Court File and Parties

Court File No.: 13-501, 13-901, 13-906, 13-17107, 13-20134

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Matthew Vassel

Before: Justice Lloyd Dean

Dates Heard: September 6th and 25th, and October 9th, 2013

Counsel:

• S. Cote, for the Crown
• C. Sweet, for the Accused

Ruling on Crown Application for an Assessment Order to Determine Whether the Accused is NCR

Introduction

[1] Mr. Vassel is 32 years old and single. He is financially supported through the Ontario Disability Support Program.

[2] Mr. Vassel has pled guilty to three uttering threat charges and two breaches of probation charges. The offences were committed on different dates covering a time period from March 5th to May 6th, 2013. The offences all surround threats that the accused made towards a person by the name of John Macri. Mr. Macri is a local lawyer with a general practice who apparently handled the accused father's estate. The accused believes Mr. Macri has cheated him out of the inheritance he feels he was due. At the time of the offences the accused was on probation for having been convicted on July 18, 2012, of two offences involving the uttering of death threats towards John Macri. He received the equivalent of a 7 month jail sentence and Probation for 3 years.

The Facts of the Offences

[3] On March 5th the accused called his probation office and left a voicemail stating, "You know what, I'm letting you know right here, right here, alright, no threats, this is a fucking promise alright, I'm letting you know to let the police hear this right now, Matthew Daniel Vassel, March 11, 1981, is going to murder John Macri, no fucking lie, right here, alright. You let whoever in your fucking government know or hear for good, you call them, you make the police hear, you hear me?"

[4] On March 28th the accused called his probation officer and advised that he was not going to report as directed. He was charged with breaching his probation order by failing to report and has pled guilty to that charge.

[5] On April 18th the accused called Mr. Macri's office and left a voicemail stating, "I'm going to murder you, I'm going to murder your family".

[6] The accused was arrested on April 21st and has been in custody ever since.

[7] On May 4th, while in custody, the accused called his probation officer and left a voicemail stating, "When I get out I will murder John Macri, I am not playing around". He also advised that when he gets out he is not coming back to probation and the probation officer should notify police and let them know.

[8] Again while in custody, on May 6th, the accused contacted the probation office and left another voicemail stating "Listen asshole, John Macri is going to be murdered alright, now you get the police and let them know". The message also contained profanity and racial slurs.

[9] On September 6th the Crown made an application pursuant to s. 672.12(3) of the Criminal Code for an order to have the accused assessed to determine whether, at the time of the offences, he was suffering from a mental disorder such that he was not criminally responsible by virtue of s. 16 of the Criminal Code. The Crown provided an assessment prepared by Dr. William J. Komer dated May 13, 2013 in support of their position.

[10] Defence counsel advised they would be opposing the Crown's application and asked for an opportunity to see if she could arrange for another doctor to prepare an assessment of the accused. The matter was adjourned to September 25th for that purpose.

[11] On September 25th, defence counsel advised that she could not arrange for a doctor to assess the accused. Both Counsel were prepared to give submissions on the matter and did so. Case law was provided by both counsel. The matter was not completed that day and was adjourned to October 9th for further submissions.

[12] On October 9th the court heard further submissions and received more case law. The matter was adjourned to this date for my ruling.

The Relevant Statutory Provisions

[13] Section 672.11 sets out the circumstances under which an assessment can be ordered as follows:

672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine

(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);

[14] Section 672.12 sets out when and the circumstances under which such an application can be made. In particular, it sets out the circumstances under which an application may be made by a prosecutor:

(3) where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if

(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.

[Emphasis added]

Position of the Parties

[15] The Crown's position, based on the entirety of the record, was that an assessment should be ordered to determine the s. 16 issue. The Crown of course referred to Dr. Komer's report and pointed out the areas of the report which support the Crown's position that an assessment should be ordered.

[16] Counsel for the accused has argued that the evidence presented by the Crown does not meet the statutory criteria of "reasonable grounds to doubt" required for an assessment order. Defence counsel submits the evidence the Crown is relying on suggest the "possibility" that the accused was not criminally responsible when he committed the offences before the court but no more than that. She argues s. 672.12(3)(b) requires more.

[17] Both counsel provided helpful case law to the court in support of their positions. They included, R. v. Muschke, [1997] 121 C.C.C. (3rd) (BCSJ); R. v. Sun, [1991] O.J. No. 2821 (SCJ); R. v. Simanek, [2000] O.J. No. 5594 (SCJ); R. v. John Doe, [2011] O.J. No. 52 (SCJ); R. v. Dodangoda, [2000] O.J. No. 486 (OCJ); R. v. Issac, [2009] O.J. No. 5804 (OCJ); and R. v. Rackham, [2012] B.C.J. No. 2811 (Prov. Ct).

Analysis

[18] In Regina v. Issac, at paragraph 3, Schneider J. noted the Criminal Code is silent as to what is meant by "reasonable grounds" and that "no particular evidence is necessary" as long as the basis for the belief is "clear and plainly appears on the record of proceedings." The British Columbia Supreme Court in the case of Regina v. Muschke (1997), 121 C.C.C. (3d) 51, at p. 61, took a stricter approach, insisting on sworn evidence to establish reasonable grounds. Pitfield J. in Muschke relied on Nelles v. Ontario, [1989] 2 S.C.R. 170 to define reasonable and probable grounds for belief in the context of an allegation of an offence. The court stated that the reasonable and probable grounds for belief test contains both a subjective and objective element. There must be both actual belief on the part of the prosecutor and the belief must be reasonable in the circumstances. Pitfield J. said the statements in Nelles were relevant in the context of s. 672.11. The same "phrase" should apply, mutatis mutandis to the phrase "reasonable grounds to doubt", as that phrase is used in s. 672.12(3)(b) of the Criminal Code.

[19] In deciding whether there was evidence from which to conclude there were reasonable grounds to doubt the mental capacity of the accused that an assessment was necessary, Pitfield J. considered whether the evidence pointed to an inability to understand the nature and consequences of one's actions or that the actions were wrong as contemplated by s. 16 of the Code. He said the disorders attributed to the accused in that case may well have been in need of treatment. However, standing alone, there was no evidence the disorders pointed to an inability to understand the nature and consequences of the accused's actions or that the actions were wrong.

[20] Mr. Vassel has been assessed several times dating back to January 8, 2009. He has not always cooperated with his assessors. He has also been involuntary admitted under the Mental Health Act. The details and findings of those assessments and admissions are found in Dr. Komer's report. In the past he has been diagnosed most often with schizophrenia paranoid type. Mr. Vassel has been convicted and sentenced seventeen times, dating back to July 14, 2000. There are several related convictions, as well as convictions for assault (4 of them) and assaulting a peace officer. As here, when Mr. Vassel has been assessed regarding his fitness to stand trial he has most often been found fit to stand trial at the first assessment. In the past, physicians have opined that a defence of NCR would be available to Mr. Vassel with respect to his charges. I am not aware of any prior NCR hearing taking place in relation to any of his prior charges.

[21] Dr. Komer's report indicates that Mr. Vassel's medical history makes it clear that Mr. Vassel suffers from schizophrenia, has been aggressive, unpredictable and bizarre in the context of his mental disorder. He has also had a positive response to medication.

[22] In relation to the charges before the court at this time some of the relevant details of Dr. Komer's report are as follows.

[23] Dr. Komer reports that the Mr. Vassel expressed his view that he does not have a mental illness. He denied any violent or homicidal thoughts or use of weapons. Mr. Vassel said that starting 5 or 6 years ago he began hearing voices. The voices tell him he is doing a good job and he cannot let Mr. Macri get away with having robbed him. He indicated that he currently hears voices. He stated he has received hidden messages from the television and radio. He expressed a belief that he has been watched, spied upon and followed by the police. He did not want to answer whether he has any special powers. He expressed the belief that Mr. Macri stole his father's money, money that his father was going to give him. He estimated the amount is $160,000. Mr. Vassel expressed a belief that the courts and others know that Mr. Macri stole his money and are not doing anything about it. He believes they are all in cahoots.

[24] It is Dr. Komer's opinion that the accused is fit to stand trial. Dr. Komer believes there may be an issue of Mr. Vassel's criminal responsibility with regards to a mental disorder at the time of the offences and recommends that Mr. Vassel be assessed regarding such. He believes Mr. Vassel is in need of active and ongoing psychiatric treatment, rehabilitation, support and monitoring, which would best be initiated at the time of the report from within a secure psychiatric hospital setting. Dr. Komer believes Mr. Vassel was at the time of the report a very poor candidate to be released into the community at that time given his state of mental health and very high risk for having further conflicts with the law, which may involve serious physical aggression towards others.

[25] It is as a result of Dr. Komer's statement, "there may be an issue of Mr. Vassel's criminal responsibility", that defence counsel argues that the report indicates it is a possibility that Mr. Vassel is NCR, and a possibility is not enough as indicated in the case law provided.

[26] I agree that the case law indicates that a possibility is not enough; that reasonable grounds to doubt the accused is criminally responsible for the alleged offence, on account of mental disorder requires more. I am also mindful of Trotter J.'s comments in John Doe, supra, that the assessment provisions of the Code must be approached with great care, especially when the Crown seeks to invoke them.

Conclusion

[27] Given the agreed upon facts that were read in after the pleas of guilt were taken and the relevant portions of Dr. Komer's report indicated above, I am satisfied on the whole of the evidence placed before me on this application that there are reasonable grounds to doubt that Mr. Vassel was criminally responsible for the alleged offences. The material before the court points to an inability to understand the nature and consequences of one's actions or that the actions were wrong as contemplated by s. 16 of the Code. Accordingly, I order that an assessment of his mental condition be carried out to determine whether at the time of the alleged offences he was suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) of the Code.

Dated at Windsor, ON, October 28, 2013

Justice Lloyd Dean