Court Details

COURT OF APPEAL FOR ONTARIO

DATE: 20220505 DOCKET: C67691

Huscroft, Trotter and George JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Cameron Laming Appellant

Counsel: Cameron Laming, acting in person Erin Dann, appearing as amicus curiae Philippe Cowle, for the Crown

Heard: March 10, 2022 by video conference

On appeal from the verdict of not criminally responsible on account of mental disorder entered by Justice Richard T. Knott of the Ontario Court of Justice, dated June 19, 2019.

Trotter J.A. :

A. Introduction

[1] At his own request, Cameron Laming was found not criminally responsible on account of mental disorder (NCRMD) on a charge of weapons dangerous. That was almost three years ago. He remains detained in a hospital today.

[2] Mr. Laming appeals this verdict. He relies on procedural irregularities at the hearing that led to this outcome. He also moves to adduce fresh evidence – a new psychiatric report that suggests that he did not meet the criteria for a NCRMD verdict under s. 16 of the Criminal Code, R.S.C. 1985, c. C-46.

[3] I would allow the appeal on both grounds.

B. The Factual Background

[4] The appellant was 23 at the time of the incident giving rise to the charges. He is now 26. He has lived with mental health issues since he was 15 or 16. He has a long-standing history of substance abuse.

[5] The underlying facts are straightforward. On March 16, 2019, the appellant approached a man and a woman who were sitting in a parked truck in Brockville. He told them he was a government agent, and that he was hurt. He was neither.

[6] The appellant pulled a knife from his pocket. The man in the truck slammed his door closed and called the police. The appellant walked away with his hands in the air; he then ran to a nearby bus stop. Without incident, he was soon apprehended and arrested while he stood on a stationary city bus. The police found a folding knife in his pocket. He told the police that he observed a gun in the truck and had a knife ready for his own protection.

[7] The appellant was originally charged with weapons dangerous (Criminal Code, s. 88(1)); assault with a weapon (s. 267); and breach of a recognizance (s. 145). The Crown ultimately proceeded on the weapons dangerous charge alone; the other two charges were withdrawn.

C. Court Proceedings

[8] The appellant was found NCRMD on June 19, 2019, just three months after the incident. The following details the lead-up to that disposition.

(1) The Fitness Assessment

[9] On April 1, 2019, the Crown requested an assessment order under s. 672.11 of the Criminal Code. When making the request, the Crown said that the assessment was “specifically as it relates to fitness.” The presiding justice of the peace confirmed that the assessment was for fitness purposes, and not in relation to the issue of NCRMD. The appellant consented to the order. The fitness assessment was conducted at the Brockville Mental Health Centre.

[10] In a written report, dated April 14, 2019 (“the Brockville report”), Dr. Anthony Adiele opined that the appellant was fit to stand trial. The report is a wide-ranging document that goes well beyond what the author was tasked with doing. It provides a detailed history of the appellant’s circumstances, including his “career goals”, “financial status”, “substance abuse”, “anger control”, and “offending history.” This report also details considerable misconduct on the appellant’s part while he was at the hospital for the assessment.

[11] The report provides an account of the appellant’s version of the underlying incident. The appellant told Dr. Adiele that he had seen suspicious bags being loaded into the truck and wanted to ensure nothing was amiss. He said that it looked like the man in the truck wanted to shoot him so he pulled a knife, which he considered to be a legal fishing tool. He claimed that the man assaulted him by closing the truck door on his arm. The appellant told Dr. Adiele that he entered a plea of guilty so he could get back on the street. [^1]

[12] Dr. Adiele made the following diagnoses: schizophrenia; substance use disorder; and anti-social personality traits. The clinical team concluded that “Mr. Laming is currently fit to enter a plea, and fit to stand trial.” The report went on to make recommendations “[w]ere the Court be minded to impose a prison sentence in this case”.

(2) The NCRMD Assessment

[13] On April 17, 2019, after receiving the fitness assessment report, the Crown and the appellant jointly requested that a NCRMD assessment be conducted at Waypoint Centre for Mental Health. This resulted in a report dated June 13, 2019 prepared by Dr. William Komer (“the Waypoint Report”).

[14] During the NCRMD assessment, the appellant gave several accounts of the incident that each differed slightly, and differed from the version provided during the fitness assessment. In these accounts, the appellant told Dr. Komer that he approached the truck to ask for a cigarette. He later added that he also suspected that the truck was moving weapons into the neighborhood. He pulled out his knife because he thought the man in the truck was reaching for a gun. The appellant backed away, and in one of his accounts said he also apologized, when he saw a Canadian flag on the man’s shoulder.

[15] In his report, Dr. Komer recounted that, during the assessment period, “Mr. Laming expressed a strong desire not to be found NCRMD, which he thought could result in him remaining in the hospital for one to three years.” Nonetheless, the appellant exhibited delusions of grandeur, claiming he was a “Greek God”, “a Shaman”, “a higher being”, and “immortal”.

[16] Dr. Komer noted that the appellant engaged in paranoid behaviour leading up to the event. He reported having consumed crystal methamphetamine and small amounts of marijuana on the evening before, and the morning of, the incident.

[17] Dr. Komer concluded that the appellant met the criteria for a verdict of NCRMD:

In summary, Mr. Laming is a 23-year-old gentleman who has, in my opinion, a major mental illness, likely a Bipolar Disorder with psychosis. A Schizoaffective Disorder is a differential diagnosis. There is a history of substance abuse which may have contributed to his symptoms. Mr. Laming has underlying Antisocial Personality Traits. Although Mr. Laming was, at times, inconsistent in his reports and generally motivated to not be found criminally responsible on account of mental disorder which made it challenging to accurately assess his mental state, it is my opinion that, at the time of his alleged offenses, he was suffering from a Mental Disorder which rendered him incapable of knowing the wrongfulness of his actions. As a result of his mental disorder, Mr. Laming lacked rational perception and, hence, rational choice of the wrongfulness of his actions. He had a delusional belief about having a duty to protect others who needed protection from the individual in the vehicle who he believed was moving weapons in the neighbourhood. He believed that his actions were good and not against the law. Should Mr. Laming be found Not Criminally responsible on account of Mental disorder, I would recommend that he be returned to Waypoint pending Disposition of the Ontario Review Board. [Emphasis added.]

(3) The Previous NCRMD Finding

[18] As mentioned in the Waypoint report, and as discussed below, the appellant was previously found NCRMD on July 14, 2015 in relation to a charge of uttering threats, on which the Crown proceeded summarily. He spent roughly 2 ½ years confined in the hospital.

[19] The appellant successfully appealed that verdict based on fresh evidence that challenged his initial diagnosis of schizophrenia. The fresh evidence indicated that the appellant more likely suffered from bipolar disorder, and that his mental state at the time he uttered his threats was probably the result of drug-induced intoxication: see R. v. Laming, 2017 ONSC 7047. The summary conviction appeal court judge set aside the NCRMD verdict, entered a conviction, and sentenced the appellant to imprisonment for one day. As discussed below, the fresh evidence adduced in this case completes a scenario that is remarkably similar to the appellant’s earlier case.

(4) The Appellant’s Plea and the NCRMD Verdict

[20] The appellant’s case returned to court on July 19, 2019. It was initially addressed in the morning in the absence of the appellant’s counsel. During preliminary discussions, the trial judge said that he had seen, but had not yet read, the Waypoint Report. When the trial judge asked the appellant what he expected to happen that day, the appellant understood Dr. Komer was recommending that he be found NCRMD and said, “[b]ut I don’t agree with that myself … But it’s up to you what you think.”

[21] During further discussion, the trial judge expressed concern that the appellant was detained in the Brockville Jail and was not in a hospital. In light of the report, the trial judge said, “I would like to have him in the Brockville Jail as little time as possible while we sort out what is going on.” The trial judge anticipated setting a date for a hearing, either to “test” whether the appellant was NCRMD, and/or for a trial of the actus reus of the offences.

[22] The case was addressed again in the afternoon. The appellant’s usual counsel was not in court because he was at a trial in another court. But someone from the same firm appeared “quite last minute”. Counsel advised that the appellant would not be contesting a NCRMD finding and that he was motivated to get treatment “as soon as possible.” But he did not wish to return to Waypoint; he hoped to go to a hospital closer to where he and his family resided in Eastern Ontario. However, at that time, there was only a bed available at Waypoint.

[23] The trial judge asked the appellant whether he had been able to review the Waypoint report, to which he responded, “I haven’t been able to read it myself, no, sir.” The trial judge said:

Okay. The report says much like Ms. Frouhar [counsel] has indicated what you said to me. At some point, you say you want to be found not criminally responsible, but, at other points, you say you don’t want to be found not criminally responsible. That ultimately is a decision that you have to make, whether you wish to contest the finding of not criminally responsible. You have been found fit to stand trial. The report from both the Royal Ottawa in April and the report from Waypoint say that you are fit, but you are entitled to make that decision on your own. So, do you wish to have a hearing with respect to the finding of not criminally responsible or are you prepared to accept that you are?

The appellant said, “I’m prepared to accept it, sir.”

[24] The trial judge reminded the appellant of the prior occasion when he consented to being found NCRMD but had that finding overturned on appeal. The trial judge then said: “Okay. So you understand that by consenting or acknowledging that you are not criminally responsible, it would be difficult to appeal that in the future because you are consenting to it.” The appellant replied, “[y]es, sir.” I pause to note the curious nature of this exchange, especially since the appellant was successful in setting aside the previous NCRMD verdict.

[25] After some further discussion, the trial judge said, “[s]o what will happen is I will make that finding today.” He indicated that the appellant would be sent to Waypoint that day but that he, the trial judge, would recommend that he be transferred back to Eastern Ontario as soon as practicable.

[26] Before the appellant entered a plea, defence counsel advised the trial judge that the appellant was prepared to accept the facts the Crown alleged. However, because the appellant was intoxicated at the time, he did not remember the underlying event. If true, this comment was at odds with the Brockville and Waypoint reports, and with the appellant’s statement to the police. It also went to the heart of the NCRMD finding. I return to this issue below.

[27] The appellant was arraigned on the charge under s. 88(1) of the Criminal Code. When asked for his plea, the appellant said, “I plead NCR.” The trial judge properly indicated that he would enter a plea on the appellant’s behalf of “not guilty.” [^2]

[28] The Crown then read-in a synopsis of the facts of the underlying allegations. The trial judge confirmed with the appellant that, due to intoxication, he had no memory of the incident. The trial judge said, “[o]kay. So, on that basis, I will accept the facts as we have them now.”

[29] The trial judge entered the Brockville and Waypoint reports exhibits and then gave the following reasons:

Okay. In both of the reports, there is a discussion of not criminally responsible. The first report was dealing more with the fitness aspect, but there was certainly a lot of discussion about the events in question. Then specifically in the second report, Exhibit 2, addressed the issue of not criminally responsible. In our preliminary discussions, we have had Mr. Laming confirm he does not wish to contest the recommendation from Waypoint that he be found not criminally responsible for this offence.

As a result of reading the reports, I will find him not criminally responsible. [Emphasis added.]

[30] Almost three years later, the appellant remains subject to a detention order under Part XX.1 of the Criminal Code on a single count of weapons dangerous.

D. Fresh Evidence

[31] Given that I would allow the appeal based on a combination of procedural shortcomings and the fresh evidence, it is convenient to address the fresh evidence at this juncture.

[32] The appellant seeks to admit a Forensic Psychiatric Assessment prepared by Dr. Giovana de Amorim Levin. After noting the appellant’s previous diagnoses, Dr. Levin said that his “presentation appears to be more consistent with bipolar disorder than with schizophrenia or schizoaffective disorder.” She also noted that, “[c]omplicating the picture is heavy use of substances, especially crystal methamphetamine, which often causes and/or exacerbates psychotic symptoms.”

[33] During the course of this assessment, the appellant provided Dr. Levin with yet another account of the incident giving rise to the charges. The appellant said he saw a man throw a suspicious bag into a truck. He approached the man for a cigarette to check things out. The appellant pulled a knife because he thought he saw a weapon in the truck but apologized and backed away when he saw the Canadian flag on the man’s shoulder. The appellant said he was a government agent to aid his escape. Ultimately, the appellant told Dr. Levin that he understood that his actions that night were wrong from a legal and moral perspective. Dr. Levin said that the appellant denied hearing voices or experiencing any other psychotic symptoms.

[34] In forming her opinion, Dr. Levin considered the Waypoint report. She noted that, during the Waypoint assessment and while she conducted her own assessment, the appellant was motivated not to be found NCRMD. She further observed that, at the NCRMD hearing, the appellant said he had no memory of the incident; however, during his various assessments, the appellant gave differing accounts of the events. Dr. Levin said:

It is my opinion that accurately assessing Mr. Laming’s mental state at the time of the offence is challenging, given the inconsistencies presented. Basically, there are three versions, as follows: that Mr. Laming was psychotic at the time of the offence and this led to the offending behaviour, as his account to Dr. Kommer [sic] suggested, that he had no memory for any of the events during the offending behaviour, and that he knew what he was doing and it was not motivated by psychosis.

If it is accepted that Mr. Laming apologized to the victim (this has been consistent by Mr. Laming’s account to both Dr. Komer and myself, but not mentioned by the victims), this suggests that he did, in fact, know the moral wrongfulness of his actions and therefore he is not, in my opinion, eligible for the defence of NCR. Most individuals do not apologize for actions that they believe “to be good” or done with the intention to “protect the community”. An apology was not mentioned during the NCR hearing, when the facts of what was being alleged were presented in court. Mr. Laming did not take issue with the facts then. [Emphasis added.]

[35] Ultimately, Dr. Levin gave a guarded opinion. She wrote:

Given the considerations outlined above, although it is clear that Mr. Laming suffers from a serious mental illness, it is possible that his mental stated at the time of the offence was caused by an intoxicant. He has experienced alcoholic blackouts in the past and these events tend to re-occur in the clinical setting. It is also possible that his statements of a psychotic nature were related to his use of crystal methamphetamine. The use of Adderall might have exacerbated the psychotic state. Mr. Laming has a history of triggering and exacerbation of psychotic symptoms after using methamphetamine. This does not, in my opinion, qualify him for the defence of NCR. [Emphasis added.]

E. Issues on Appeal

[36] At the hearing of the appeal, Mr. Laming was self-represented. He made submissions that were largely focused on the facts relating to the weapons dangerous allegations. He expressed a clear wish that the NCRMD verdict be set aside and that he be found guilty and sentenced for his offending.

[37] Ms. Dann provided assistance as amicus curiae. She submits that there were shortcomings in the process that resulted in the NCRMD verdict. The fitness assessment report was inappropriately broad, straying far from its intended purpose and resulting in prejudicial information being revealed. This, she submits, had a flow-through effect and ended up influencing the subsequent NCRMD assessment.

[38] Ms. Dann submits that there were significant procedural irregularities at the NCRMD hearing. The trial judge should have conducted a plea inquiry to ensure that the appellant understood the implications of consenting to a NCRMD finding. Given that the appellant was equivocal as to his wishes at the hearing, a date should have been set for a proper hearing of the issue. Moreover, she contends that the trial judge provided virtually no reasons for reaching the conclusion that he did.

[39] Ms. Dann also coordinated the psychiatric assessment prepared by Dr. Levin. Ms. Dann submits that the new assessment should be received as fresh evidence because it casts doubt on the underlying diagnosis of Dr. Komer and thereby undermines the NCRMD verdict.

[40] It is the Crown’s position that there was nothing wrong with the scope of the fitness report. Mr. Cowle contends that the trial judge was not required to conduct a further inquiry of the appellant, especially in light of his prior NCRMD finding and appeal. He also submits that, although the trial judge’s reasons were brief, they were sufficient.

[41] The Crown resists the admission of the new forensic assessment. Mr. Cowle submits that the report lacks cogency because of the tentative language used by Dr. Levin. He further submits that Dr. Levin’s conclusion is flawed because she conflates a drug-induced psychosis with underlying psychotic symptoms that are exacerbated by drug use.

F. Analysis

(1) Introduction

[42] The circumstances of this case demonstrate the dramatic consequences of being found NCRMD. Part XX.I of the Criminal Code ensures ongoing supervision and regular review of the status of a person so found. Being caught up in this process sometimes results in long (if not indefinite) periods of detention in secure hospital settings that rival prisons for their deprivations of liberty. This is the case with those whose alleged crimes are grave, and those whose offending would not likely attract substantial, if any, carceral punishment upon conviction: see R. v. Lambie, 28 O.R. (3d) 360 (Ont. Gen. Div.), at pp. 379-380. [^3] This is why procedural safeguards must be jealously guarded in this context.

(2) The Fitness Assessment

[43] As described above, the Brockville report was broad in scope. This is no fault of the justice of the peace who made the order under s. 672.11 of the Criminal Code on April 1, 2019. He emphasized that it was for fitness purposes only, and not in relation to a possible NCRMD defence. The order that he signed was clear in restricting the scope to an inquiry into “whether the accused is unfit to stand trial.”

[44] Dr. Adiele undoubtedly understood what he was tasked with doing. Nonetheless, I agree with Ms. Dann’s submission that the Brockville report went well beyond the scope of the order made under s. 672.11 of the Code.

[45] The criteria for fitness is set out in s. 2 of the Criminal Code, which provides:

“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel.

The question of fitness is focused on an accused’s ability or capacity to participate in their trial. It does not address criminal responsibility. It is not meant to be a platform for sentencing recommendations.

[46] As set out above in para. 10, the Brockville report contained numerous categories of irrelevant information. Some of it was prejudicial, especially the detailed inventory of the appellant’s aggressive and abusive conduct while hospitalized.

[47] Reports ordered under s. 672.11 of the Code are limited to specific purposes. The assessment procedure is a gateway into the liberty-restricting regimen of Part XX.1 of the Criminal Code. Therefore, assessment orders and the reports that are generated by them must respect this reality. This is particularly the case with fitness to stand trial, the narrowest field of inquiry under s. 672.11.

[48] Moreover, the lives of persons subject to Part XX.1 are perpetually documented, resulting in the creation of a personal archive. Documents generated through assessments form part of this corpus and may be accessed in the future (i.e., at the Ontario Review Board, subsequent criminal proceedings, as well as proceedings under provincial mental health legislation). Thus, care must be taken in ensuring that assessment reports are contained by the purpose for which they are ordered. The assessment report in this case is already a well-traveled document. It is difficult to know what impact this report will have on the appellant’s life in the future, but it hardly seems as though it will be positive. This is regrettable because a good deal of its content was unnecessary.

[49] All of this being said, I am not persuaded by Ms. Dann’s submission that the integrity of the NCRMD finding was undermined by the scope of the fitness report. The appellant was represented by his usual counsel at the time the second assessment order was made. It was made on consent. As Mr. Cowle rightly observes, no one complained about the fitness assessment report at the time.

(3) The Plea Proceedings and the NCRMD Finding

[50] However, there were other shortcomings in the process leading up to the NCRMD finding. They may not have been apparent as they unfolded in real time, but it is now clear that the cumulative effect of these deficiencies impacted on the fairness of the proceedings. They also cast doubt on the reliability of the NCRMD verdict, especially when the fresh evidence is added to the mix.

[51] As detailed above, things happened very quickly for the appellant on the day he was found NCRMD. When he arrived in court that morning, it was expected that a date would be set for a proper hearing. Instead, when the case resumed in the afternoon, the appellant was found NCRMD in very short order.

[52] The circumstances were far from ideal. The appellant’s usual counsel was not in court that day. His associate was there on short notice. Moreover, although the appellant was aware of Dr. Komer’s recommendation in the Waypoint report, he was not provided with a copy of the report, not even after he told the trial judge that he had not seen it. Nor is it apparent from the transcript that counsel appearing on the appellant’s behalf had an opportunity to review the report. In the morning colloquy, there was even some confusion about whether the report had been sent in advance to the appellant’s usual counsel. This issue was never resolved.

[53] The appellant was equivocal that day about whether he wished to be found NCRMD. The Waypoint report indicated that the appellant did not wish to be so found. When his case was addressed that morning, the appellant said that he did not agree with Dr. Komer’s recommendation. Yet, when his case was addressed again in the afternoon, the appellant said “I’m prepared to accept it, sir.” The circumstances of this case signalled the need for caution before moving forward. Unfortunately, this did not occur.

[54] A consent verdict of NCRMD involves two parts. First, the Crown must prove beyond a reasonable doubt that the accused committed the actus reus of the offence. This may be done through the calling of evidence, or the accused person may admit the underlying facts. Second, it must be proved on a balance of probabilities that the accused meets the criteria for NCRMD under s. 16 of the Criminal Code. See Joan Barrett and Riun Shandler, Mental Disorder in Canadian Criminal Law, loose-leaf (2022-Rel. 1), (Toronto: Thomson-Reuters, 2021), at § 4:26.

[55] As to the first stage, even though the appellant entered a “not guilty” plea, the case proceeded as if it were a guilty plea. He was prepared to admit the facts, but claimed not to remember them. Essentially, it was a plea of “no contest” or nolo contendere. That is, he neither contested nor admitted guilt to the offence charged. Like NCRMD, this is not a formal plea that is enumerated in the Criminal Code, although it is a procedure that has been recognized by the courts. This court has held that, before engaging in this process, an inquiry similar to a plea comprehension inquiry in s. 606(1.1) of the Criminal Code should be conducted: see R. v. R.P., 2013 ONCA 53, 295 C.C.C. (3d) 28, leave to appeal refused, [2013] S.C.C.A. No. 133; R. v. G.(D.M.), 2011 ONCA 343, 105 O.R. (3d) 481; R. v. Lopez-Restrepo, 2018 ONCA 887, 369 C.C.C. (3d) 56, at paras. 24-27; R. v. Anderson, 2021 ONCA 333, at paras. 53-54; and R. v. Simpson-Fry, 2022 ONCA 108, at paras. 11-12. It is important for an accused person to know the consequences of not contesting the Crown’s allegations.

[56] In this case, there was good reason to conduct some type of an inquiry into the appellant’s understanding of what was about to happen. Although the appellant claimed to have no memory of the events, this was flatly contradicted by the two assessment reports in which he provided his own, albeit differing, narratives. This should have raised red flags at this stage of the proceedings. Yet no inquiry was undertaken.

[57] As to the second step mentioned above, once the actus reus was established, counsel and the trial judge anticipated that a NCRMD verdict would follow based on the Brockville report. Yet, there was no formal inquiry into the appellant’s understanding of the process, his appreciation of the consequences of what he was about to do, and whether he genuinely wished to go down this road again. The appellant resisted a recommendation of NCRMD during his assessment. He expressed his fear that he would be detained for three years were he to be found NCRMD, which was prophetic. When he appeared in court that day, his ultimate compliance would appear to have been motivated by his desire to get treatment.

[58] Unlike s. 606(1.1) of the Criminal Code, there is no statutory requirement of an inquiry before acting on an accused person’s consent to a NCRMD verdict. This court has held that the Charter does not require that an inquiry of an accused person take place before entering a consent verdict of NCRMD: R. v. Quenneville, 2010 ONCA 223, 261 O.A.C. 99, leave to appeal refused, [2010] S.C.C.A. No. 409. Nonetheless, there are other cases where circumstances call for an inquiry to be undertaken: R. v. P.A., 2011 ONCA 673, at para. 8; R. v. Williams, 2012 ONCA 695, at para. 33. Also see R. v. Trudel, 2015 ONCA 422, leave to appeal refused, [2016] S.C.C.A. No. 285, in which the court held that it would have been “preferable” had the judge conducted an inquiry; however, in that case, there was sufficient evidence for the trial judge to be satisfied that the appellant understood the implications of a NCRMD finding.

[59] Whether an inquiry should be undertaken will depend on the circumstances of each case. I agree with recommendation in Joan Barrett and Riun Shandler, Mental Disorder in Canadian Criminal Law, where the authors refer to some of the decisions of this court mentioned above, and state, at § 4:26:

As evidenced by these decisions, a verdict of NCR that is entered with the agreement of both parties may give rise to concerns regarding the voluntariness and informed nature of the plea as well as the sufficiency of the evidence in support of the verdict. Accordingly, while an inquiry under s. 606(1.1) is not mandated, given the risk of indeterminate detention inherent with an NCR verdict, a cautious approach is required. [Emphasis added.]

Greater caution was required in this case.

[60] Mr. Cowle for the Crown submits that nothing further needed to occur in this case because the appellant was already knowledgeable of the process by virtue of his previous NCRMD verdict and appeal. The trial judge was aware of this history and mentioned it before the plea proceedings commenced (see para. 24, above).

[61] These circumstances called for more scrutiny, not less. The appellant made the same improvident decision to consent to a NCRMD verdict on a previous occasion, which resulted in confinement in the hospital for 2 ½ years. The appellant told Dr. Komer he did not want to be found NCRMD this time around. He told the trial judge that he disagreed with Dr. Komer’s recommendation. Yet, he was prepared to accept Dr. Komer’s recommendation without having read the report. The trial judge did not advise the appellant he could have challenged Dr. Komer’s report through cross-examination. Nor was the appellant advised that he could have attempted to obtain a different opinion on the issue.

[62] This would hardly have been an academic exercise in light of the previous NCRMD proceedings. In her careful reasons in Laming, Gomery J. explained how the diagnosis of schizophrenia that led to the appellant’s NCRMD finding was thrown into doubt by a subsequent report that diagnosed the appellant with bipolar disorder, as well as drug use. In light of this history, Dr. Komer’s diagnosis of schizophrenia might have been explored as a precaution against making the same mistake. As discussed below, the fresh evidence sparks the same dispute about the most appropriate diagnosis.

[63] I agree with Ms. Dann’s submission that the trial judge should have provided meaningful reasons for judgment, beyond merely agreeing with the joint proposal. An articulation of the test under s. 16 of the Criminal Code, accompanied by an explanation of why the evidence placed before the court justified a NCRMD verdict, was required. In this case, the reasons did not need to be lengthy. With respect, the trial judge’s reasons – “[a]s a result of reading the reports, I will find him not criminally responsible” – were not sufficient. More was required, especially since the appellant had not even read the Waypoint report. See R. v. Suganaqueb, 2022 ONCA 193, in which the court set aside a consent dangerous offender/indeterminate sentence disposition based on similarly insufficient reasons.

[64] The proceedings leading to the appellant’s finding of NCRMD were plagued by deficiencies that cast doubt on the authenticity of his consent to such a verdict. Namely, there was a failure to sufficiently inquire into Mr. Laming’s plea of nolo contendere concerning the alleged facts, as well as his consent to an NCRMD verdict. Indeed, the reason for the appellant’s failure to dispute the facts – his intoxication at the time of the events – was relevant to the NCRMD finding. Either deficiency, on its own, would be notable; combined with the failure to provide sufficient reasons, they amount to a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code: see P.A., and R. v. Langlois, 2005 BCCA 162, 195 C.C.C. (3d) 152. I would set the NCRMD verdict aside on this basis.

(4) The Fresh Evidence

[65] I am bolstered in my conclusion by the fresh evidence that has been tendered by the appellant. It casts doubt on the opinion that the appellant was NCRMD at the time of the offences, and raises the question of whether his behaviour that evening may have been the result of his considerable ingestion of alcohol and drugs in the days preceding.

[66] In opposing the admission of the fresh evidence, the Crown submits that Dr. Levin’s report lacks cogency as a result of the tentative language she employs. I disagree. The fresh evidence need not be definitive; it need only cast doubt on the verdict that was reached. The report does that.

[67] Dr. Levin explained that, due to the appellant’s shifting explanations of his actions on the night in question, it is difficult to assess the appellant’s state of mind at the time. Nonetheless, she expressed her ultimate conclusion that it was “more likely than not” that substance abuse was “the main factor in his offending behavior, therefore not qualifying him for the NCR defence.” This language is compatible with the burden of proof for proving NCRMD in s. 16(3) of the Criminal Code – proof on a balance of probabilities.

[68] I acknowledge the Crown’s concern that the interaction of alcohol and mental illness is often difficult to navigate, and that the contribution of alcohol may not necessarily undermine an NCRMD finding. See R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, where the Supreme Court set out a “holistic” case-by-case approach for determining whether the mental condition of an intoxicated accused constitutes a mental disorder in the sense necessary to establish a finding of NCRMD: paras. 69, 77. In the present case, I am satisfied that the contribution of drug-induced intoxication could cast doubt on the verdict that was reached just as it did in the appellant’s previous case.

[69] I would admit the fresh evidence.

(5) The Appropriate Remedy

[70] Ms. Dann advises that, if the appellant is successful in setting aside the NCRMD verdict, he wishes to be found guilty of the offence under s. 88 of the Criminal Code and sentenced to time served: see R. v. Evans, 2012 ONCA 412 and R. v. Guidolin, 2011 ONCA 264. The Crown submits that, should we allow this appeal, a new trial should be ordered.

[71] When an appellate court sets aside an NCRMD verdict, it has three remedial options. It may order a new trial (s. 686(4)(b)(i)). Where the verdict appealed from is that of a court composed of a judge sitting alone, it may find the appellant guilty of the offence(s) and pass the sentence “warranted in law” (s. 686(4)(b)(ii)), or simply remit the case to the trial court to impose sentence (s. 686(4)(b)(ii)).

[72] As explained above, the main basis upon which I would allow the appeal is that the process was unfair and the NCRMD verdict ought not to stand. To the extent that the fresh evidence assists in reaching this decision, I note that the conclusion reached by Dr. Levin is a guarded one. In my view, the NCRMD issue cannot be resolved either way with any confidence on the basis of the record before this court. For this reason, I would order a new trial.

G. Disposition

[73] I would allow the appeal, set aside the NCRMD verdict, and order a new trial. I also express the court's appreciation for the valuable assistance provided by Ms. Dann as amicus curiae, and Mr. Cowle for the Crown.

Released: May 5, 2022 “G.H.” “Gary Trotter J.A.” “I agree. Grant Huscroft J.A.” “I agree. George J.A.”

Footnotes

[^1]: In fact, at the time, the appellant had not yet entered a plea. [^2]: Although NCRMD is an available verdict in a criminal trial, it is not a permitted plea, nor is it a special plea (ss. 606(1), 607). [^3]: Had the appellant been found guilty of the offence of weapons dangerous, it is inconceivable that he would have been detained for more than a small fraction of the total time he has spent under the jurisdiction of the Ontario Review Board.