ONTARIO COURT OF JUSTICE
DATE: 2022 07 18
COURT FILE No.: Metro North, Toronto Region 20-45000464
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Gregory POTTER
Before: Justice Cidalia C. G. Faria
Heard on: July 5, 2022
Reasons for Ruling- NCR Assessment released on: July 18, 2022
Counsel: Imran Shaikh....................................................................................... counsel for the Crown Kathryn Doyle................................................................... the defendant Gregory POTTER
Faria J.:
I. Overview
[1] Mr. Potter was charged with a single count of Criminal Harassment and proceeded to represent himself with s.486.3 counsel Ms. Marissa Etwaroo assisting. The trial proceeded on December 2, and 3, 2021. Just before cross-examination of the complainant, s.486.3 counsel alerted the Court that a s.16(1) not criminally responsible (NCR) because of mental disorder may become an issue. I ruled the issue could not be properly raised by s.486.3 counsel as she did not have instructions to do so. The trial continued.
[2] At the close of the Crown’s case, Amicus, Mr. Elliott Starer, was appointed to assist the Court on the NCR issue as Mr. Potter had indicated he believed his mental health condition had affected him at the material time.
[3] On January 28, 2022, Amicus informed me Mr. Potter declined to pursue an assessment to determine if a finding of NCR was available to him. Mr. Potter then proceeded to represent himself at his trial.
[4] On April 7, 2022, Mr. Potter retained Ms. Doyle to make submissions on his behalf at the end of the trial.
[5] On June 13, 2022, I found Mr. Potter guilty of Criminal Harassment. However, before I convicted Mr. Potter, I stated the following:
At several points throughout the trial Mr. Potter made some unusual claims and made some unusual references. At one point, when a reference to a resolution was made, he stated: “with your order of me to do a treatment.” When s.486.3 Counsel referred to N.C.R. and the Court explained what the term ‘Not Criminally Responsible” means, Mr. Potter stated that he was “a hundred percent sure” that it applied to him.
For this reason, I would like to hear submissions on the issue of NCR.
II. Position of the Parties
[6] On July 5, 2022, the Crown requested the Court make an order for an assessment of Mr. Potter’s mental condition at the time of the offence pursuant to s.672.11(b) of the Criminal Code. Mr. Shaikh submitted Mr. Potter put his mental status at issue and there are reasonable grounds to doubt that Mr. Potter is criminally responsible on account of a mental disorder. He relied on references in the trial transcript of Mr. Potter believing he is a human source for the Canadian Security Intelligence Service (CSIS), that the complainant Dr. Bartucci, had a top-secret weapon, was treasonous and harmed him via virtual communication transmissions. He submitted this demonstrated delusional beliefs.
[7] Ms. Doyle opposes the request. She submits firstly, as Mr. Potter did not testify, his submissions and comments to the Court are not evidence and so he did not put his mental status at issue. Secondly, there are no medical reports before the Court and so there is no evidence to ground a reasonable belief to doubt Mr. Potter is criminally responsible.
III. The Facts
[8] Mr. Potter requested to be Dr. Michael Bartucci’s friend on Facebook in 2011 or 2012. After initial social media contact and telephone calls, Dr. Bartucci blocked Mr. Potter from his phone and his social media. Mr. Potter left Dr. Bartucci gifts at his workplace, continued to contact him and made numerous additional friend requests, all with romantic overtones over the course of 8 to 9 years. All contact was blocked, and all friend requests denied. Dr. Bartucci never responded once.
[9] I found Mr. Potter was definitively aware Dr. Bartucci did not want to be contacted by April 2019 and he put that in writing to Dr. Bartucci’s sister. In June 2019 Mr. Potter continued to contact Dr. Bartucci via Facebook and was cautioned by the police. He posted “The Toronto Police were just here at my house claiming that ‘the doctor’ is claiming that I harassed him. Hmmm…It’s really interesting that he attempted to assassinate me on March 6, 2019. I sent them right to your house. It’s okay to kill someone? Plate full. [1]
[10] On February 3, 2020, Mr. Potter contacted Dr. Bartucci twice. He declared himself to be a “Royal England Recipient”, said Dr. Bartucci was “under investigation by treason”, he was being harassed, and he attempted to intimidate and threaten Dr. Bartucci.
[11] At the time of the calls, Mr. Potter referred to military terms he had previously referenced in his communications to Dr. Bartucci, such as “the Canadian Armed Forces are looking for him” and that, as he is L. Col Potter of RCAF, he would bring Dr. Bartucci home from abroad. He also indicated “We can see when you view my message through your camera, IT SQL, Python, and back doors. [2] He posted Dr. Bartucci was “recruited by the real Donald Trump to secretly assassinate Canadian citizens”, he alleged Dr. Bartucci was “responsible for the charges of conspiracy to commit murder” and alleged Dr. Bartucci and his sister were “equipped with CIA sabotage voice synthetization and need to be cuffed immediately.” [3]
[12] During the entirety of the trial, Mr. Potter made numerous references to the military, his role in CSIS and the CIA. The following are just a few examples:
- “Because of the nature of my involvement with CSIS, I attempted to retain a lawyer at least five times. All of them refused because of the involvement of the intelligence service.”
- “You are welcome to contact CSIS in your own chambers” and refer to “CSIS file number is 1162020163, as well as self protection activity, 1162020164” regarding records of Dr. Bartucci attempting to commit murder.
- The Officer in Charge is in conflict as he was aware Dr. Bartucci had committed “treason”.
- “I’ve meant that I joined CSIS as a surveillance officer in 2019” [4]
[13] After the issue of NCR was referred to, I explained the reference, the process in general terms and then that Mr. Potter could raise the issue at the appropriate time.
Court: But if you wanted to raise that issue, you could, because it is up to you to decide whether you want to raise the issue. Raising the issue means that you would be telling me that during the time of the behaviour, and the actions and the conduct, and the voice mail messages, the voice mail messages, during that time, you may have been suffering from a mental health illness that may have affected you, and your behaviour the way you thought about things. And if you think that may be relevant, that your mental health condition at that time affected things you said or did or what you thought was happening, you have the right to tell me that you might be not criminally responsible.
…are you asking me about whether this applies to you?
Mr. Potter: I’m pretty – I’m a hundred percent sure it does, Your Honour.” [5]
[14] Dr. Bartucci, though not a psychiatrist, is a medical doctor and testified as follows about Mr. Potter:
- He had “a romantic disconnection from reality”,
- He had an “odd romantic side that was going on for like eight or nine years. It turned into this, you’re an assassin and you’re trying to kill me, and you should be in jail”
- “… this was a departure, and I had serious concerns, one for safety, but also like has this person—if they have an issue, have they decompensated and they need to see someone”
- “I said I want him to get help because I think something has changed here where I’m really concerned about his mental state because this in not normal, like posts…in a weird paranoid world that is not reality”.
- “I want him to get help so that he’s safe for himself and for me.”
- “No. 1, all, of – everything he’s saying about me is not in keeping with reality…No. 2, he has no insight into the fact that I’m not an assassin, that I’m not trying to hurt him, that he’s not suppose to contact me”. [6]
[15] When questioned by Ms. Etwaroo in cross-examination, Dr. Bartucci testified:
- He disagreed he had “communicated many times” with Mr. Potter “virtually on the intelligence transmission”.
- He disagreed he “had access to CSIS, or C.F.E. intelligence files which would actually prove these communications”.
- He disagreed he had “physically harmed” Mr. Potter “through these intelligence transmissions whereas he ended up in hospital”.
- He did not know Mr. Potter is “a human source under CSIS”. [7]
[16] Among the dozen or so witnesses, Mr. Potter submitted he wished to call, were former Governor General Julie Payette, Minister of Public Safety Bill Blair, and Minister of Justice David Lametti as well as numerous individuals he only knew by first name or employment title. Mr. Potter submitted these individuals had confidential CSIS information and intelligence regarding his CSIS files. The Court accepted the Amicus submission these individuals did not have relevant evidence to give. I denied an adjournment request to have Amicus assist Mr. Potter subpoena these individuals.
IV. The Law
[17] The Crown applies for an NCR assessment pursuant to s.672.11 of the Criminal Code:
Assessment order
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);
Defence of mental disorder
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
[18] It is a principle of fundamental justice that the criminal justice system does not convict a person who was insane at the time of the offence. The accused must not be treated unfairly and the criminal justice system itself must maintain its integrity. Society is interested in ensuring that an insane person is not incorrectly labelled as a criminal: R. v. Swain, [1991] 1 S.C.R. 93 at ¶ 45.
[19] The consequences of a finding of Not Criminally Responsible because of a Mental Disorder may be profound and as a result, “a high degree of procedural fairness and scrupulous attention to the rights of the accused person are required” as outlined in R. v. Szostak, 2012 ONCA 503 at ¶64.
[20] Following a finding of guilt, but prior to a conviction, or if the accused puts his or her mental capacity or criminal intent into question, the Crown may raise the issue of Not Criminally Responsible by reason of a mental disorder pursuant to R. v. Swain, [1991] 1 S.C.R. 93.
[21] The Court may issue an assessment order if it has “reasonable grounds to believe” that such evidence is necessary to determine whether the accused was exempt from criminal responsibility. As Justice Trotter indicated in R. v. John Doe, 2011 ONSC 92 at paragraph 40, a mere “possibility” that the accused was not criminally responsible at the material time is insufficient.
V. Analysis
[22] Ms. Doyle submits that as Mr. Potter was self-represented and did not testify, he did not put into evidence his mental state at the material time of the offences and his submissions and comments to the Court cannot be considered for this purpose. I agree Mr. Potter’s submissions regarding his mental health were provided without the benefit of legal advice, and as such should not be seen to be putting his mental capacity or criminal intent into question.
[23] However, the Court can make independent observations of Mr. Potter’s submissions and behaviour and on its own motion raise the issue. Had the Crown not made an application pursuant to s.672.11 the Court would have considered an assessment is required. Regardless, that need not be decided as the Crown has made an application.
[24] Ms. Doyle submitted there are no medical records or reports for the Court to consider and as such the Court has no basis to order an assessment. However, no particular evidence is necessary as long as the basis for the belief is “clear and plainly appears on the record of the proceedings” as Justice Schneider stated in R. v. Isaac, 2009 ONCJ 662 at ¶24.
[25] Ms. Doyle refers the Court to R. v. Williams, 2014 ONCJ 225 and R. v. Sammut, 2017 ONCJ 302 where the jurist in each case declined to order an assessment. Mr. Williams plead guilty to public mischief and failing to comply with a recognizance. When the offences were committed, Mr. Williams was agitated and aggressive. Though officers knew him to have schizophrenia, there was no evidence that mental illness was in effect or affecting Mr. Williams at the time of the offences and so Justice Chapin did not order an assessment. After trial, Ms. Sammut was found to have failed to comply with a probation by breaching the peace as she had thrown eggs at her neighbour’s window. Justice Javed found there was nothing inherent in either breach that gave him reasonable grounds to doubt Ms. Sammut’s ability to appreciate her acts or the wrongness of them and so decided the Crown had not met its onus.
[26] Williams and Sammut are substantially different than the case before me.
[27] Mr. Potter’s acts of criminal harassment on February 3, 2020, are recorded and in evidence. Mr. Potter refers to situations that did not exist. He seems to believe Dr. Bartucci was contacting him and harassing him and that he was being investigated for treason. Dr. Bartucci had not contacted Mr. Potter in almost 8 to 9 years and not being investigated for treason. These references speak to possible delusions operating in Mr. Potter’s mind at the material time of the offence.
[28] I agree with Justice Bovard in R. v. DeVillers, 2018 ONCJ 210 at paragraph 24, when he stated at paragraph 24, referring to R. v. Capano, 2014 ONCA 599 at ¶34:
The Court stated further that ‘for a judge to order an assessment under s.672.11(b) does not require that there be reasonable grounds to believe that the accused is actually exempt from criminal responsibility – only that there be reasonable grounds to believe that further evidence of the accused’s mental condition is necessary to determine whether the accused is exempt from criminal liability.
VI. Conclusion
[29] I conclude the Crown has met its onus on a balance of probabilities. There are reasonable grounds to believe, found in the evidence, that Mr. Potter, at the time of the commission of the criminal harassment, may have been suffering from a mental disorder that affect his appreciation of the nature and quality of his conduct or to know that it was wrong. As result an assessment pursuant to s. 672.11 of the Criminal Code is necessary to determine whether Mr. Potter is exempt from criminal responsibility pursuant to s.16(1) of the Criminal Code.
Released: July 18, 2022 Signed: Justice Cidalia C.G. Faria