C.W. Hourigan J.A.”

“I agree R.A. Blair J.A.”

“I agree M. Tulloch J.A.”