Court Information

Ontario Court of Justice

Date: March 2, 2020

Court File No.: TORONTO 4817 998 17-15004131; 4817 998 17-15004577

Parties

Between:

Her Majesty the Queen

— and —

Craig Cotterell

Before: Justice Howard Borenstein

Procedural History

Pleas of Guilty: July 25, 2017

NCR Hearing Dates: September 7, November 6, December 6, 13, 19, 2018 and January 30, 2019

Reasons for Judgment: Originally scheduled for February 8, 2019, but defendant absconded. Defendant now before the Court. Reasons for Judgment released March 2, 2020

Counsel

Ms. Erin Winocur — Counsel for the Crown

Ms. Anita Nathan — Amicus Curiae for the defendant Craig Cotterell

DECISION

Overview

[1] This is my decision in relation to whether Craig Cotterell was not criminally responsible for two assaults he committed. This ruling was supposed to be delivered a year ago, but Mr. Cotterell did not attend Court. He was just recently arrested and is now before the Court.

[2] On July 25, 2017, Craig Cotterell plead guilty to two assaults he committed on strangers and related breaches of a probation Order that required that he keep the peace and be of good behaviour.

[3] The first assault occurred on May 26, 2017. Cotterell was in front of the Eaton Centre. He threw a piece of paper at the forehead of a stranger and was held by a security officer. He initially claimed that he did not know the complainant was there when he threw the paper. When the police attended, he initially refused to disclose his name. He plead guilty to that assault and to breaching a November 2016 Probation Order.

[4] The second assault occurred on June 10, 2017 and was more serious. Mr. Cotterell was walking on Queen Street West. He dropped something and bent down to pick it up. As he did, the victim, Ms. Lu, was walking in Cotterell's direction and stepped around him. All of a sudden, Cotterell punched her in the side of the head and kept walking. She said: "What was that for?" but he kept walking and speaking to himself. She did not hear what he said. When the police attended, he initially told them to arrest him but then refused to give his name. He plead guilty to that assault and to another breach of the same condition of probation.

[5] Mr. Cotterell was 39 at the time of these offences. He is now 40. He has a criminal record which is an exhibit at this hearing.

Expert Opinion

[6] The Crown sought a s. 48 Mental Health Assessment to assess if Cotterell was NCR at the time of these offences. Over Cotterell's objections, I granted the assessment Order. Dr. Lisa Ramshaw, a well-known, well qualified forensic psychiatrist, met Cotterell on August 11, 2017, four to six weeks after these offences and conducted her assessment at the CAMH brief assessment unit. Mr. Cotterell told Dr. Ramshaw that he did not want to be found NCR. He denied having a mental illness, although he conceded that some doctors had previously told him that he suffers from schizophrenia.

[7] Dr. Ramshaw prepared a report which was made an exhibit and she gave evidence. She is of the opinion that Cotterell likely was suffering from an active psychotic illness at the time of these offences, schizophrenia, and could not assess the moral wrongfulness of his actions. She supported a finding of "not criminally responsible" ("NCR").

[8] The Crown seeks a finding that Cotterell was NCR on account of a mental disorder pursuant to s. 16 of the Criminal Code. Cotterell opposes such a finding. He is presumed to be criminally responsible unless the Crown displaces the presumption of criminal responsibility.

[9] Cotterell is self-represented but has been greatly assisted by Ms. Nathan who was appointed as amicus. Ms. Nathan and Ms. Winocur for the Crown have been very thorough and thoughtful in their presentation of this case.

Holding

[10] I find that Cotterell is criminally responsible for these offences. The Crown has not displaced the presumption of criminal responsibility. I make this finding for two reasons.

[11] First, Dr. Ramshaw's opinion relies heavily on important facts and materials that are not before the Court, much less proved. Accordingly, the weight of her opinion is significantly diminished.

[12] Second, as Dr. Ramshaw herself acknowledged, more implicitly than explicitly, the question of whether Cotterell was NCR at the time of the two assaults involves a process of trying to reconstruct and infer his mental state. It is a close call and is based on limited information about his mental state on the dates in question and upon which reasonable experts might disagree. In my view, the closeness of the call, together with other evidence which suggests that, at the time, he knew his conduct was wrong, renders a finding of NCR too tenuous.

Reasons

[13] I begin with the first reason.

NCR and Hearsay

[14] Dr. Ramshaw interviewed Cotterell four to six weeks after these offences to try to determine his mental state at the time. Cotterell told her that he did not have a mental illness but acknowledged that some doctors told him he suffers from schizophrenia. He told Dr. Ramshaw that he had not taken medication in about two years. Although Dr. Ramshaw could not recall how long she spent with Cotterell, his mental state seemed to fluctuate within the interview. He was sometimes rational; sometimes not. He made delusional comments, such as the Court wanting to take his house and million-dollar company from him. He became more paranoid, grandiose and disorganized in his speech. She testified that his comment that he knew the assaults were wrong made no sense to her in light of his further comment that they were accidental. Cotterell also displayed anti-social personality traits. Dr. Ramshaw testified that she would not have been able to form her opinion based solely on her interview with Cotterell.

[15] In addition to her interview, she also reviewed the following sources of information, none of which were before this Court:

i. Medical records from The Ontario Shores Centre for Mental Health Sciences ("Ontario Shores") relating to Cotterell, including a 2012 hospital report to the Ontario Review Board ("O.R.B.") and the Reasons for Disposition dated January 16, 2013;

ii. July 3, 2014 admission records from Waypoint Centre for Mental Health Centre Care ("Waypoint") and the discharge summary dated December 15, 2015;

iii. Waypoint Hospital Report to the O.R.B. dated July 31, 2015;

iv. O.R.B. reasons for disposition dated September 17, 2015;

v. Medical notes from the Forensic Early Intervention Service ("FEIS") at the Toronto South Detention Centre ("TSDC") dated June 13 to August 3, 2017;

vi. Police brief for the charges herein, including the synopsis, police notes and victim impact statement;

vii. Psychiatric assessment in relation to criminal responsibility prepared by Dr. Wong dated April 24, 2014, where Dr. Wong concluded that Cotterell was criminally responsible.

[16] While Dr. Ramshaw could not express her opinion based on her interview alone, she was able to when she considered the information in the above records, particularly Cotterell's medical records and the FEIS records where doctors Glancy and Patel describe Cotterell's behavior at the Toronto South, which they either observed themselves or were told about by correctional staff. Based on these sources and, to a lesser extent, the other records she reviewed, she was of the opinion that Cotterell had a psychiatric disorder, schizophrenia being the most prominent, as well as a history of alcohol and cannabis use and likely could not assess the moral wrongfulness of his actions. He also displayed anti-social personality traits.

[17] The issue in this hearing is, other than her interview and the guilty plea, none of the materials relied upon by Dr. Ramshaw were before the Court.

[18] While an expert may rely on hearsay information in forming an opinion, and that opinion is admissible in Court, the weight to be given to that opinion may be diminished to the extent that important factual matters that underpin the opinion are not proved.

[19] The FEIS records, and the observations and characterizations of Cotterell's behavior noted by doctors Glancy and Patel and the correctional staff were essential factual matters underpinning Dr. Ramshaw's opinion, and were not before the Court. Neither was his diagnosis of schizophrenia.

[20] The Crown submits that the medical records and the observations of the doctors as opposed to the observations of the correctional officers, need not be proved even though they form a significant part of the basis for Dr. Ramshaw's opinion as they come from experts expressing opinions about matters within their expertise. Mr. Cotterell, supported by amicus, submits that those kinds of essential facts specific to Cotterell's behavior and which themselves form the basis of the expert opinion, need to be before the Court or the opinion may be entitled to less weight.

[21] The Crown relies upon on the comments of Sopinka, J., writing for himself in a concurring opinion in R. v. Lavallee, [1990] 1 SCR 852.

[22] In Lavallee, the Court dealt with whether an expert opinion was admissible when it was based in part on inadmissible evidence; namely, Lavallee's out-of-court statements to the expert about her fears of her spouse. Lavallee also told the police she feared for her life when she shot her spouse, and that statement was in evidence.

[23] Lavallee had been abused for years by her spouse. She shot him in the back of his head as he was leaving the room. She was acquitted but her acquittal was overturned on appeal. In restoring the acquittal, the Supreme Court held that, as long as there is some admissible evidence underlying an expert's opinion, an opinion is admissible. The jury should then be instructed that the more an expert's opinion depends upon facts not proven in evidence, the less weight the jury may give the opinion. The Court held that the expert's opinion about why battered women remain in abusive relationships and how their perceptions of danger differs from non-battered persons was admissible as it could assist the trier of fact in determining whether Lavallee herself acted upon those perceptions.

[24] In his concurring judgment, Sopinka, J. spoke of an apparent contradiction where an expert's opinion is admitted into evidence but then none of the underlying facts are proved. The contradiction was how something that was legally entitled to no weight could still be admissible. Justice Sopinka resolved this contradiction by referring to a "practical distinction" between evidence that an expert obtains and acts upon within the scope of his or her expertise and evidence he obtains directly from a party to the litigation touching a matter directly in issue, citing the City of St. John v. Irving Oil, [1966] SCR 581, as an example of the former and Abbey as an example of the latter.

[25] In my view, Justice Sopinka was referring to facts about which there could be no realistic dispute which are provided to an expert who then provides an opinion within the scope of the expert's expertise.

[26] He did not intend to eliminate the requirement of proving important contentious facts or relieve the party proffering expert opinion evidence from proving the underlying factual basis of that opinion especially where, as here, the underlying facts are themselves a mix of observations and opinions. Nor did he intend that these facts be assumed to be true simply because the observations were being reported by a non-party. Non-parties' observations are often unreliable, and the Court must determine whether the important factual underpinnings of an opinion exist. The term "party to the litigation" is too narrow. Taken literally, parties would be relieved of proving these contentious facts simply by allowing that information to be conveyed by non-parties. That was not what was intended. This can be seen by Justice Sopinka's specific reliance on the St. John case.

[27] In St. John, the City of St. John expropriated land and offered the landholder compensation. The landowner rejected the compensation as inadequate and the matter went to arbitration. The arbitrator admitted and relied upon an appraiser's opinion of the value of the land which he based on the recent sale price of adjacent lands. The landholder appealed arguing that the price of the adjacent lands was hearsay and therefore the appraiser's opinion ought not to have been admitted. In rejecting that argument, the Supreme Court held that it was a matter of weight. But on the point of the value of the adjacent land sales being hearsay, i.e., the point Justice Sopinka referred to, he held: "To characterize the opinion evidence of a qualified appraiser as inadmissible because it is based on something that he has been told is, in my opinion, to treat the matter as if the direct facts of each of the comparable transactions which he has investigated were at issue whereas what is in truth at issue is the value of his opinion."

[28] In other words, there was and could be no debate that the adjacent lands were sold for a known price. Based on those prices, the appraiser formed his opinion. Whether the adjacent lands were appropriate comparators could be the subject of cross-examination but there could be no issue that the adjacent lands were sold for the specified price.

[29] That is far different from the opinions and impressions of doctors and correctional officers about Cotterell's behavior which then formed the basis of Dr. Ramshaw's opinion. Cotterell's mental state at the time of the assaults was critical and his behavior around that time was essential to Dr. Ramshaw's opinion and was something the Crown needed to prove to support Dr. Ramshaw's opinion.

[30] The Crown also relies upon R. v. Skrzydlewski, [1995] O.J. No. 3914 (Ont. CA). Skrzydlewski killed his neighbor and contended that he was NCR. The defence called two psychiatrists who supported that opinion. Those psychiatrists relied upon a variety of materials to form their opinion including: a) their own observations of Skrzydlewski and those of the hospital staff conducting the assessment; b) records from other hospitals; c) statements from Skrzydlewski to hospital staff; and d) opinions from other doctors who saw the accused at other hospitals before his assessment. The jury accepted the experts' evidence and found the accused NCR.

[31] On appeal, the Crown argued that the judge erred by failing to instruct the jury of the impact of those hearsay sources on the experts' opinions. The Court of Appeal disagreed holding that, while the judge could have been clearer and itemized the various sources and commented upon their respective value, the failure to do so did not impair the jury's ability to assess the experts' opinions and noted that the trial Crown never requested such an instruction. The Court noted that the judge cautioned the jury that it could not use the accused's or others' statements to hospital personnel as evidence of the truth of their contents and further cautioned the jury not to rely upon the opinions of experts who did not testify. The Court of Appeal seemed to endorse the trial judge's instruction to the jury that certain hospital records, which were not specified, did not suffer from the same hearsay dangers as the other material and referred to Justice Sopinka in Lavallee. Both counsel advise that this case has not been referred to by any other case.

[32] R. v. Scardino, [1991] OJ No. 960 (Ont. CA), is another example of the Court holding that to the extent that an expert opinion depends upon significant facts not proved, it was entitled to less weight.

[33] To repeat, the facts that are important to an expert's opinion must be proved unless they cannot realistically be doubted failing which, the opinion likely will be given less weight. That did not occur in this case. The Crown has not established on balance that Cotterell was actively psychotic at the time of these two offences and unable to assess the moral wrongfulness of his action on those two dates. On that basis alone, I would find Cotterell criminally responsible though quite clearly, his mental health has impacted his criminal conduct.

[34] There is also a second basis for finding Cotterell criminally responsible.

[35] Dr. Ramshaw interviewed Cotterell six weeks after the offences in an effort to try to determine his mental state on the dates of these two assaults. She testified that schizophrenia is a chronic condition and Cotterell told her he had not taken medication for two years. She testified that there is a spectrum of psychosis and thought disorganization from low level symptoms with some rational thought to very disorganized and obvious symptoms. She could not agree that Cotterell was on the lower end of the spectrum as her information was too limited. She agreed that people with schizophrenia may make rational decisions even in the midst of psychosis and agreed that people who are actively psychotic may be criminally responsible.

[36] Further, she testified that Cotterell's mental state, like everyone's, fluctuates even within a day, including on the date she interviewed him.

[37] Cotterell did display anti-social personality traits. She was aware that doctors Wong and McGovern had previously diagnosed him with anti-social personality disorder and believed his prior crimes were primarily as a result of that disorder. She felt she had too limited information to diagnose him with anti-social personality disorder, but he did exhibit anti-social personality traits. She agreed these assaults were possibly the result of that disorder but felt it was likely otherwise as he had not been medicated for two years and had not been using drugs. It was pointed out that during an earlier hospitalization, Cotterell was compliant with his medication yet remained abusive and it was suggested that this meant his conduct was as a result of anti-social personality rather than psychosis. She testified that she could not rule that out but thought it more likely as a result of his mental disorder as there was no evidence of substance abuse.

[38] In the end, the information about Cotterell's mental state that day is quite limited. Dr. Ramshaw referred several times to the constraints of the information she had about Cotterell on the date of these offences. Further, given that his mental health fluctuates, given that people with schizophrenia and active psychosis may be rational and aware and criminally responsible and, finally, given the numerous contra-indicators that were adduced that suggest Cotterell knew his conduct was wrong that day and was distancing himself from his conduct, combine to render a finding of NCR too speculative and tenuous on the evidence in this case. He will be found criminally responsible for these offences.

[39] Finally, there are many people on the streets of Toronto suffering from significant mental health issues. Their mental health plays a major role in their coming before the criminal courts. Obviously so. And yet, they may at times be dangerous to others. Their moral culpability is often diminished by their mental health illness. Despite their diminished moral culpability, they are presumed and usually are responsible in law for their actions and the matter gets dealt with by way of sentencing. This is such a case.

Released: March 2, 2020

Signed: Justice Borenstein