Court File and Parties

Court File No.: Toronto 11-40018008 Date: 2012-07-05 Ontario Court of Justice

Between: Her Majesty the Queen — and — Daniel Pancer

Before: Justice Charles H. Vaillancourt

Heard on: June 25, 2012

Reasons for Judgment released on: July 5, 2012

Counsel:

• Peter Vandenbergh, for the Crown
• Russell Silverstein and Breese Davies, for the accused Daniel Pancer

VAILLANCOURT J.:

APPLICATION FOR AN ADJOURNMENT OF AN NCR HEARING

[1] On October 21, 2011, various allegations against Mr. Pancer were set to June 25 and 26, 2012 for the purpose of guilty pleas and a contested Not Criminally Responsible Hearing. On June 25, 2012, the Assistant Crown Attorney requested an adjournment of the hearing because Dr. McDonald was not in attendance to give evidence as to the issue of criminal responsibility. I am not prepared to grant the adjournment.

CIRCUMSTANCES SURROUNDING THE INDEX OFFENCES

[2] On March 23, 2011 at approximately 2:15 a.m., Mr. Pancer approached two individuals as they were walking along. Mr. Pancer asked them for a cigarette. When he was denied a cigarette, Mr. Pancer became angry and asked the two complainants whether they wanted to die. Mr. Pancer then demanded ten dollars. The two complainants informed him that they did not have any money. At this point in time, Mr. Pancer pulled out a knife and began waving it around. He stated that, "You're lucky I'm being merciful." He then proceeded to walk away.

[3] Shortly thereafter the aforementioned events transpired, Mr. Pancer arrived at his parents' home and entered a motor vehicle that was located there. He was in the process of setting the vehicle in motion when his mother, Cheryl Pancer, exited the family home and opened the door of the vehicle. The accused struck his mother with a bat and bit her on the arm before he drove off to his own address.

[4] Subsequently, Mr. Pancer was arrested and initially appeared in bail court later on March 23, 2011.

DEVELOPMENTS SUBSEQUENT TO MR. PANCER'S ARREST

BAIL

[5] On June 15, 2011, Mr. Pancer was released on a recognizance of bail that included many terms geared to address his mental health, anger management and substance abuse issues.

ATTENDANCE WITH DR. MCDONALD

[6] One of Mr. Pancer's bail requirements was that he had to attend with Dr. McDonald for the purposes of an assessment regarding his criminal responsibility for the March 23, 2011 offences. Mr. Pancer complied with this condition and attended the Centre for Addiction and Mental Health (CAMH) on June 27, 2011 and thereafter as required.

[7] Dr. A. McDonald, B.A., M.A., PhD., M.D., F.R.C.P. (C), a staff psychiatrist at CAMH prepared a report dated August 15, 2011.

[8] At pages 11 and 12, Dr. McDonald makes the following observations:

Criminal Responsibility:

Mr. Pancer has multiple severe problems of long duration. In addition to his bipolar affective disorder, which is unequivocal and has been repeatedly diagnosed upon admissions to hospital in states of crises, he has an aggravating problem of multiple substance abuse, especially heavy alcohol consumption. His often defective judgment would be even more inadequate under the influence. Curiously, Mr. Pancer suggested that he does not feel he qualifies for a non-criminal responsibility finding, despite his many difficulties. On the balance of probabilities, I have little doubt that he does so qualify, either on the grounds of being able to appreciate the nature and consequences of his actions when acutely psychotic, or ala Oommen, that is, unable to exercise the judgment of a normal person. When substantially unwell, he would clearly lack the capacity.

Prognosis:

Mr. Pancer's prognosis is guarded at this point. I have noticeable discomfort with his being in the community as he is and feel that he most certainly should be the object of a Detention Order in hospital. He needs close monitoring with respect to many issues, including his compliance with prescribed medication and absolute abstinence from drugs of abuse. Without this, his prognosis is weak. However, he is an intelligent individual with probably much greater ability to develop insight than has come to pass so far. It likely will require a substantial period of time to titrate his medication regime for optimal effect, but if this can be accomplished, his prospects for the future will greatly improve.

COMPLIANCE AND PROGRESS MADE BY MR. PANCER WITH RESPECT TO OTHER BAIL CONDITIONS

[9] Dr. Marie-Claude Guimond, M.D., F.R.C.P. (C.) noted in her report dated June 14, 2012 that:

I have been following Mr. Pancer on a regular basis since his most recent release from jail in June 2011. He has been showing up for his regular appointments and has been compliant with his medication regimen. He has been essentially stable and at this point does not present with any active symptomatology. At this point, I see no clinical reason for Mr. Pancer to be hospitalized.

Daniel is doing well with the support of his family and is currently psychiatrically stable.

[10] Dr. Guimond is a psychiatrist associated with the Adult Mental Health (AMHOP) program at North York General Hospital.

[11] It was one of Mr. Pancer's terms of release to be under Dr. Guimond's care.

[12] Jay Pasternack, Clinical Director of New Life Counselling/Recovery Place Inc. noted in his letter dated May 11, 2012, that:

Assessment results suggested Mr. Pancer would be a candidate for a structured outpatient program designed and geared to someone of Mr. Pancer's psychiatric issues. Mr. Pancer has been accepted to and will be starting the Humber River Regional Hospital, Bridgeway Treatment program on May 14th. This is a hospital based, day treatment Centre, with a focus on substance abuse and mental health. Mr. Pancer has been attending weekly counselling sessions with the writer … In addition, Mr. Pancer also attends a weekly anger management program held at Regesh Family and Child Services with Mr. Edwin Schild. He also continues to be seen by his psychiatrist, Dr. Guimond.

It is clear to the writer that Mr. Pancer seems to have made a full recovery from his mental health issues through medication and ongoing therapies. Mr. Pancer is devoted to developing alternative methods for dealing with stressors that appear to have contributed to his mental health deterioration and as a result past criminal charges.

[13] Sally Mintz Levy, clinician at Humber River Regional Hospital, outlined the Bridgeway Chemical Dependency Assessment and Treatment Program and a certificate of achievement accompanied her letter dated May 14, 2012.

[14] Edwin Schild, B.A., M.Sc., NAMA Certified Anger Management Specialist II, Therapist and Executive Director of Regesh Family and Child Services provided a letter dated May 14, 2012 that noted:

Since his intake session, Daniel started a 10 week program and, furthermore, has continued seeing me since that time. Daniel has always come to his sessions without resistance and has always participated in the sessions. He has been able to discuss his many moods and conflicts, when they are happening.

Over the period of time that Daniel has been seeing me, his moods, abilities, level of functioning have fluctuated. Nevertheless, he has established a good therapeutic relationship and seems to show trust in this relationship. Even when upset with his parents in sessions they have attended, I am able to calm him down in order to hear what they might be saying. On one occasion Daniel was so upset he chose to leave the room but returned in a much calmer state within 5 to 10 minutes.

Earlier in the sessions, Daniel would verbalize his anger towards his mother but this has certainly subsided. In fact, when his mother brings him to sessions now, they show affection and calmness.

Living with his parents certainly improved, though tensions can still be high at times. Nevertheless, Daniel and his parents have shown significant improvements over the last eight months.

Daniel and his parents have verbalized the good working relationship Daniel has developed in therapy. Daniel needs someone who will validate him, encourage him and try to make some sense out of what can seem extremely confusing, unjust and conflicted.

While attending the Humber Hospital addiction program, I will continue seeing Daniel and help him adjust and take whatever positives he can from the experience.

[15] On the adjournment application, Cheryl Pancer, Daniel's mother and victim on one of the charges to which Daniel has pled guilty was called to give evidence.

[16] Mrs. Pancer stated that her son is a completely different person now and that the turnabout over the last twelve months has been amazing.

[17] She advised the court that her son also attends AA meetings as part of his rehabilitation.

[18] Mrs. Pancer confirmed that Daniel has been compliant with the many terms of his recognizance.

[19] Finally, Mrs. Pancer expressed how upsetting it was for both her and her son to learn that the Crown was seeking a last minute adjournment of the scheduled NCR hearing.

PRIOR CRIMINAL INVOLVEMENT OF MR. PANCER WITH THE CRIMINAL JUSTICE SYSTEM

[20] Mr. Pancer received a conditional discharge for an offence of assault with a weapon dating back to August 26, 2009. The circumstances of this offence are similar to the actions of Mr. Pancer for the allegations currently before the courts. Mr. Pancer swung a knife at a bicyclist.

[21] The finding of guilt for this matter was made on January 12, 2011, a very short time before the current allegations. Obviously, Mr. Pancer would have been on probation at the time.

Timeline of Events:

• March 23, 2011 – Mr. Pancer was arrested and charged with a number of criminal offences.
• June 15, 2011 – Mr. Pancer was granted bail.
• June 27, 2011 – Mr. Pancer was seen by Dr. McDonald for the purposes of exploring the issue of his criminal responsibility.
• August 15, 2011 – Dr. McDonald's report regarding criminal responsibility was completed.
• October 21, 2011 – Counsel set June 25 and 26 for the NCR hearing.
• Late May or early June – Defence counsel requested further notes from Dr. McDonald in preparation for the NCR hearing.
• June 5, 2012 – Defence counsel requested the aforementioned notes from the Crown.
• June 15, 2012 – Defence counsel again requested the aforementioned notes from the Crown.

The Crown was unsuccessful in obtaining the additional disclosure for the NCR hearing. The Crown became aware that Dr. McDonald was scheduled to be in Kingston on the scheduled hearing date. The Crown decided that he would not subpoena Dr. McDonald. The Crown realized that he would be required to seek an adjournment of the scheduled hearing and notified the Defence of his intentions.

• June 25, 2012 – The Crown brought an application for an adjournment of the NCR hearing to the court's attention without a formal application as contemplated by the Rules of the Ontario Court of Justice in Criminal Proceedings.

PURPOSE OF THE JUNE 25 AND 26 COURT DATES

[22] Mr. Vandenbergh submitted that the final particulars with respect to the pleas that were to be entered had not been finalized until today's date and that this somehow enhanced his adjournment request.

[23] I reject this submission.

[24] It may very well be that certain window dressing issues surrounding the pleas of guilt may have not been finalized BUT there was never any issue that pleas of guilty were going to be entered on June 25, 2012 and an NCR hearing was going to be conducted.

[25] The endorsement on the back of the information makes it abundantly clear that on October 21, 2011 the dates of June 25 and 26 were specifically set for an NCR hearing.

THE LAW

[26] When adjudicating the appropriateness of an application for adjournment, R. v. Darville, [1956] S.C.J. No. 82 sets out the basic framework for courts to follow at paragraph 13.

There was no disagreement before us as to what conditions must ordinarily be established by affidavit in order to entitle a party to an adjournment on the ground of the absence of witnesses, these being as follows:

(a) that the absent witnesses are material witnesses in the case;

(b) that the party applying has been guilty of no laches or neglect in omitting to endeavour to procure the attendance of these witnesses;

(c) that there is a reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial.

[27] Defence counsel makes the case that the Crown in the matter before the court fails to meet condition (b) as set out in Darville.

[28] How can it be that Dr. McDonald is in Kingston, Ontario on June 25th, 2012 when the Crown has known that his attendance would be required here for this NCR hearing since October 21, 2011?

[29] The factual basis upon which to answer this question is almost non-existent.

[30] Since there is no formal application for the adjournment requested, there is no affidavit evidence to explain Dr. McDonald's non-attendance. Likewise, there was no viva voce evidence called on behalf of the Crown to explain the non-attendance. We only have the Crown's assertion that Dr. McDonald is in Kingston. I am prepared to accept that Dr. McDonald is in Kingston.

[31] Where does that leave us?

[32] Questions abound.

[33] When the dates for this NCR hearing were selected in October of 2011, were there any inquiries made as to Dr. McDonald's availability for June 25 and 26, 2012?

[34] Once the dates were selected, what efforts were made by the Crown to let Dr. McDonald know when he would be required?

[35] At the eleventh hour, when the Crown became aware of Dr. McDonald's scheduled commitments in Kingston, Ontario, were there any inquiries made as to the urgency of these commitments?

[36] I'm afraid the deafening silence to the aforementioned questions is answer in itself.

[37] I conclude that absolutely nothing was done to secure Dr. McDonald's attendance.

[38] In fact, when the situation became clear to Mr. Vandenbergh that his key, if not only witness, on this hearing was not going to be in attendance, he made the conscious decision NOT to subpoena him.

[39] I find that there has been a complete failure on the part of the Crown to secure the attendance of Dr. McDonald.

[40] The circumstances of this case brings to mind a passage written by Justice F.P. Kiteley in R. v. Smith [2011] O.J. No. 2712 wherein she notes at paragraph 32, "I agree with the defence submission that a trial is not an RSVP date."

[41] When the Crown wishes to have a hearing to determine criminal responsibility, they are obligated to secure the attendance of their witnesses to establish their position.

[42] It seems that in this case Dr. McDonald was never even put on the guest list.

[43] Defence counsel did not take issue with conditions (a) and (c) as outlined in Darville (supra).

[44] R. v. Darville indicates that the conditions set out must ordinarily be established by the applicant on a motion for adjournment. (My emphasis) Obviously, the Crown has not met condition (b) but is that determinative as to whether an adjournment is granted or denied?

[45] Mr. Vandenbergh suggests that there is an overriding consideration that the court must also take into account when it is determining whether the requested adjournment should be granted or not. The interest to be protected is that Mr. Pancer should not be convicted of a criminal offence when he is not criminally responsible for his actions.

[46] Do the interests of justice require that an adjournment be granted in the circumstances of this case?

[47] When addressing this issue, I would suggest that a good starting point is Section 16 of the Criminal Code of Canada.

Section 16 reads as follows:

(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proven on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

[48] Mr. Pancer and his counsel have consistently maintained that at the time of the offences Mr. Pancer was not suffering from any mental disorder that would exempt him from criminal responsibility.

[49] Mr. Vandenbergh had concerns as to whether Mr. Pancer was NCR at the time of the index offences and therefore the Crown has the onus of establishing that position. With that in mind, the two June dates were set aside for the NCR hearing.

[50] In R. v. Swain, [1991] 1 S.C.R. 933, the Supreme Court of Canada outlined the objectives that arise in the context of NCR situations at paragraphs 56 and 57.

In my view, the objective of the common law rule which allows the Crown, in some cases, to raise evidence of insanity over and above the accused's wishes is twofold. One of the objectives was identified by Martin J.A. in Simpson, supra at p. 362:

… to avoid the conviction of an accused who may not be responsible on account of insanity, but who refuses to adduce cogent evidence that he was insane.

The common law rule is aimed not only at avoiding the unfair treatment of the accused but also at maintaining the integrity of the criminal justice system itself. The accused is not the only person who has an interest in the outcome of the trial; society itself has an interest in ensuring that the system does not incorrectly label people as criminals.

The second objective was aptly characterized by the appellant as the protection of the public from presently dangerous persons requiring hospitalization. This objective arises from the fact that the Crown's option to simply discontinue the prosecution of an accused, whom he suspects was insane at the time of the offence, does not address the concern that such a person may well be presently dangerous and may therefore bring him or herself into contact with the criminal justice system once again.

[51] At paragraph 87 of Swain, the Court also observes that:

I cannot see how a rule which allows the Crown to move an individual from the category of those who will surely be convicted and sentenced to those who may be acquitted, albeit on the grounds of insanity, can be said to impose a burden or a disadvantage on that individual. In my view, to say otherwise is tantamount to saying that an accused has the right to be convicted and punished even though he or she does not have the mental capacity for criminal intent. This cannot be the case. As I have stated above, and I think it is useful to reiterate here, it is a principle of fundamental justice that the criminal justice system not convict a person who is insane at the time of the offence. That this is so dispels any suggestion that an accused somehow has a right to be wrongly convicted.

THE UNANSWERED QUESTION

[52] If there were or are serious NCR issues at play, as Crown counsel now contends as he wraps himself in the rhetoric and principles as outlined in Swain, why was nothing done to advance this issue on the scheduled hearing date?

[53] Nothing was done to secure Dr. McDonald's attendance for this hearing that was scheduled some eight months ago.

CONCLUSION

[54] The determination of whether an accused is not criminally responsible is a serious matter. Once the Crown requests a court to make such a finding, it is expected that every effort will be made to ensure that evidence is presented when the hearing has been scheduled.

[55] One must be mindful that the presumption is that Mr. Pancer is criminally responsible for his actions and that if the Crown wishes to show otherwise, he has the onus of so doing.

[56] In the case at bar, the Crown has failed to make any effort to have Dr. McDonald present in order to give evidence to support his original conclusion of NCR.

[57] I find that the Crown's laissez faire attitude in not having his witness here is unacceptable.

[58] Obviously the Crown has failed to meet condition (b) in Darville and it only remains to be determined whether in all of the circumstances there is an overriding public interest to allow the adjournment as requested by the Crown.

[59] This is not the time to delve into the merits of the NCR issue.

[60] Although it would have been interesting to hear whether Mr. Pancer's significant progress since his release from custody and the material filed by other health care professionals would have altered Dr. McDonald's initial opinion, this is not the time or place to explore these points.

[61] Although I have no evidence before me upon which to deal with the issue of NCR, I find some merit with Mr. Silverstein's observation that the matter of a NCR finding would not be a slam dunk for the Crown based on the tantalizing snippets of information that have arisen in this adjournment application.

[62] I conclude that the second objective as set out in Swain has been satisfactorily addressed. Mr. Pancer has made excellent progress from a medical point of view since his release from custody and currently does not pose a risk to the public at large.

[63] Frankly, I am concerned that to allow the Crown's request for an adjournment to obtain a new date for a NCR hearing would put the progress made to date by Mr. Pancer at risk.

[64] I agree that it would not be appropriate for a person who is NCR to be convicted of a criminal offence. However, the law presumes that a person is competent for his actions unless it is proven otherwise. Mr. Pancer claims criminal responsibility for his conduct and wishes to be sentenced.

[65] The Crown has had more than a reasonable opportunity to advance any concerns as to the issue whether Mr. Pancer was NCR at the time of the offences and did nothing to advance his position on the selected hearing dates.

[66] The circumstances of this case do not warrant the granting of an adjournment and I propose to address the issue of sentence based on the pleas of guilt tendered by the accused.

Released: July 5, 2012

Signed: "Justice Charles H. Vaillancourt"