Her Majesty the Queen v. J.F.

[Indexed as: R. v. F. (J.)]

Ontario Reports Court of Appeal for Ontario K.N. Feldman, Lauwers and Nordheimer JJ.A. May 30, 2019

146 O.R. (3d) 734 | 2019 ONCA 432

Case Summary

Criminal law — Plea of guilty — Withdrawal of guilty plea on appeal — Accused pleading guilty to arson and other charges and being found not criminally responsible on account of mental disorder — Guilty plea struck on appeal and new trial ordered — Trial defence counsel essentially taking it upon himself to pursue NCR verdict and leaving accused without effective assistance of counsel — Real doubt existing as to whether accused and his parents understood impact of NCR finding on accused's liberty interest — Accused potentially having defence to arson charge as he insisted that fire was accidental — Ineffective assistance of counsel depriving accused of procedurally fair process.

The accused pleaded guilty to arson, uttering a threat, breach of recognizance and possession of a weapon for a dangerous purpose. He was found not criminally responsible on account of mental disorder, was ordered detained after a hearing before the Ontario Review Board and had been subject to a detention order ever since. He appealed the NCR verdict, asserting that his guilty pleas were invalid and that he received ineffective assistance of counsel.

Held, the appeal should be allowed.

Trial defence counsel essentially took on the role of a parent or social worker and pursued an NCR finding on his own initiative, leaving the accused without the effective assistance of counsel. It was not clear on the evidence whether trial counsel got instructions from the accused or his parents to request an assessment under s. 34 of the Youth Criminal Justice Act, S.C. 2002, c. 1, which paved the way to the NCR verdict. There was real doubt as to whether the accused or his parents fully understood the impact of an NCR verdict on the accused's liberty interest. The accused potentially had a defence to the arson charge, as he claimed that the fire was accidental. He claimed that defence counsel told him that he was guilty and that his parents could not afford to pay for a trial. There was a real doubt as to whether the guilty pleas were informed, unequivocal and voluntary. The accused was denied a procedurally fair process by the ineffective assistance of trial counsel.

Cases Referred To

• R. v. Archer, [2005] O.J. No. 4348, 203 O.A.C. 56, 202 C.C.C. (3d) 60, 34 C.R. (6th) 271, 67 W.C.B. (2d) 790 (C.A.)
• R. v. Cubillan (2018), 143 O.R. (3d) 376, [2018] O.J. No. 5224, 2018 ONCA 811, 150 W.C.B. (2d) 96, 49 C.R. (7th) 339, 367 C.C.C. (3d) 477
• R. v. Joanisse, [1995] O.J. No. 2883, 85 O.A.C. 186, 102 C.C.C. (3d) 35, 44 C.R. (4th) 364, 28 W.C.B. (2d) 471 (C.A.) [Leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 347]

Statutes Referred To

• Criminal Code, R.S.C. 1985, c. C-46, s. 672.11
• Mental Health Act, R.S.O. 1990, c. M.7
• Youth Criminal Justice Act, S.C. 2002, c. 1, s. 34

Proceeding

APPEAL by the accused from the verdict of not criminally responsible on account of mental disorder entered by Nicklas J. of the Ontario Court of Justice dated June 25, 2010.

Dean Embry, for appellant.

Jennifer Epstein, for respondent.

The judgment of the court was delivered by

LAUWERS J.A.:

Decision

[1] On June 7, 2010, the appellant, J.F., was found guilty of three counts of uttering a threat, one count of arson, one count of failing to comply with a recognizance and one count of possession of a weapon for a dangerous purpose. On June 25, 2010, he was found not criminally responsible on account of a mental disorder ("NCR"). J.F. was later ordered detained after a hearing before the Ontario Review Board and since has remained subject to a detention order.

[2] J.F. asserts that his guilty pleas were invalid and appeals against the findings of guilt on the basis that he received ineffective assistance of counsel, which resulted in a miscarriage of justice. J.F. seeks to have the guilty pleas struck and a new trial ordered. He also seeks to have the NCR verdict set aside on the basis that it was unreasonable.

[3] J.F. makes several arguments in the context of the fact, acknowledged by trial counsel, that J.F. did not want his mental health to be put in issue and so instructed counsel.

[4] First, the process that led to J.F.'s current disposition was not just and fair because of the unusual role played by trial counsel, a well experienced and competent criminal lawyer. Rather than defend the charges vigorously, trial counsel appears to have stepped out of his role as defence counsel. Trial counsel effectively took on the role of a parent or social worker, leaving J.F. defenceless and without the effective assistance of counsel.

[5] Second, neither J.F. nor his parents understood the implications of an NCR finding, that he could be in custody well beyond the sentences that would have been imposed for convictions on the charges.

[6] Third, trial counsel persuaded J.F. to plead guilty in part in order to access the NCR disposition, even though there might have been a plausible defence on the arson charge, which was the most serious charge he faced.

[7] Fourth, Dr. William J. Komer, the psychiatrist who authored the report leading to the NCR finding, based the opinion on J.F.'s Asperger's Disorder, which is not a reasonable basis for an NCR finding.

[8] There is merit in the first three arguments, which I address in turn below. Accordingly, I would strike the guilty pleas and direct a new trial, and set aside the NCR verdict.

A. Trial Counsel Played an Unusual Role

[9] The test for ineffective assistance of counsel can be briefly stated. The client must establish on a balance of probabilities that trial counsel's conduct fell below the standard of reasonable professional assistance and that the ineffective representation resulted in a miscarriage of justice: R. v. Cubillan (2018), 2018 ONCA 811, 143 O.R. (3d) 376, [2018] O.J. No. 5224, at para. 8 O.R., citing R. v. Joanisse, [1995] O.J. No. 2883, 102 C.C.C. (3d) 35 (C.A.), at pp. 59-61 C.C.C., paras. 63-81, leave to appeal refused [1996] S.C.C.A. No. 347. When the ineffective representation "undermine[s] the appearance of the fairness of the trial, or the reliability of the verdict", then a miscarriage of justice is made out: R. v. Archer, [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (C.A.), at para. 120.

[10] Trial counsel testified that he developed concerns about J.F.'s mental health at the outset of his retainer based on what he called "the bizarre behaviour" underlying the charges. On November 25, 2009, trial counsel requested the court to order that J.F. be psychologically and psychiatrically assessed under s. 34 of the Youth Criminal Justice Act, S.C. 2002, c. 1. He explained that he did so "[t]o provide a basis for [J.F.'s] mother and father to move forward . . . given his cognitive issues, given his mental health issues, given all the issues that underline the behaviour that brought him before the court".

[11] The first psychiatric report was by Dr. Jose Mejia, dated April 2010. Dr. Mejia's diagnosis was that J.F. suffers from pervasive developmental disorder not otherwise specified, a learning disability, and adolescent antisocial behaviours. Dr. Mejia noted that J.F. was "[c]ognitively speaking . . . impressed to be of average to superior intelligence with no obvious deficits", and that "criminal responsibility may be in question given [J.F.'s] cognitive difficulties. That being established and despite his superficial capacity to distinguish right from wrong, his appreciation of the consequences of his actions could certainly be severely compromised."

[12] Trial counsel agreed: "It was so apparent to anybody who talked to [J.F.], anybody who met with his parents, anybody who knew his background that he was suffering from significant mental illness."

[13] Trial counsel requested the report to be provided through the court under s. 34 of the Youth Criminal Justice Act, he said, in order to spare J.F.'s parents the costs of the assessments, but the effect of doing so was to make the content of the reports immediately available to the Crown.

[14] Based on Dr. Mejia's report the Crown sought an assessment under s. 672.11 of the Criminal Code, R.S.C. 1985, c. C-46, to determine whether J.F. was criminally responsible for the offences charged. J.F. complains that trial counsel did not oppose the application and made no submissions. Trial counsel explained: "I did not oppose the Crown's application as I did not have the grounds to do so."

[15] J.F. was sent for an NCR assessment to Dr. Komer who provided two reports to the court. The details of the reports will be discussed below. In his first report Dr. Komer declined to carry out an NCR assessment because J.F. was denying "any specific intent or of having committed his alleged offences".

[16] After J.F. pleaded guilty on June 7, 2010, the Crown sought an assessment for NCR purposes. On that occasion trial counsel said: "[N]otwithstanding the -- [J.F.'s] instructions, Your Honour, I think my friend is -- that the grounds upon which she requests an assessment is appropriate." Trial counsel then asked the court to tell J.F. that he had to be co-operative with the assessment order.

[17] Following J.F.'s guilty plea, Dr. Komer's second report led to the NCR finding. At the NCR hearing on June 25, 2010, the trial judge had the three reports, the one from Dr. Mejia and the two from Dr. Komer, and reached the NCR verdict. Trial counsel did not oppose the NCR verdict. He stated on the record: "I take no issue with the finding otherwise being requested of you by learned counsel." Trial counsel did not seek to rebut the court-ordered assessment. He testified:

[J.F.] didn't have sufficient funds and that was reviewed with him. He knew his mother and father did not have the monies to otherwise do that.

[18] J.F.'s factum fairly states the evidence:

The Appellant testified that he never gave Trial Counsel instructions to not oppose the finding. Trial Counsel agreed and testified that he did not seek some of the necessary instructions from the Appellant because he did not believe that they would be understood. Trial Counsel stated that he could not have directly asked the Appellant if he took issue with the finding of NCR, as the Appellant would not have known the difference. Trial Counsel ultimately could not recall if he asked the Appellant if he took issue with NCR.

[19] There is real doubt as to whether J.F. or his parents fully understood the course that trial counsel embarked upon, apparently without informed instructions.

B. Neither J.F. nor his Parents Fully Understood the Implications of an NCR Finding

[20] There is considerable discrepancy in the evidence of J.F. and trial counsel about what J.F. was told, when he was told, and what he knew about the consequences of an NCR finding to which J.F. asserted that he was "utterly opposed". Although trial counsel asserted that he provided full information to J.F. and to his parents, he acknowledged receiving a telephone call from J.F.'s mother asking: "What does being found not criminally responsible mean for [J.F.]?" She followed up with a letter to trial counsel on June 18, 2010 in which she said: "[J.F.] does not understand the full impact of an NCR label." She added: "Neither do we as parents for that matter."

[21] Trial counsel gave evidence about what he discussed with J.F. regarding the impact of an NCR finding from contemporaneous notes from June 23, 2010 when he met J.F. in the holding cells, and from June 25, 2010, the day of the NCR hearing. He also met with J.F. after the hearing. Trial counsel said: "I've told [J.F.] that he's not going to be hospitalized forever." Trial counsel testified he had said something "like, some six months to a year". J.F., for his part, testified that after the hearing, trial counsel told him that he would not be in the hospital for a long time: "[H]e said I would not be in the hospital indefinitely. He said that to me specifically."

[22] There is real doubt as to whether J.F. or his parents fully understood the impact of an NCR verdict on J.F.'s liberty interest.

C. The Guilty Pleas Were Problematic

[23] The context for the guilty pleas was set by Dr. Komer's first report, dated May 17, 2010. Although he opined that J.F. was fit to stand trial, Dr. Komer declined to carry out an NCR assessment. He explained why he could make no NCR finding then:

His denial of any specific intent or of having committed his alleged offences, has limited my ability to express an opinion about his criminal responsibility with regards to mental disorder at the time of his alleged offences. I would recommend that he be assessed regarding his criminal responsibility with regards to mental disorder should it be determined that [J.F.] committed his alleged offences. He does, however, have difficulty understanding the consequences of his behaviour as a result of his Asperger's Disorder.

The implication was that unless J.F. pleaded guilty, no NCR finding could be made.

[24] Arson was the most serious charge, and Dr. Komer's first report suggested J.F.'s lack of intent as a possible defence:

[J.F.] said that he was bored while on the bus and while playing with a lighter and looking in another direction out a window, papers accidentally set on fire. He said that he attempted to put the fire out and tried to tell the bus driver what happened. He minimized his actions on the bus and stated "I don't see anything illegal about what happened . . . a tiny little one minute mistake".

[25] J.F. argues that trial counsel could have pursued the issue of whether the fire on the bus was accidental. The complaint is that trial counsel did not pick up on this important detail and provide a full defence. J.F. insisted that he did not think he was guilty of arson. Trial counsel told him that he was guilty, and that his parents could not afford to pay for a trial.

[26] On June 7, 2010, J.F. followed trial counsel's instructions to "agree with the process", and pleaded guilty to each of the charges as read. The Crown then read in the facts at the end of which trial counsel said: "He believes those facts are pretty close to what occurred. Is that correct, [J.F.]?" To which J.F. responded: "Yes". The trial judge made the finding of guilt and again referred J.F. to Dr. Komer for an NCR assessment.

[27] There is real doubt as to whether J.F.'s plea was informed, unequivocal and voluntary.

D. Dr. Komer's NCR Conclusion Was Not Unreasonable

[28] In his second report, dated June 22, 2010, Dr. Komer opined that J.F. was not criminally responsible for the charged offences. The Crown argues that in light of the evidence given by Dr. Mejia and Dr. Komer, a finding that J.F. was NCR would have been made in any event.

[29] Dr. Komer's second report relies on his first report, which recounted J.F.'s version of events surrounding the alleged offences: "He denied having made any threats through the Internet and said that charges related to this are false." Dr. Komer then related J.F.'s statements about the fire on the bus set out above. He went on:

[J.F.] said that he pointed a knife at himself because he thought the police officer was going to kill him and he preferred to kill himself. When asked if he felt remorseful for his actions he stated "I don't believe I did anything wrong. You have to do something wrong to feel sorry" and "I look at it as everyone makes mistakes . . . I don't think there's anything to feel sorry about. Everybody could make that mistake."

[30] Dr. Komer gave a summary opinion in the first report, finding:

[J.F. suffers from] a pervasive developmental disorder, Asperger's Disorder. He has impaired social interaction, displayed repetitive and stereotyped behaviours and had significant impairment in functioning. [J.F.'s] problems have been severe and pervasive. [He] also has a conduct disorder. He has previously been identified as having borderline intellectual functioning, an attention deficit hyperactivity disorder and a bipolar disorder.

[31] In his second report Dr. Komer added more of J.F.'s comments on the charges, some of which Crown counsel brought to the court's attention, including the following:

[J.F.] stated, "I don't think words of any kind are threatening . . . only actions is the important thing."

[J.F.] discussed circumstances surrounding his index offences. His responses were consistent with the reports from his parents about what he told them. He acknowledged having made threats through the Internet to the victims and said that he did nothing wrong, should not have been charged, is not remorseful, feels victimized by being charged and should be thanked for his actions. Regarding the threats to Ms. Crane, [J.F.] stated it is "an abomination to try to limit what's in people's mind . . . I think it was good in a sense . . . I'm speaking what comes to my mind . . . what I did was an honour." He said that Ms. Crane would not have felt threatened at all and should have accepted what was communicated to her and not called the police. With regards to the threats to Mr. Bell about Ms. Bell, [J.F.] stated, "I was enjoying myself speaking my mind what came to my head. I always feel good inside releasing my thoughts." He said that if he didn't send the threat, he would have obsessed over and over. [J.F.] stated, "I would be shocked if someone told me that people actually did get concerned about people speaking their mind." With regards to the threat to Mr. Audet, he stated, "I thought it was a comedian joke when someone told me the police were coming to arrest me." [J.F.] said that Mr. Audet did not feel threatened at all and should have seen him as "an honourable person."

These facts are undoubtedly telling about J.F.'s mental state.

[32] Dr. Komer's NCR opinion is set out in the last paragraph of his second letter:

In my opinion, [J.F.] was not criminally responsible with regards to mental disorder at the time of his index offences. [J.F.] lacked a knowledge of the wrongfulness of his actions as a result of his Asperger's Disorder.

[33] J.F. relies on this sentence to argue that the diagnosis of Asperger's Disorder was the sole or main basis of the NCR finding, which, based on several authorities, was unreasonable.

[34] Perhaps this interpretation of Dr. Komer's opinion unfairly decontextualizes the opinion sentence, as can be seen when the summary paragraph is read as a whole:

In summary, [J.F.] is a 17-year-old youth who has, in my opinion, a pervasive developmental disorder, Asperger's Disorder. He has impaired social interaction, displayed repetitive and stereotyped behaviours and had significant impairment in functioning. [J.F.'s] problems have been severe and pervasive. [J.F.] also has a conduct disorder. He has previously been identified as having borderline intellectual functioning, an attention deficit hyperactivity disorder and a bipolar disorder. [J.F.] is, in my opinion, fit to stand trial. In my opinion, he was not criminally responsible with regards to mental disorder at the time of his index offences. [J.F.] lacked a knowledge of the wrongfulness of his actions as a result of his Asperger's Disorder. He is an individual who would likely best be managed and function in a structured, supportive, supervised, predictable and reliable environment. He has difficulty with inconsistencies, change, social cuing, anger management and relationships. [J.F.] is, in my opinion, a significant threat to the safety of the public.

[35] However, I need not determine whether the NCR verdict was based on a flawed psychiatric report and is unreasonable, in light of the disposition.

E. Disposition

[36] I would not impugn the good faith of trial counsel. Nonetheless, it is plain that he stepped outside of his role as defence counsel, and did not provide effective assistance. This not only effectively left J.F. defenceless in the face of the prosecution, but smoothed the way to an NCR verdict that J.F. did not want pursued. Trial counsel's request for an assessment under s. 34 of the Youth Criminal Justice Act paved the way to an NCR verdict. It is not clear on the evidence whether trial counsel got instructions from J.F. or his parents to request the s. 34 report, but it is clear that J.F. and his parents did not fully understand the implications of the inexorable process that trial counsel deliberately initiated. Trial counsel's personal commitment to a mental health outcome, which he sincerely thought was in J.F.'s long-term best interests, blinded him to the defence possibilities and led him to encourage J.F. to plead guilty, even in the face of a possible defence to the most serious charge. Consequently, the entire process was so deeply flawed that neither the guilty pleas nor the NCR verdict can stand.

[37] J.F. is a very troubled young man. Crown counsel advised the court in oral submission that the hospital where J.F. is detained considers him to be dangerous to public safety and will certify him on a Form 1 under the Mental Health Act, R.S.O. 1990, c. M.7 if he is successful in this appeal.

[38] Even so, J.F. was entitled to a procedurally fair process with respect to the charges he was facing, but that was denied to him by the ineffective assistance of trial counsel.

[39] For the reasons set out above, I would strike the guilty pleas and direct a new trial, and I would set aside the NCR verdict.

Result

Appeal allowed.

End of Document