ONTARIO SUPERIOR COURT OF JUSTICE

Court File No.: SCA 115/10
Date: 20120518

BETWEEN:

HER MAJESTY THE QUEEN Respondent
– and –
CONRAD BROWN Appellant

Brad Demone, for the Crown/Respondent
Maureen Addie, for the Appellant

Heard: May 16, 2012

KELLY J.

REASONS FOR DECISION

[ 1 ] The Appellant was charged with assault contrary to the Criminal Code , R.S.C., 1985, c. C-46 arising out of an altercation that occurred outside a Coffee Time restaurant on January 21, 2010. On April 27, 2010, the Appellant pleaded guilty.

[ 2 ] Following the plea, Crown Counsel made an application pursuant to s. 672.12 of the Criminal Code . She requested a Court ordered assessment to determine if the Appellant was not criminally responsible (“NCR”) at the time the offence occurred. The assessment was ordered.

[ 3 ] Dr. Rootenberg provided a report to the Court which concluded the Appellant was not NCR. He testified before Lapkin J. along with a number of other witnesses. Following submissions the Appellant was found NCR.

[ 4 ] The Appellant raises the following issues on appeal:

a. Was the NCR verdict unreasonable?

b. Were the trial judge’s reasons sufficient?

c. Was there sufficient evidence to support a finding of NCR?

[ 5 ] For the reasons set out below, the appeal is dismissed.

Was the NCR verdict unreasonable?

[ 6 ] Both Counsel agree that this Court’s jurisdiction to set aside a finding of NCR has been defined by the Ontario Court of Appeal in R. v. Fraser [1] :

The appellant must demonstrate that a trier of fact acting reasonably and properly applying the law could not have arrived at the finding of not criminally responsible on account of mental disorder. If the evidence provided a reasonable basis for a finding, on the balance of probabilities, that the appellant operated under either of the incapacities in s. 16(1) of the Criminal Code then this ground of appeal must fail.

[ 7 ] The relevant issue in this appeal is the proper interpretation of a second branch of the NCR test set out in s. 16(1) of the Criminal Code : whether the Appellant was capable of knowing that his actions were wrong at the time of the assault.

[ 8 ] During this appeal, great consideration was given to the circumstances of the assault to determine whether the Appellant knew his actions were wrong. The victim of the assault, Mr. Clifford Allen, testified in the proceeding before Lapkin J. and said:

a. The Appellant came out of the Coffee Time restaurant and started to talk about a “guy that get [sic] killed at Eglinton a couple of years ago”.

b. Mr. Allen did not want to hear the argument. Accordingly, he told the Appellant to “get away from here. I don’t want to hear your argument”.

c. Mr. Allen walked away from the Appellant and lit a cigarette. A couple of minutes later, the Appellant came around and punched him.

d. After Mr. Allen was assaulted, the Appellant walked up Eglinton Avenue.

e. Mr. Allen said the Appellant was not in “the right state of mental – of mental mind”.

[ 9 ] The Appellant did not testify before Lapkin J., but provided his account of the occurrence during an interview with Dr. Rootenberg and he said the following:

a. “I was talking about my dead friend and this guy interrupted me, so I assaulted him. I knew that it was wrong doing that, but he was talking right when my friend died and said ‘fuck you and your dead friend’”.

b. That he was outside of Coffee Time having a cigarette and talking with another person about the death of his friend “Nixon”. At that point, “this guy [Mr. Allen] jumped up and said ‘I don’t want to hear about your fucking friend”, so I punched him.

c. That he felt disrespected by Mr. Allen and that is why he punched him.

[ 10 ] In his reasons, Lapkin J. referred to the inconsistencies in the evidence of Mr. Allen and what the Appellant reported to Dr. Rootenberg. He accepted the events as described by Mr. Allen and found him to be credible. He found that the account provided by the Appellant was “completely delusional”.

[ 11 ] Lapkin J. was required to assess the evidence surrounding the assault in order to determine whether the Appellant was capable of knowing that his actions were wrong at the time of the assault. It appears that he preferred the evidence of Mr. Allen which would suggest that Mr. Allen did nothing to show disrespect to the Appellant. The assault took place a few minutes after Mr. Allen was conversing with the Appellant and therefore Lapkin J. concluded that the assault was unprovoked. But this was not the only evidence considered.

[ 12 ] The circumstances giving rise to the assault cannot be viewed in a vacuum and one must consider the entirety of the facts as they existed at the time and the evidence of Dr. Rootenberg which may be summarized as follows:

a. P.C. Rajindra Singh (a 20-year veteran of the Toronto Police Service) observed the Appellant wearing pyjamas on the date of his arrest and shortly after the incident: January 21, 2010. He described the Appellant as appearing to be “not in touch with reality at some parts”. He would be calm and then suddenly shout in a threatening and violent manner. The Appellant was threatening to “cap” (shoot) people. He thought that the Appellant was suffering from a mental health issue.

b. Detective Craig Brennan (also a veteran police officer) testified that he supervised the Appellant on the night of his arrest at the police station. The Appellant advised the officer that he was schizophrenic and threatened to “cap” him and other officers. Although the threat was made, Det. Brennan did not take it seriously.

c. Mr. Allen claimed to be in possession of two Glock handguns which was obviously not possible in the state of his dress when arrested (pyjamas).

d. Dr. Jonathan Rootenberg (Staff Psychiatrist at CAMH) provided a report dated June 14, 2010 that was supported by Dr. Wright (a psychologist). Both concluded that a finding of NCR was not appropriate.

e. Dr. Rootenberg also testified at the hearing on June 23, 2010 and said the following:

i. That he struggles with the opinion of whether the Appellant was NCR because “his major mental illness impacted on his rational thoughts at the time” but it was questionable as to whether it reached the standard to understand that his actions were wrong. In particular, he struggled with this finding “given his high quality of anti-sociality”.

ii. “The difficulty here was having enough – enough evidence to buttress our view that he may have been unable to appreciate knowing that what he did was actually wrong. Certainly, we aren’t saying that he didn’t manifest any mental illness or stigmata of that”.

[ 13 ] The fact that the Appellant pleaded guilty approximately four months later has no bearing on the analysis as to whether he understood the nature and quality of the act he committed: assault on January 21, 2010. The legally relevant time for consideration of whether the Appellant is NCR is at the time of the offence and not four months later. [2]

[ 14 ] Further, there was no evidence that supports the submission that the conduct of the Appellant may be explained by the fact that he was impaired by alcohol or narcotics as submitted. The Appellant did not testify and there was no other evidence that supported such a finding.

[ 15 ] Lastly, the fact that the Appellant walked away does not support the submission that it is “consciousness of guilt” regarding the assault. There is evidence that the Appellant believed that he was being pursued by others at the time he walked away.

[ 16 ] While it is true that Dr. Rootenberg found that the Appellant was not NCR in his initial report, it was clear that Dr. Rootenberg “struggled” with the question of whether the Appellant understood that his conduct on the date in question was wrong. Lapkin J. made the legal finding of NCR as he was entitled to do and based upon all of the evidence before him – Dr. Rootenberg’s evidence included.

[ 17 ] Although I might not have come to the same conclusion, I find that the Appellant has not demonstrated that a trier of fact acting reasonably and properly applying the law could not have arrived at the finding of NCR on account of mental disorder in this case. There was a reasonable basis, on all of the evidence, for such a finding on the balance of probabilities that the Appellant suffered from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts and in particular, that they were wrong. Accordingly, this ground of appeal is dismissed.

Were the trial judge’s reasons sufficient?

[ 18 ] The principles that I bear in mind in coming to my conclusion that the reasons are sufficient have been set out by the Court of Appeal and the Supreme Court of Canada. [3] Most important for the purpose of this analysis, is that judges owe an obligation to the losing party to explain why that party lost and in criminal cases, the accused is entitled to know why he was convicted. In this case, the Appellant is entitled to know why he was found NCR. [4]

[ 19 ] In my view, the reasons for decision are sufficient because in his analysis of the evidence, the trial judge demonstrated the route he took to his finding and such analysis permits effective appellate review. A review of his reasons demonstrates that he considered the law and the facts which supported his conclusion. For example Lapkin J.’s reasons refer to the following:

a. The position of Counsel for the Appellant.

b. The correct interpretation of s. 16 of the Criminal Code and the burden on the Crown to prove that the Appellant was NCR.

c. The evidence of Mr. Allen whom the trial judge believed did nothing to provoke the attack.

d. The evidence of the two police officers who observed the Appellant at the time of the offence and shortly thereafter: wearing pyjamas, saying that he possessed two Glock handguns, etc.

[ 20 ] Most importantly, Lapkin J. explains the reconciliation of Dr. Rootenberg’s report and evidence:

The other elements that I think are important are that Dr. Rootenberg has indicated quite clearly that he cannot exclude a major mental illness as being the cause of his attack at the time, and that he cannot exclude that Mr. Brown did not appreciate wrongfulness.

In my view, the trial judge considered the entirety of the evidence of Dr. Rootenberg in coming to his conclusion. He refers to having read the lengthy report and he had just finished hearing Dr. Rootenberg testify. The evidence of Dr. Rootenberg supports the conclusion made by the trial judge immediately following the hearing of the evidence and submissions.

[ 21 ] I am not satisfied that these reasons are so deficient as to rise to the level of insufficient within the meaning of R. v. Sheppard , supra . When read as a whole, it is clear why the trial judge found the Appellant NCR.

Was there sufficient evidence to support a finding of NCR?

[ 22 ] For all of the abovementioned reasons, there was sufficient evidence to support a finding of NCR.

Conclusion

[ 23 ] Although I have dismissed the appeal, I wish to commend Counsel for the Appellant who represented her client vigourously.

[ 24 ] I also wish to commend the Appellant personally. Although the decisions of the Ontario Review Board were not relevant for the purposes of considering the ultimate issues in this appeal, Counsel for the Appellant included them in her Book of Authorities. I note that the decision of October 20, 2011 was very encouraging about the Appellant’s development.

[ 25 ] There are many positive comments about the Appellant but one that I found particularly insightful was at para. 19: “Mr. Brown was dismissive of the team when he first came into hospital but he is now much improved in this area and is interested in pursuing prosocial aspects of life and it is expected with continued structure, he will continue to do well”. I wish the Appellant the best of luck in his continued progress.

Kelly J.

Released: May 18, 2012

COURT FILE NO.: SCA 115/10
DATE: 20120518

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – CONRAD BROWN Appellant

REASONS FOR DECISION Kelly J.

Released: May 18, 2012

[1] 1997 6315 (ON CA) , [1997] O.J. No. 1282 at para. 19

[2] R. v. Oommen , 1994 101 (SCC) , [1994] S.C.J. No. 60 at para. 29

[3] See: R. v. M. (Y.) , 2004 39045 (ON CA) , [2004] O.J. No. 2001 (C.A.) and R. v. Sheppard (2002), 2002 SCC 26 () , 162 C.C.C. (3d) 298 (S.C.C.)

[4] See. R. v. M. (Y.) , supra, at para. 21