Court Information
Court: Ontario Court of Justice Court File No.: Central East Region Date: February 16, 2017
Before: Justice F. Javed
Heard: February 7, 14, 2017
Reasons for Judgment Released: February 16, 2017
Parties
Her Majesty the Queen
— AND —
Isabella Sammut
Counsel
H. Cook — Counsel for the Crown
A. Nathan — Amicus Curiae
The defendant was self-represented
Judgment
F. JAVED J.:
A. Introduction
[1] The defendant Isabella Sammut is charged with two counts of mischief and two counts of failing to comply with her probation order which she entered into on October 11, 2016.
[2] The allegations involve Ms. Sammut throwing eggs on her neighbours' window, making excessive noise and having communication with her in contravention of a court order prohibiting such conduct.
[3] She is self-represented and in custody, having been detained after a bail hearing. She has been in custody since the date of her arrest, January 13, 2017.
[4] On a prior date, Amicus Curiae ("Amicus") was appointed to assist her given that it was clear that she had mental health issues and the Crown had given notice that should the court make findings of guilt on any count, the Crown would embark on proceedings to determine if Ms. Sammut was exempt from criminal responsibility on account of mental disorder pursuant to s. 16(1) of the Criminal Code (the NCR issue).
[5] At the request of Ms. Sammut, I expanded the role of Amicus to go beyond simply cross-examining the complainant(s). I permitted her to take on the functional role of defence counsel with its attendant roles and responsibilities including guarding solicitor-client communications. I made it clear that I would still treat the matter as a self-represented litigation allowing Ms. Sammut to make submissions, call evidence and conduct her defence.
[6] At trial, the Crown called her neighbors, Annette and Winston Mauge. Ms. Sammut did not testify in her defence nor call any defence evidence. Amicus didn't call any evidence either.
[7] After hearing submissions, I provided brief oral reasons concluding that the two offences of mischief had not been proven beyond a reasonable doubt but the two breaches of court orders were proven. I reserved the right to expand on my reasons and am doing so now.
[8] The Crown then embarked on the second phase of the bifurcated proceedings, calling three police officers in an effort to satisfy the court that there are reasonable grounds to doubt that Ms. Sammut is criminally responsible on account of mental disorder and an assessment under s. 672.12(3) should be ordered.
[9] This application was vigorously resisted by Amicus as well as Ms. Sammut. I was given several cases in support of both positions.
[10] These are my reasons on both issues.
B. Analysis
(i) The Background
[11] Ms. Sammut and the Mauges are neighbors in Pickering. Ms. Sammut's residence backs on to the Mauge property with Ms. Sammut's front door opening up to the Mauge backyard. The parties share a fence separating their properties. The distance between the Mauge backyard and Ms. Sammut's kitchen is approximately 25 to 30 feet.
[12] On consent of all parties, it was agreed that on October 11, 2016, Ms. Sammut was placed on a probation order with terms not to have direct or indirect contact with members of the Mauge family. As part of the narrative, Ms. Mauge explained that she was annoyed by the defendant who would stand in her kitchen and hold a big star projected to the sun. She used profane language around her and members of her family. She was deterred from using her deck as the defendant was engaged in "nonsense".
(ii) The Mischief Allegations
[13] On December 12, 2016, Ms. Mauge heard Ms. Sammut banging on her pots while she was cleaning her kitchen. She heard a bang and saw that there were broken eggs on her window. Nobody was using her deck at the time as it was winter and the furniture had been removed. The door remained functional and she was able to clean up the mess on her own. She opened her screen door and asked her what she was doing. Ms. Sammut lobbed an egg at her direction which landed in the snow on her deck. She shouted "diplomatic immunity" and called her "a fucking cunt" and went back inside. Ms. Mauge, annoyed by the behavior, went back to cleaning her fridge.
[14] Ms. Cook submitted that this activity constituted a mischief as particularized in count 4 in the information by "damaging" her property. Ms. Nathan disagreed. Ms. Sammut made no submissions on the issue.
[15] On the whole of the evidence, I am not satisfied that the egg throwing resulted in "wilful damage" of property. In R. v. Jeffers, 2012 ONCA 1, the Ontario Court of Appeal held that "to criminalize mischief, the damage must be more than negligible, more than a minor inconvenience". To prove "damage", the Crown must show that the usefulness or value of the property has been impaired, at least temporarily (at para. 19). In my view, there is no evidence that the egg yolk on the windows impaired the value of the property. It was no doubt inconvenient and even unnecessary but the standard to criminalize mischief is high and not met here. Ms. Mauge's evidence supports this conclusion.
[16] On January 12, 2017, Ms. Mauge woke up at 2:30 am and heard some noise and swearing. She assumed that it was Ms. Sammut, who was banging on something. The noise lasted 2 minutes. She used the bathroom and went back to bed. She didn't bother calling the police about this issue at that time.
[17] Count 1 on the information is particularized as mischief by interfering with the lawful enjoyment of the property. Ms. Nathan submits that the evidence doesn't reach the threshold of "enjoyment" as set out in R. v. Maddeaux. I agree.
[18] Ms. Mauge was interrupted in her sleep at 2:30 am for a brief period of time. There is some evidence that Ms. Sammut has cats and makes noise to draw attention to her cats. I'm not satisfied that the impugned conduct "interfered" with the quiet enjoyment of her property. It was brief, much like any member of the public might engage in activity, such as construction which may act as a nuisance. It was certainly not pleasant behavior and the time makes it more unpleasant but the conduct is so benign that it can't and shouldn't attract the blunt instrument of the criminal law.
[19] I find that there's insufficient evidence for a conviction on this offence.
(iii) The Breach of Probation Order Allegations
[20] Count 2 relates to an allegation of failing to keep the peace and be of good behavior. I've already summarized the impugned conduct on December 12, 2016 above. Ms. Nathan submits that in both cases, involving alleged breaches of court orders, the Crown hasn't satisfied the mens rea requirement which requires wilful conduct.
[21] The fault requirement for breaching a court order was discussed by Justice Trotter sitting as a summary conviction appeal court in R. v. Withworth, 2013 ONSC 7413, in the context of a case dealing with failing to comply with a court order. At paragraph 12 he wrote:
12 The law is clear that s. 145(3) of the Criminal Code creates a full mens rea offence. As Laskin J.A. held in R. v. Legere (1995), at p. 565:
... the offence of failing to comply with a condition of a recognizance is a true criminal offence requiring proof of mens rea and that carelessness or failure to take the precautions that a reasonable person would take will not support a conviction ...
… [t]his fault requirement is not restricted to the proof of an intention to fail to comply with a recognizance; wilful blindness and recklessness will also suffice: see R. v. Custance (2005), 2005 MBCA 23, at p. 229, R. v. Legere, supra, at p. 566 and R. v. Smith, supra, at para. 4.
[22] There is no dispute that Ms. Sammut entered into a probation order on October 11, 2016. The order was in good standing on the two dates in question: December 12, 2016 and January 12, 2017. There is no evidence to the contrary.
[23] In R. v. Griffin, [2013] OJ No. 6287, Justice Selkirk of this court discussed what it means when an accused fails to "keep the peace" and "be of good behavior". After reviewing the authorities on point, he adopted the reasoning in R. v. Grey, [1993] O.J. No. 251 and R. v. Gosai, [2002] O.J. No. 359, Durno J. sitting as a summary conviction appeal court. At paragraphs 50-51 he wrote:
50 Under the heading, To Keep the Peace, the Court writes at paragraph 20,
"A breach of the peace occurs where there is an actual assault, public alarm, or an excitement caused. A mere annoyance or insult to an individual, stopping short of actual personal violence, is not a breach of the peace. An essential ingredient is something in the nature of a riot, tumult or actual violence. The core notion of a breach of the peace is a violent disruption or disturbance of the public tranquility, peace or order: Frey v. Fedoruk (1950). It has also been described as "unacceptable conduct that unduly disrupts and violates public peace and good order," without any emphasis on any particular crime: R. v. Stone (1985)."
51 Under the heading, To Be of Good Behaviour, the Court writes at paragraphs 27 and 28,
"There are conflicting authorities as to whether the term can be breached without offending any law or regulation, or must involve conduct otherwise prohibited. Those favouring the need to offend some law or regulation include R. v. R.(D.); R. v. Grey (1993); and R. v. Barker, [1967] Y.J. No. 1. The following cases found there was no need to limit the offence to non-compliance with legal obligations: M.(S.A.M.) [1994] S.J. No. 537 (Sask. Prov. Ct.); R. v. Johnson (1993)."
[24] I agree with the above recitation of the applicable principles. In applying them here, it's clear that the actions of Ms. Sammut on January 12, 2017 by banging and making loud noises at 2:30 am amounted to "unacceptable conduct that unduly disrupts and violates public peace and good order". As noted in Stone, supra, it need not amount to a criminal offence such as mischief or even causing a disturbance.
[25] Further, I accept the evidence of Ms. Mauge that Ms. Sammut called her a "fucking cunt" and threw an egg at her direction. The profanity hurled at her is evidence of the act of direct contact in contravention of the court order.
[26] I find that the Crown has proven a prima facie case of violating both court orders. There's also some evidence that Ms. Sammut on both dates was at the very least reckless in her actions by her conduct. I would not go as far as saying she was willfully blind as there's little evidence of this.
[27] Regardless, the actus reus of both offences has been proven and there's no evidence of a "reasonable excuse" as contemplated by the Court of Appeal in R. v. Moser, which might excuse her conduct. Again, no evidence was led on this issue and none arises from that adduced by the Crown.
(iv) The Request by the Crown for an Assessment under s. 672.12(3) of the Criminal Code
[28] Ms. Cook submits that there's evidence of Ms. Sammut throwing eggs at her neighbor and swearing at her, which is sufficient to order the assessment to determine the NCR issue.
[29] Ms. Nathan vigorously opposes the request. Ms. Sammut joins this submission.
(a) The Principles
[30] There is no doubt that Ms. Sammut has mental health issues but that is not the question in dispute. The issue is whether there's grounds to doubt that Ms. Sammut is criminally responsible of intentionally breaching the two court orders on account of mental disorder.
[31] Any request for an assessment requires that there be reasonable grounds to believe the assessment is "necessary" for one of the enumerated purposes. Evidence that the accused may be mentally unstable is in of itself without any connection to the issues of fitness or criminal responsibility, insufficient: R. v. John Doe, 2011 ONSC 92.
[32] The authorities make it clear that it is not sufficient to demonstrate that there is a "possibility" that Ms. Sammut was not criminally responsible when she committed the two offences. No particular evidence is necessary as long as the basis for the belief is "clear and plainly appears on the record of proceedings": John Doe, supra; R. v. Isaac, 2009 ONCJ 662.
[33] In R. v. Capano, 2014 ONCA 559, the Ontario Court of Appeal made it clear that the decision must be approached with care given the person impacted by it may face the loss of liberty for an indefinite period of time as the assessment could lead to a verdict of NCR. Moreover, the issue is more acute when the Crown seeks an assessment as opposed to an accused putting her mental health in issue which is not the case here.
[34] To establish the necessary reasonable grounds, the Crown must adduce evidence and establish an evidentiary link between Ms. Sammut's mental disorder and the issue of fitness or criminal responsibility. Statements and submissions will not suffice absent the consent of the accused, again, which isn't the case here: R. v. Torangeau, [2004] O.J. No. 4886 at para. 22.
[35] While no particular evidence is required, a court must be satisfied a "credibly based probability" exists to believe an assessment is necessary for one of the enumerated purposes: R. v. Goudreau, 2015 ONSC 6758. This can come in the form of medical evidence, evidence of police officers or even firsthand observations of the court. Whether there are sufficient grounds will depend on the circumstances and evidence in each particular case. An important point as referenced in the text Mental Disorder in Canadian Criminal Law by Joan Barrett and Justice Ruin Sandler (Thomson Carswell) is that the scope and nature of the evidence adduced in support of a request for an assessment order is likely to depend on whether the assessment is on consent or contested.
(b) Application of the Principles
[36] In this case, the request is contested by both Amicus and Ms. Sammut. Ms. Cook relies on the evidence adduced at trial, Ms. Sammut's behavior in the proceedings and the "unusual" circumstances of the offence. There is no medical evidence including any fitness reports that the court was asked to consider. I was advised that a previous fitness assessment was done and Ms. Sammut was declared fit. This did not change when the trial commenced, nor when it continued. Ms. Sammut remains fit, even after an inquiry of the issue by the court.
[37] Ms. Cook called evidence of three police officers from the Durham Regional Police Service (DRPS) who dealt with Ms. Sammut before, during and after the alleged offences in December 2016 and January 2017.
[38] Cst. Jenna Clements testified that on December 12, 2016 she responded to the original police call and entered Ms. Mauge's kitchen. She saw egg yolk on her window. While there, she noticed that Ms. Sammut was in her residence and appeared to be pointing at Ms. Mauge's home and had a book, cell phone and/or flowers on her person. She kept saying "diplomatic immunity" and appeared agitated and angry. She parked her cruiser near Ms. Mauge's home and walked to her home. She had a conversation with Ms. Sammut in her doorway. The home appeared messy. She noted that there was Styrofoam and a broomstick tied to her vehicle.
[39] She tried to speak with her and was told to "go eat an egg salad". She called herself and her partner, Cst. Richard, "womanizers" and "feminists". Cst. Clements found her behavior confusing so she left. There's a dispute about what exactly Ms. Sammut said. This need not be resolved as the more relevant and uncontested statement is "go eat an egg salad".
[40] She came back in the afternoon and tried to speak with her again. This time, Ms. Sammut remained upstairs and spoke to her through a window. She began arguing and stating that she was going to call her lawyer to get them off her property. Clearly, this is a lucid response to a perceived intrusion of one's privacy, even if it was baseless.
[41] While the behavior of Ms. Sammut may be "odd", that is not the test to order an assessment which is contested. What is more compelling is the evidence of Cst. Clements that on the date in question she didn't think she had grounds to apprehend her under the Mental Health Act (Ontario), which of course is based on a civil standard. Section 17 of the MHA (Ontario) permits the police to apprehend individuals who are acting in a dangerous and disorderly manner. The standard is based on "reasonable and probable grounds to believe". If the police officer is of the opinion that the person is suffering from a mental disorder, the officer can take the person into custody to be examined by a physician.
[42] Here, Cst. Clements agreed she had no basis to apprehend her, which is some evidence of her belief of Ms. Sammut's state of mind on the date in question. It directly speaks against the necessity of an assessment. The other two police officers, Sgt. Andrews and Cst. Zebra didn't have any contact with her during this time.
[43] Accordingly, the requisite standard is not met for the December 2016 incident and an assessment is not necessary.
[44] With respect to the January 12, 2017 incident, Cst. Clements and Sgt. Andrews didn't have any contact with her to assist with the determination of this issue but Cst. Zebra did. He is trained as a mental health recognition officer which vests him with special knowledge and training to identify and assist individuals who might be in mental health crisis. He testified that on January 12, 2017 he went to check on her and was invited inside her home. It was in disarray. Ms. Sammut was incoherent and spoke very fast. Overall, she was pleasant. There is no evidence that he formed any grounds to apprehend her or found her to be suffering from a mental disorder – at that time.
[45] Cst. Zebra added that she had been apprehended in the past but no details were adduced. It's unclear if she has a psychiatrist, was prescribed medication or was suffering from active delusions at the material times.
[46] Overall, I am of the view that the Crown's request for an assessment stands on a thin record and cannot be supported by the evidence adduced. To summarize:
[47] First, there is no dispute about Ms. Sammut's fitness. I was advised by Ms. Nathan that she was fit when she was appointed Amicus and in my inquiries in the courtroom, I have no reason to doubt her fitness. In my communication with her, she is clearly lucid despite having unconventional views.
[48] Second, there is no evidence before me that Ms. Sammut is in fact mentally ill, in that she has been diagnosed with a mental illness. I heard evidence that she has been in psychiatric facilities on two occasions and was previously apprehended but that's all. It may be apparent from her "odd" behavior that she suffers from a mental illness but no medical evidence was led, including any reports or the like. While not required per se, there's a gap on this issue.
[49] Third, I had the benefit of observing Ms. Sammut's demeanor in the courtroom over two full days of trial. On the first day, Ms. Sammut appeared somewhat upset but this manifested after she realized that the matter, set for a full day would not be completed in time, resulting in her returning to the institution. Again, she has been in custody for many months and I do not fault her for sharing this sentiment. It's a natural response. More importantly, on the next day of the trial, she was polite, cooperative and apologized for her upset. She remained calm even when others testified about her possibly being mentally ill.
[50] Fourth, and most importantly, evidence was led from police officers about their contact with her but no evidence was led on the critical issue of whether she was subject to any active delusions that may well have affected her capacity to understand the probation order and her obligation to comply with its terms, both in December 2016 and January 2017. (See Capano, supra.) In other words, all I know is that she was subject to the orders but don't know if her probation officer reviewed the terms, the consequences of not complying and what it means by failing to keep the peace/be of good behavior and contacting her neighbor. No evidence was adduced from the probation officer who could have discussed the order as well as any mental health issues as identified by their office and efforts at counselling, if any. The evidence on this issue cuts both ways on the issue of whether an assessment is "necessary". I can reasonably infer that there was lawful compliance with the orders (or at least not reported to the police) for a period between October 2016 and December 2016 then again between December 2016 and January 2017. There's no suggestion she was so mentally ill between the time periods that she could not be supervised at all.
[51] In the end, there is nothing inherent in both breaches of court orders that would give me reasonable grounds to doubt her ability to appreciate her acts or the wrongness of them. Even if she is possibly NCR that doesn't satisfy the burden on the Crown.
C. Conclusion
[52] The Crown's application for an assessment is therefore dismissed. On agreement, the matter will proceed to sentencing. I would like to thank the parties for their helpful material on this delicate issue.
Released: February 16, 2017
"F. Javed J."