Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021·03·26 COURT FILE No.: Toronto Region 4817 998-18-75001765

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ANTHONY FRANCESCO MALITO

Before: Justice H. Borenstein

Delivered orally on: March 10, 2021 Written Reasons for Judgment released on: March 26, 2021

Counsel: Ms. S. Gray, counsel for the Crown Mr. A. Linds, counsel for the Crown Mr. R. Geurts, counsel for the accused Anthony Francesco Malito Ms. N. Sari, counsel for the accused Anthony Francesco Malito

BORENSTEIN, J.:

[1] This is a Ruling on a mistrial, initiated by me, prior to the imposition of sentence.

[2] Mr. Malito is 55 years old. He has no criminal record. He has a history of epileptic seizures. He has a paranoid personality disorder; a history of some anger; and suffers from PTSD. He has no history of acting violently.

[3] Mr. Malito lived in an apartment building. The complainant, Mr. Kennedy, was moving into the apartment next to Malito’s. Malito found the move noisy and disturbing. Malito confronted Mr. Kennedy, telling him he was being too noisy, to no avail. Malito also called the superintendent and police; also to no avail. A short time later, Malito is alleged to have come out of his apartment with a hammer or metal bar and, without warning, struck Mr. Kennedy in the face causing severe damage.

[4] Mr. Malito was found guilty of aggravated assault by Justice Wolski, who retired before sentencing.

[5] Pursuant to s. 669.2(2) of the Criminal Code, I am continuing this case. I am to “impose the punishment or make the order that is authorized by law in the circumstances”.

[6] Justice Wolski would have been authorized by law to declare a mistrial if he thought it advisable.

[7] A mistrial is an extraordinary remedy – which should only be granted in the clearest of cases to prevent a miscarriage of justice.

[8] In 2014, the Ontario Court of Appeal wrote in the decision of AG:

[A] mistrial is a remedy of last resort and should be ordered only where necessary to prevent a miscarriage of justice. Before granting this extraordinary remedy, the court should consider and reject as inadequate other less extreme remedies.

[9] In R. v. Truscott (2007), 2007 ONCA 575, 225 CCC (3d) 321 (Ont CA), a unanimous five-member panel of the Ontario Court of Appeal held that the power to overturn a conviction founded in a miscarriage of justice, “…can reach virtually any kind of error that renders the trial unfair in a procedural or substantive way.” (para 10)

[10] In my view, a miscarriage of justice would occur where a trial is fundamentally unfair.

[11] A trial would be unfair where the accused’s very defence was presented in such a manner that it was guaranteed to fail based on a misunderstanding by counsel of what was required in law for the defence to possibly succeed.

[12] Mr. Malito’s position has always been that he suffered an epileptic seizure and acted involuntarily during this attack and has no memory of the attack.

[13] I make no comment about whether that defence is true or not. But that was his position all along.

[14] He told that to the police on arrest.

[15] He told it to the author of the Pre-sentence Report (PSR).

[16] He told it to Dr. Patel who conducted the assessment.

[17] And he testified to that in court.

[18] And was not really challenged in cross-examination on that assertion.

[19] He has a documented history of seizures and there is corroboration of a seizure earlier that day.

An expert is required to establish automatism

[20] Seizures have been found to cause involuntary actions resulting in automatism. However, this defence must be established on a balance of probabilities and must be supported by a qualified expert.

[21] The Court of Appeal in R. v. S.H., 2014 ONCA 150 made this clear. In S.H., the 60-year-old accused was alleged to have sexually assaulted two neighbours. He had no record. His testified that he had no memory of the attack due to a seizure but had no reason to disbelieve the two complainants. He called a neurologist who testified about the seizures and their relationship to the voluntariness of S.H.’s actions. The Crown called a neuropathologist who testified that S.H.’s actions were voluntary.

[22] The trial judge was satisfied the accused had no memory of the attack, had suffered a seizure connected to the crime and that his actions were involuntary. The trial judge noted the Supreme Court of Canada’s earlier decision in Stone which held that a defence of automatism had to be supported by an expert psychiatrist but, held that, since the issue before him was involuntariness caused by a seizure, as opposed to a mental disorder, the evidence of an expert neurologist rather than a psychiatrist could confirm involuntariness. As a result, he concluded that S.H. was in a state of automatism not caused by a mental disorder.

[23] The Court of Appeal overturned the finding due to errors concerning certain presumptions relating to mental versus non-mental disorder but reiterated that an expert is required to support the defence of automatism and that it must be established on a balance of probabilities.

[24] Despite this requirement, the defence presented Malito’s defence without an expert.

[25] As a result, the defence was presented in a manner in which it could not have possibly succeeded. And this was based on counsel’s misunderstanding of the legal requirements needed for the defence to be raised.

[26] Following the Agreed Statement of Facts [1], defence sought a not criminal responsible (NCR) assessment. Once the NCR report came back with an opinion that Malito did not have the defence of NCR available, defence counsel focussed on automatism caused by a seizure. That was really Malito’s position from the beginning.

[27] The case was adjourned for a hearing on the issue. Defence counsel said he had a psychiatrist retained but, on the return date, he called only Malito and three witnesses who provided evidence of Malito’s seizures. No expert was called. The trial judge asked what mental disorder Malito suffered from and counsel replied that he was going to argue automatism caused by an epileptic seizure. The judge asked if he was calling an expert and counsel said he was not.

[28] At the sentencing hearing, defence counsel indicated that he believed (and possibly still does) that he only had to raise a reasonable doubt about automatism. He did not know that an expert was legally required for the defence to succeed. He said they wanted an expert but could not afford one and did not believe one was required. He says he was clear, and the transcript reflects, that was not calling an expert. He submits that if the law was clear that an expert is required, then the Crown and Judge should have told him so.

[29] In my view, counsel’s fundamental misunderstanding about what was legally required to present Malito’s defence deprived Malito of having his defence properly presented or considered. That single error was so fundamental that it deprived Malito of effective assistance of counsel.

[30] Before turning to the impact of my finding of ineffective assistance, I have considered whether counsel’s failure to appreciate the need to call a properly qualified expert was cured by Dr. Patel’s evidence.

[31] In my view, it was not. The issue was whether an epileptic seizure caused automatism. That issue, as in S.H., required a neurologist and the failure to call that evidence cannot be cured by the evidence of a psychiatrist.

[32] Mr. Malito was referred to by Dr. Patel for psychological testing to determine if he might have been NCR at the time of the attack. Dr. Patel conducted the assessment with a psychologist and social worker.

[33] Dr. Patel is an eminent and highly respected psychiatrist. He is not a neurologist. Dr. Patel conducted tests, including memory, tests from a psychological perspective. Based on Malito’s personality, inconsistencies in his account and his distancing himself from the agreed statement of facts, Dr. Patel was of the opinion that the attack was likely motivated by anger, not on account of mental disorder which would render him NCR. With respect to automatism, he thought it was likely inapplicable for the same reasons.

[34] The difficulty in this case is that Dr. Patel and his team were not neurologists, which was the relevant discipline at issue here. The defence position was that Malito’s seizure was caused by epilepsy, which is a neurological condition. This was not about a mental disorder.

[35] Dr. Patel testified. He was qualified on consent in a very general, amorphous manner. Defence counsel indicated: “I think it’s appropriate now for me to concede the qualifications of the doctor and allow the Court to invite opinion evidence on his expertise”. (March 12, 2020, page 5, lines 13-16.) Crown counsel then said Dr. Patel should be qualified in psychiatry, (page 6, line 21).

[36] He was then questioned. In the first question, Crown counsel asked:

Q: I just have a question about memory and epilepsy. What can you tell us about your background or limitations in those areas?

A: Epilepsy is a neurological condition which is the realm of neurologists that is not something I practice. So that is not my area of expertise. Memory, as it pertains to mental disorder and medical legal issues, I am familiar with and it is part of my practice as a psychiatrist and a forensic psychiatrist.

[37] However, the next question was as follows:

Q: Okay, so I appreciate that epilepsy is not your area of focus or expertise, but what experience do you have with individuals who have epilepsy as it related to your psychiatric practice?

A: So epilepsy and certain forms of epilepsy can impact upon a person’s mental state and behaviour and comes within the really of psychiatry as well. Particularly when those symptoms require psychiatric intervention and psychiatric treatments. When it comes to the medical legal aspects of epilepsy, that does come within the realm of forensic psychiatry, particularly ascertaining whether those memory deficits are true or malingerer and indeed whether those memory deficits can be directly linked to a seizure disorder or indeed a separate psychiatric condition.

(Paras 6-7.)

[38] Despite the fact that he was not an expert in neurology, he was asked:

Q: – you indicated there some understanding you have of memory in the circumstances of a partial seizure of this nature. Can you just explain that again?

A: In my experience, I accept that I’m not a neurologist and my experience is limited in that regard. In my experience, when individuals have memory loss secondary to partial complex seizures, it is usually quite time limited and is usually global. It is not, sort of, so picky as it seems to be on this occasions.

(Page 15, lines 1-9.)

[39] With respect to automatism, Dr. Patel was of the opinion that the noise caused by the victim moving in was a triggering stimulus for Malito which had a distressing and negative impact on him. That coupled with Malito’s anger and “concerns” about Malito lying about his memory lapses, meant he could not support automatism in this case (p. 29-30).

[40] Justice Wolski asked Patel if epilepsy is a disease of the mind found in the DSM (The Diagnostic and Statistical Manual of Mental Disorders). It is not.

[41] In cross-examination, Dr. Patel repeated that epilepsy is a not a psychiatric condition but a neurological one (p.38) and that it can impair memory (p. 34). Defence counsel attempted to get Dr. Patel to concede that Malito was experiencing a seizure at the relevant time with which Dr. Patel agreed was possible.

[42] Accordingly, it is my view that the failure to appreciate or call a qualified expert was not cured by the evidence of Dr. Patel.

[43] When considering the impact of counsel’s failure to call an expert in support of the defence, in my view, it denied Malito the right to have his defence fairly presented to the Court. That is clear from the submissions and judgment.

Submissions at trial

[44] Defence counsel submitted before Justice Wolski that Malito was in a seizure induced state of automatism. He argued that there was a reasonable doubt the issue and – “even if – let’s say the burden was on me to prove as a probability, I would say I surpassed it”. The issue of the absence of an expert was never addressed by counsel.

[45] The Crown then submitted that the law is clear that the defence must call expert evidence to establish automatism on a balance of probabilities. At the conclusion of the Crown’s submissions, Justice Wolski asked the Crown to repeat the Supreme Court of Canada’s decision in Stone which said that an expert was required to establish automatism. The Crown read out the relevant paragraph, paragraph 192, from Stone.

[46] Justice Wolski then asked defence counsel if he had any reply, and he said he did not and was content to let that paragraph guide his Honour’s decision.

[47] Justice Wolski took a brief recess and returned with very short reasons for judgment. After reviewing the basic allegations and the lack of support for NCR, he turned to the only issue litigated at this hearing, namely, automatism; and held:

He raised the defence of automatism. He called no expert opinion from any psychiatrists. The Crown did call a psychiatrist. Mr. Malito’s evidence was that because he could not remember he assumed he had a seizure. The evidence filed as an exhibit through the team overseen by Dr. Patel, an eminent expert, indicates that they found no evidence of automatism. He also, in his testimony, indicated that epilepsy is a neurological disorder, not a mental disorder, or as was known in the older days, a disease of the mind. In the absence of evidence that would support a conclusion not only in the medical world but also in the legal world because section 16 is a combination of medicine and law, the Supreme Court of Canada in the case of R. v. Stone it is dictate the nature of the evidence that is necessary to persuade a Court on the balance of probabilities, that the person was in a state of automatism. The cross-examination by counsel for Mr. Malito of Dr. Patel was, well, you can’t rule out the possibility, and I am paraphrasing here, of course, that he had another seizure. “Of course, anything is possible”, said the doctor, which is true. But possibility and balance of probabilities are two different burdens. I find on the evidence that the only conclusion I can draw on a balance of probabilities is that Mr. Malito was in his right state of mind, he was not in any way in a seizure.

It would be contrary to his history to be violent if he was in a seizure. It is also contrary to the medical opinion of the team put together by Dr. Patel. What they did find was indicia of low threshold anger in mundane sort of situations and perhaps a series of volatility as a result, as well as stated dislike for most human beings. It is not his disposition from which I am going to find him guilty, but the circumstances of the facts of the case as indicated in the evidence detailing the events of April 13, 2018 together with the comprehensive report of Dr. Patel. The accused has fallen short of the burden to prove that he is not criminally responsible as a result of a mental disorder, there being a complete paucity of evidence that epilepsy and a series of partial complex seizures could cause automatism. It is not a disease of the mind or a mental disorder. I find the accused guilty of the offence as charged and reject his defence of not criminally responsible.

[48] The impact of the failure to call an expert was clear. It resulted in the Crown and Court being able to dispose of the defence summarily.

[49] In the 2017 Court of Appeal decision in R. v. Stark, 2017 ONCA 148, the Court wrote:

Third, the appellant must establish prejudice by showing that the incompetent representation resulted in a miscarriage of justice. The miscarriage of justice can be established in one of two ways. The first is to show that incompetent representation undermines the reliability of the verdict. The second is to show that the incompetent representation undermined the appearance of the fairness of the trial proceeding.

Most allegations of ineffective assistance of counsel take the first route, and involve claims that discrete instances of counsel’s incompetence worked to render the verdict unreliable. To succeed on this basis the appellant must demonstrate a reasonable possibility that, but for the incompetence, the verdict could have been different. That is the prejudice to be established. Examples from the cases include counsel’s failure to object to inadmissible evidence, the failure to call material witnesses, the lack of preparation for trial, failure to carefully review Crown disclosure, the failure to prepare the accused to testify, and the failure to cross-examine effectively, or at all.

(Paras 14-15.)

[50] In my view, the test for a mistrial has been met. This is one of the clearest of cases. It is exceptional. The failure of the defence to appreciate the need to call the evidence legally required for the defence being advanced, based on a fundamental misunderstanding of the law, deprived Malito of effective representation. It rendered the trial unfair and caused a miscarriage of justice. The Crown is seeking a sentence of almost five years in jail. I will not sentence Malito to custody where I believe there has been a miscarriage of justice, wait for him to launch an appeal to correct the problem.

[51] I have considered whether a lesser remedy than a mistrial is available – such as, allow the defence to now call an expert. I have concluded that is not available. Justice Wolski heard all the witnesses.

Written Reasons released: March 26, 2021

Signed: “Justice Borenstein”

Footnotes

[1] Without going through the history of these proceedings, as became apparent and as I reviewed in my earlier ruling, it was not really an agreed statement of facts as Malito claimed no memory of the evidence