Court of Appeal for Ontario

Date: 20240711 Docket: M54989 (C58723)

Before: Lauwers, Trotter and Paciocco JJ.A.

Between:

His Majesty the King Responding Party

and

William Russell Stephens Moving Party

Counsel: William Russell Stephens, acting in person Joe Wilkinson, appearing as duty counsel Nicole Rivers, for the responding party

Heard: July 8, 2024 by video conference

On appeal from the judgment of Justice Harrison S. Arrell of the Superior Court of Justice, dated January 24, 2014, dismissing an appeal from the convictions entered on July 20, 2009, by Justice Brian Stead of the Ontario Court of Justice.

Appeal Book Endorsement

[1] In 2009, Mr. Stephens was convicted summarily after pleading guilty to mischief and failing to comply with a probation order (the “subject offences”). He was subsequently found not criminally responsible on account of mental disorder (“NCR”) of unrelated 2011 offences. Mr. Stephens argues that he was mentally ill when he committed the 2009 offences and that his convictions should be set aside in the interests of justice. Mr. Stephens’ efforts to achieve an NCR verdict for the 2009 offences have been longstanding. On January 24, 2014, he brought a summary conviction appeal of his 2009 convictions, which was dismissed. He initiated a motion for leave to appeal the Summary Conviction Appeal decision to this court, and an assessment was ordered and conducted by Dr. Brian Daly. That assessment did not support an NCR defence for the 2009 incidents and the appeal was not pursued. The “appeal from the order of the summary conviction appeal judge” was dismissed as abandoned by formal order of this court, on December 7, 2016. In 2021, Mr. Stephens brought a motion in this court to reopen this appeal by challenging Dr. Daly’s qualifications and report. The motion was dismissed, and on May 12, 2022, so too was an application for leave to appeal that decision to the Supreme Court of Canada.

[2] Mr. Stephens now brings a new motion to reopen the appeal of the Summary Conviction Appeal decision, relying on a March 3, 2024 psychiatric assessment from Dr. Giovana de Amorim Levin that expresses the opinion that based on interviews she has conducted with Mr. Stephens and his mother, he was mentally ill in 2009, suffering from psychosis, which made him “incapable to apply rational logic to establish the moral wrongfulness from his actions, therefore making him eligible for the defence of NCR.”

[3] Even assuming that we have jurisdiction to make an order to re-open an appeal in the face of a final decision, and even assuming that Dr. Levin’s report is admissible “fresh evidence”, it is not in the interests of justice to re-open Mr. Stephens’ motion for leave to appeal the Summary Conviction Appeal decision. The mental disorder defence is a reverse onus defence requiring the accused to establish that the defence applies, on the balance of probabilities. Dr. Levin’s report lacks the cogency required to meet that standard or to give rise to doubt about the correctness of the Summary Conviction Appeal decision. Whether Mr. Levin was NCR in 2009 is a legal question. Dr. Levin’s opinion that he was NCR cannot determine that issue. What matters is the underlying basis for her opinion. Although she provides support for her conclusion that Mr. Stephens was mentally ill in 2009, the presence of mental illness is not enough to ground an NCR defence. For the defence to succeed, the mental disorder would have to prevent Mr. Stephens from appreciating the nature and quality of his act or appreciating that those acts were wrong. Dr. Levin’s report offers no foundation for making such findings. Indeed, Mr. Stephen’s own factual account of the events is inconsistent with an NCR defence. Instead of attributing his conduct to a disordered mental state, he described the broken window, which occurred during an emotional domestic dispute, as “accidental”. We are not persuaded that it is in the interests of justice to revisit, yet again, the question of Mr. Stephens’ criminal responsibility for the events of 2009, an issue that has repeatedly been addressed. The motion is dismissed.