Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Justin Williams

Before: Justice Chapin

Heard on: April 2, 2011

Reasons for Judgment released on: April 30, 2014

Counsel:

• Helen How, counsel for the Crown
• Courtney Keystone, for the defendant Justin Williams

CHAPIN J.:

Introduction

[1] This is a ruling on an application by the Crown for an assessment order to determine whether or not Mr. Williams was suffering from a mental disorder at the time he committed the offences he pleaded guilty to so as to be exempt from criminal responsibility. After the application was heard I dismissed it and advised that I would provide written reasons on a later date. These are those reasons.

[2] The Crown application was made pursuant to section 672.11(b) of the Criminal Code which reads 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);

The Facts

[3] Mr. Williams pleaded guilty on March 5, 2014 to public mischief and failing to comply with a recognizance. The synopsis of the offences was read into the record. The public mischief charge involved an incident on October 21, 2013. On that date Mr. Williams was smoking a cigarette near the gas pumps at a busy Esso station in downtown Toronto located at 902 King Street. Mr. Williams had been at that gas station on a number of occasions prior to that date panhandling and had been served with a number of trespass notices. The fail to comply charge involved a breach of the recognizance that Mr. Williams was released on after his arrest on the public mischief charge. On January 2, 2014 the Toronto Anti-Violence Intervention Strategy (TAVIS) unit noticed Mr. Williams playing with a lighter at a Toronto Housing Authority building at 251 Sherbourne Street and investigated him under the Trespass to Property Act R.S.O. 1990, c. T.21. One of the conditions of his release was that he was not to be found with any lighters, matches or any incendiary devices including cigarettes outside of his residence. He was arrested and charged.

[4] After the guilty plea was entered the matter went over to April 2, 2014 to hear the application. The Crown called one civilian witness and two police witnesses on the application. No medical evidence was called and Mr. Williams did not testify.

Witness Evidence

[5] Mr. Shripal Banker is an employee of the Esso station where the public mischief offence occurred. He was familiar with Mr. Williams as he had seen him several times at the station prior to October 21, 2013. This particular gas station was popular with many panhandlers. On October 21, 2013 Mr. Banker was working as an attendant and made observations of Mr. Williams acting in a manner that he described as "crazy". Mr. Banker testified that Mr. Williams was doing odd things such as shouting, crying, dancing and walking in-between the gas pumps while customers were trying to fill their vehicles with gasoline and dancing. Mr. Banker asked Mr. Williams to leave but he did not go.

[6] Mr. Banker was approached by a customer, approximately 20 minutes after he had first made observations of Mr. Williams' odd behaviour, who complained that Mr. Williams was smoking near a gas pump. At that point Mr. Banker called the police because Mr. Williams was putting people in danger. Mr. Banker also noted that there were "no smoking" signs "everywhere" and he had asked Mr. Williams to stop smoking on previous occasions.

[7] Officer Hagerman of the Toronto Police Service (TPS) is a Mobile Crisis Intervention Team member (MCIT). The MCIT is a collaborative partnership between hospitals and the TPS. Specially trained officers and mental health nurses are paired and respond to 9-1-1 calls involving individuals who are experiencing a mental health crisis. The mandate of the MCIT is to enhance the quality of service delivered to people experiencing a mental health crisis, to provide a secondary response to incoming calls for service, to follow-up, to refer emotionally disturbed people in their own environment, to remove the individual from serious harm to themselves or others, to make an immediate on-site clinical assessment of the person in crisis and to arrange appropriate mental health treatment through referral to an appropriate agency or apprehension under the Mental Health Act R.S.O. 1990, c. M.7.

[8] On October 20, 2013, the day before the incident, Officer Hagerman and the nurse he was working with received a call to attend to an aggressive pan handler at the Esso gas station. Once on scene he saw Mr. Williams panhandling for money at the front door of the Esso gas station. This was Officer Hagerman's first time meeting with Mr. Williams but he was aware of a trespass letter that was on file for him with respect to this Esso gas station. They had a conversation with Mr. Williams and he advised that he is schizophrenic and that he is part of the Assertive Community Treatment Team (ACT) with the Centre for Addictions and Mental Health (CAMH) and that he reports to an address on Richmond Street for his illness. The Officer cautioned Mr. Williams for trespassing and advised him not to return to the gas station. Mr. Williams left the gas station without incident.

[9] On the next day, October 21, 2013, at 7:00 p.m. the Officer received another radio call to attend to the same Esso station. The information on the radio call was that there was an emotionally disturbed male at that location that had "gone crazy, dancing and crying and smoking by the gas pumps". When Officer Hagerman pulled up to the gas station, along with the nurse, Mr. Williams immediately started yelling at him saying "Hey man, I got just as much right as all those other losers at 805". Officer Hagerman explained that the "805" is a government assisting living facility. Officer Hagerman said that Mr. Williams was swearing at them and was agitated and aggressive. This was a stark contrast from his calm and polite behaviour the previous evening.

[10] Officer Hagerman called for another police cruiser to back him up as Mr. Williams was actively resisting the Officer's attempts to arrest him. The nurse was also trying to calm Mr. Williams down during this time and Mr. Williams was subsequently arrested.

[11] Officer Leary testified that on August 6, 2013, prior to the incidents before the court, he was on patrol in the area of King Street and Strachan Avenue and noticed a male known to him as Justin Williams at the Esso station located at 902 King Street. He observed Mr. Williams smoking a cigarette while he approached a car that a woman was pumping gas into. The woman looked as if she was taken aback and Officer Leary went to speak with Mr. Williams. As Officer Leary approached Mr. Williams went into the store at the gas station and was attempting to leave the area when Officer Leary caught up to him. Officer Leary issued a provincial offence ticket to Mr. Williams for smoking in a prohibited area and he responded by swearing at the Officer. Officer Leary described Mr. Williams as being more agitated than he had been in past dealings with him.

Analysis

[12] As I indicated above the Crown must show that there are reasonable grounds to believe that an order to assess the mental condition of the accused is necessary to determine 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) of the Criminal Code.

[13] There are a number of cases that have considered these applications that are of assistance in determining what "reasonable grounds" means in this context. In R. v. John Doe, [2011] O.J. No. 52 (S.C.J.) Justice Trotter was considering an application by the Crown for an assessment to determine whether Mr. Doe was suffering from a mental disorder that would render him not criminally responsible for the offences of criminal harassment, breach of probation, assault with a weapon, assault resist arrest and weapons dangerous to the public peace. In that case the allegations were that Mr. Doe approached a 5-year-old boy at a bus stop in Toronto. Mr. Doe allegedly kissed him and the father of the boy, who had been watching from the house, was assaulted when he came to his son's aid. The police were called and Mr. Doe managed to arm himself with a stick and pitchfork and was fighting with the police before he was eventually arrested.

[14] The Crown brought an application, after the preliminary inquiry and prior to trial, to have the accused assessed with regard to the issue of "not criminally responsible". Justice Trotter referred to Justice Schneider's decision in R. v. Issac [2009] O.J. No. 5804, which pointed out that the Criminal Code is silent as to what constitutes "reasonable grounds". In Issac (supra) Justice Schneider went on to point out various cases where the courts have found that there was not a sufficient basis for ordering an assessment. In R. v. Sun, [1999] O.J. no. 2821 (S.C.J.) odd behaviour alleged in the offence was found to be an insufficient basis for an assessment order. In R. v. Muschke, [1997] B.C.J. No. 2825 (B.C.S.C.) an opinion from a psychiatrist that an accused might have a viable defence of not criminally responsible on account of mental disorder was found to be insufficient to order an assessment.

[15] Justice Trotter pointed out in para. 35 of that decision that:

On a more general level, the assessment provisions under Part XX.1 must be approached with great care, especially when the Crown attempts to invoke them. In this case, the Crown's motivation for seeking an assessment is legitimate. Nevertheless, an assessment under Part XX.1 is an entrance into a socially protective regime, one that is accompanied by significant deprivations of liberty. Accordingly, one must proceed with restraint when applying these provisions: see, more generally, Winko v. B.C. (Forensic Psychiatric Institute) (1999), 135 C.C.C. (3d) 129 (S.C.C.), at p.156, Penetanguishene Mental Health Centre v. Ontario (A.G.) (2004), 2004 SCC 20, 182 C.C.C. (3d) 193 (S.C.C.), at p. 201 and Regina v. Conway (2010), 2010 SCC 22, 75 C.R. (6th) 201 (S.C.C.), at p. 232. Indeed, an assessment is itself an invasive procedure in many ways. This is no doubt one of the reasons why Parliament intended assessment orders should be "completed with dispatch": see Ontario v. Phaneuf, 2010 ONCA 901, at para. 16.

[16] Justice Trotter ultimately dismissed the application after reviewing a number of summaries of previous encounters with the criminal justice system as well as previous reports of psychiatrists on the issue of fitness to stand trial. He concluded that the evidence fell short of the standard required as the evidence must establish more than a mere possibility that the accused was not criminally responsible for his offences.

[17] In Muschke the court considered some procedural aspects of the application hearing and noted that the evidentiary threshold for admissibility of evidence for a crown application for an NCR assessment should be much higher than it is for a bail hearing. Therefore, evidence should be in the form of affidavit or oral testimony rather than submissions from counsel. The Crown provided a letter of opinion from an examining psychiatrist, which is more than we have in this case. However, there was nothing in the letter that suggested that the accused suffered from a mental disorder of a severity which would absolve him from criminal responsibility.

[18] In my opinion the evidence at the hearing in this case does not give me reasonable grounds to make the order requested. There was no medical evidence called at the hearing. The only evidence that Mr. Williams suffered from a mental disorder came from Officer Hagerman who testified that on the evening of October 20, 2013 Mr. Williams advised him that he was schizophrenic. However, Mr. Williams also advised Officer Hagerman that he was connected to a treatment team. Therefore, even if that evidence was admissible[1], it suggests that Mr. Williams was receiving treatment as of that date.

[19] The Crown suggested that I could take notice that Mr. Williams had appeared several times in the mental health court, courtroom 102 at this courthouse, as evidence that he suffered from a mental disorder at the time of the offences before the court. I agree that I can take judicial notice of the fact that courtroom 102 is the mental health court in this building; however, that does not assist me in any way in terms of being satisfied that there are reasonable grounds to believe that Mr. Williams was suffering from a mental disorder at the time of the commission of the alleged offence so as to be exempt from criminal responsibility. A person's mental health can vary from one day to the next depending on many factors. The fact that Mr. Williams has appeared in the mental health court does not tell me anything about his mental state at the time of the commission of the offences he has pleaded guilty to.

[20] The evidence of Mr. Banker and Officer Hagerman regarding Mr. Williams' behaviour on October 21, 2013 was that he was acting in an odd manner compared to other days when they had observed him. There is no doubt in my mind that Mr. Williams was angry and that he exhibited some odd and dangerous behaviour, however, the Sun and Doe decisions make it clear that this type of behaviour does not amount to reasonable grounds to order an assessment pursuant to s. 672.11. The application is dismissed.

Released: April 30, 2014

Signed: "Justice Chapin"

[1] There was no voir dire held with respect to statements made by Mr. Williams on the evening of October 20, 2013 to Officer Hagerman.