COURT FILE NO.: 64/11
DATE: 20120118
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Debra Moskovitz, for the Crown
Respondent
- and -
ASTRIDA KANKIS
Astrida Kankis, on her own behalf
Christopher R. Murphy, amicus curiae
Appellant
HEARD: December 15, 2011
TROTTER J.
REASONS FOR JUDGMENT
INTRODUCTION
[1] Following the Supreme Court of Canada’s decision in R. v. Swain, [1991] 1 S.C.R. 933, Canadians now enjoy a much more enlightened system for dealing with those who are found unfit to stand trial or not criminally responsible on account of mental disorder (NCR). Since 1992,[^1] Part XX.1 (Mental Disorder) of the Criminal Code now provides a comprehensive and fair framework for addressing these difficult issues. But the implications of being found unfit to stand trial or NCR are still very dramatic, especially the latter. While Part XX.1 ensures that the situation of someone found NCR is constantly under scrutiny and subject to review, a person in this position may still be subject to various deprivations of liberty for the rest of his or her life. That is why procedural fairness must be jealously guarded and strictly enforced in this context.
[2] Unfortunately, this did not occur in Ms. Kankis’s case. After having been found guilty by the Honourable Madam Justice Sheila Ray of the Ontario Court of Justice on a number of fairly minor offences, Ms. Kankis was brought to court and handed a lengthy psychiatric report that the Crown wished to rely upon to have Ms. Kankis found NCR against her will. Ms. Kankis, who was without representation, asked for a short adjournment. The trial judge initially gave everyone the impression that there would be an adjournment. Ms. Kankis was sent back to the cells and given half an hour to read the report, without the aid of a pencil, pen or a highlighter. When she returned to the courtroom, she was advised that she would not be granted an adjournment. The NCR hearing commenced immediately. The author of the report, a psychiatrist, testified and Ms. Kankis did her best to cross-examine him. Ms. Kankis then testified on her own behalf, without the benefit of being guided through her testimony by counsel. Shortly afterwards, following submissions on the NCR issue and the appropriate disposition to be made under Part XX.1 of the Criminal Code, the trial judge immediately found Ms. Kankis to be NCR. To this day, she remains detained in a psychiatric facility.
[3] There was cogent evidence before the trial judge that Ms. Kankis was suffering from a serious mental disorder at the time of the offences. Moreover, the NCR finding was supportable on the evidence. But there must be a new trial. The NCR proceedings were conducted in a manner that undermined the integrity and fairness of the process and amounted to a miscarriage of justice.
FACTUAL BACKGROUND
(a) The Charges
[4] Ms. Kankis was charged with six counts of failing to comply with a recognizance. She was prohibited from communicating with members of a particular family. She had at one time been involved with a member of that family. Ms. Kankis sent six handwritten letters, by Canada Post, to this family between May and September of 2009. The letters are not menacing or threatening. But they are odd. They purport to be helpful in advising these individuals how to live their lives in a healthier manner. Ms. Kankis submitted to the trial judge that the letters were not generally criminal in nature and that she was just attempting to help them. In the end, the trial judge found that Ms. Kankis’s explanation did not amount to a defence for breach of recognizance and findings of guilt were made on all six counts.
(b) Earlier Appearances
[5] Ms. Kankis was arrested on October 6, 2009. She was held in custody until November 6, 2009. On April 12, 2010, she was remanded back into custody, where she remained until her trial commenced in July of 2010. On August 16, 2010, after the second day of trial, Ms. Kankis was found guilty on all counts. At that time, the Crown applied to have her found NCR. Prior to the NCR assessment being completed, Ms. Kankis was found unfit to stand trial. She was subject to a 60-day treatment order and was eventually found fit to stand trial on January 24, 2011. The case was adjourned until February 10, 2011 for the NCR hearing. In the meantime, Ms. Kankis remained hospitalized, subject to a “keep fit” order.
(c) The Adjournment Request
[6] The psychiatric assessment of Ms. Kankis was performed by Dr. Jonathan Rootenberg, a Staff Psychiatrist at the Centre for Addiction and Mental Health (“CAMH”). It was completed on February 8, 2011. A copy of this report, which was 13 pages long and single spaced, was provided to Ms. Kankis when she arrived in the courtroom, in custody, on February 10, 2011. It is important to note that Ms. Kankis had only been found fit to stand trial just over two weeks earlier. By this time, amicus curiae (not Mr. Murphy) had been appointed, but the precise scope of that appointment was unclear.
[7] On February 10, 2011, and for the first time in the protracted proceedings against her, Ms. Kankis requested an adjournment, for two weeks, so that she could retain counsel. Amicus counsel told the Court:
As well, Your Honour, Ms. Kankis phoned me this morning and indicated that, given the gravity of this particular situation, she has decided that she would like to retain counsel. [emphasis added]
During the discussion that ensued, Ms. Kankis expressed her intention to obtain a lawyer who would “represent me the way I want to be represented on the issues.” She said that, if she could not find an appropriate lawyer, she would represent herself “because I’d do a better job for myself.” The trial Judge responded by saying:
All right. Well, certainly if you want counsel I am going to facilitate that, and I would have done it already except that you did not want counsel before. [emphasis added]
[8] At this point, Crown counsel (not Ms. Moskovitz) indicated that she would not be available in March or April, due to another professional commitment and then holidays. She also advised the trial judge that she could not ask someone else to take over the case. After speaking about her own schedule, the trial Crown added the following information:
And I have to also indicate that as well, Dr. Rootenberg who is present today and he is a very busy man. So is Constable Alberta.
I will return to these comments by the Crown later in these Reasons. Similarly, amicus counsel expressed concerns about her own availability moving forward.
[9] After further discussion, Ms. Kankis told the Court “given the fact that I’ve just been given the report today, it’s impossible that I would be able to come up with all the answers.” Quite fairly, the trial judge responded by saying: “Well, we are not going to expect you to come up with all the answers today.” She then suggested that Ms. Kankis be given an opportunity to read Dr. Rootenberg’s report before moving forward. It was also suggested that amicus counsel determine whether a Special Duty Counsel, who had some previous involvement with the case, was available to speak to Ms. Kankis. Ms. Kankis acceded to both of these suggestions. She asked for a pencil to make notes while she read the report. A court officer said “[a]ny weapon can be used as a weapon.” When the Crown suggested a highlighter, the response was the same. Ms. Kankis then asked to remain in the courtroom (instead of being taken down to the cells) so that she could have the use of a writing implement. This request was also rejected.
[10] When Ms. Kankis was out of the courtroom and down in a holding cell, her case was addressed in her absence. The trial judge was told that the Special Duty Counsel (a “Mr. Rinsler”) mentioned earlier was off sick that day. The trial judge then said:
At 12:15, I want Ms. Kankis brought up….And I will hear what she wants to do and I will make my decision at that time….But I need everyone to stay until then, including the doctor, because we may be proceeding as originally intended but I am going to hear what she has to say and I will make a decision then.
[11] After a half hour break, Ms. Kankis was returned to the courtroom. There was some further discussion about getting in touch with counsel and Ms. Kankis said she would be “sourcing other lawyers.” The trial judge then made her ruling:
The issue, Ms. Kankis, about being represented by counsel has been raised throughout this very, very long hearing and it has come up at various times and we always get to the stumbling block that lawyers are not willing to represent you in the way that you wish to be represented and you end up representing yourself.
And I have thought about it. I have had a chance to think about it since this morning since the issue was raised. And I do not believe that if we adjourn again for you to speak to lawyers that you are going to be able to find a lawyer who is willing to represent you to your satisfaction in the way that you want to be represented. So, I am making a decision that we are not going to adjourn for that and we are going to proceed to hear from the doctor.
And I am disappointed that Mr. Rinsler [special duty counsel] is not here but I certainly understand that he is not here and he cannot be here to represent you. And he was representing you previously under protest anyway, but I found what he did do and he managed to be helpful. And before he became involved in this case we did manage without him and I am prepared to proceed today with the people that are here and that can assist me with the very important decision I have to make today. So, I am going to hear from the doctor.
(d) The NCR Hearing
[12] The NCR hearing commenced immediately after this ruling. Dr. Rootenberg’s report was filed. This comprehensive report states that Ms. Kankis suffers from a major mental disorder that is “most likely” schizophrenia. It detailed the fact that Ms. Kankis had previously responded well to medication for this disorder. It was the opinion of Dr. Rootenberg that, at the time of the offences, Ms. Kankis was experiencing delusional beliefs, including that she was endowed with special powers such as being an “ocean pilot.” She believed that she was morally obligated to intervene in the lives of the complainants because of her “special knowledge.” Dr. Rootenberg quoted from a report prepared by Dr. Percy Wright as part of the assessment process, in which it said: “Her ability to question or alter these extremely firmly held beliefs is extremely limited. As such, she is unable to know that these acts were fundamentally wrong, even in retrospect.” I pause here to note that Ms. Kankis persisted in asserting these beliefs during the hearing of her appeal. In the end, Dr. Rootenberg, supported by Dr. Wright, concluded that, while Ms. Kankis may have been able to appreciate the nature and quality of her actions, and to know that her actions were legally wrong, she was unable to know that they were wrong in a moral sense.
[13] Dr. Rootenberg testified at the hearing. His evidence reflected the contents of his comprehensive report. During his examination-in-chief, in addition to the NCR issue, the Crown asked him about appropriate dispositions should Ms. Kankis be found NCR. Ms. Kankis responded by saying:
I object. Are we not here for the NCR hearing? We’re not here to go over what the Ontario Review Board may or may not do and what a disposition should or should not entail.
The trial judge responded by saying that Ms. Kankis had made a “very good point” but that she wished to receive the information for the following reasons: “I have a number of choices at the end of this in terms what I may decide. I may do the disposition hearing myself or I may send it off to the Review Board.” Ms. Kankis was assured that she would be afforded the opportunity to make submissions.
[14] Without any assistance from amicus counsel, Ms. Kankis cross-examined Dr. Rootenberg. She had trouble focusing on the issues that were important to her case. Her questions were often irrelevant and confusing. She was stopped many times by the trial judge, who attempted to get Ms. Kankis to focus. In the end, and with respect, the cross-examination was valueless.
[15] Following Dr. Rootenberg’s evidence, Ms. Kankis testified on her own behalf. She was not afforded any assistance by amicus counsel in structuring or organizing her presentation. Consequently, her evidence lacked coherence and meaning. It did not really address Dr. Rootenberg’s report, nor the content of his evidence. When Ms. Kankis finished her testimony-in-chief, the Crown elected not to cross-examine.
[16] After Ms. Kankis’s evidence concluded, the trial judge heard submissions. Following extremely brief submissions by the Crown on the NCR issue, the trial judge entertained submissions on what types of orders the Crown was seeking under the Criminal Code. While this discussion transpired between the trial judge, the Crown and amicus counsel, Ms. Kankis interrupted twice to remind the trial judge that she had not been given an opportunity to make submissions on the s. 16 issue. In the end, amicus counsel agreed with the Crown’s submissions.
[17] Eventually, Ms. Kankis was permitted to make submissions. Again, she was largely unfocused. Immediately after these submissions, the trial judge delivered an oral ruling, finding Ms. Kankis NCR. The trial judge found that Ms. Kankis suffered from a serious mental illness that deprived her of the ability to know that her actions were morally wrong. She also concluded that the same mental illness rendered Ms. Kankis incapable of appreciating the nature and quality of her acts. This latter finding was contrary to Dr. Rootenberg’s report and his evidence in court.
[18] Ms. Kankis was then ordered detained in custody in a hospital under s. 672.46 of the Criminal Code, pending a disposition hearing before the Ontario Review Board. I was advised at the hearing of the appeal that Ms. Kankis was ordered detained in hospital by the Board. There are currently proceedings afoot in the Court of Appeal concerning this latest disposition.
POSITIONS OF THE PARTIES
[19] Ms. Kankis was self-represented on this appeal. She argues that the trial judge was wrong in finding her guilty. In the alternative, she argues that, if the finding of guilt was justified, she should have been convicted and sentenced for her offences, rather than being found NCR. Mr. Murphy appeared as amicus curiae. His focus is on the manner in which the proceedings were conducted. He argues that the failure to provide Ms. Kankis with an adjournment undermined the fairness of the proceedings in that it effectively forced her to defend herself without being adequately prepared to do so. Mr. Murphy points to earlier parts of the proceedings in which Ms. Kankis was assisted by Special Duty Counsel. He argues that she should have been afforded the same protection at the critical NRC juncture of the proceedings. For the Crown, Ms. Moskovitz argues that there was no unfairness involved in denying Ms. Kankis’s application for an adjournment, nor in the manner in which the case transpired after this refusal. Moreover, she submits that the evidence overwhelmingly supports the ultimate conclusion of the learned trial judge.
ANALYSIS
[20] Before delving into the specific grounds of appeal, I wish to re-visit my comments at the outset of these Reasons concerning the broader context of this type of case. While the current regime under Part XX.1 of the Criminal Code is modernized and Charter-compliant (see Winko v. B.C. (Forensic Psychiatric Institute) (1999), 135 C.C.C. (3d) 129 (S.C.C.)), there is still great scope for significant deprivations of liberty for those found NCR. In some cases, these deprivations may seem disproportionate, especially when the gravity of the accused person’s conduct is minor to moderate in nature. This was recognized by Joan Barrett and Riun Shandler in Mental Disorder in Criminal Law (Scarborough, Ont.: Carswell, 2006)(looseleaf), at p. 4-37:
Also, in cases where the offence charged is minor in nature, the accused may prefer to be convicted and sentenced rather than be found NCR and subject to the Review Board’s jurisdiction for an indeterminable length of time. Indeed, in some cases, it may be viewed as irresponsible to raise the defence where the offence charged is minor or only moderately serious.[^2]
[21] This point was also articulated in R. v. Lambie (1996), 28 O.R. (3d) 360 (Ont. Gen. Div.) which involved an appeal from a NCR finding on a charge of breaching a probation order. In allowing the appeal, Watt J. (as he then was) made the following observations about the implications of an NCR verdict in circumstances very similar to this case (at pp. 379-380):
At times, the criminal law proves itself a rather blunt instrument by means of which to deal with those who suffer from mental illness and are alleged to have committed non-violent crimes…A special verdict of not criminally responsible on account of mental disorder has significant consequences for a mentally disordered offender, Part XX.1 of the Criminal Code notwithstanding. It is especially so in the case of persons who prove intractable when offered treatment and whose "crime" is non-violent and would not attract substantial punishment upon conviction.
[22] In this case, it was completely understandable that Ms. Kankis resisted the Crown’s application to have her found NCR. She had already spent a considerable period of time in custody, significantly more time than she would have received had she been found responsible and sentenced for her minor offences.[^3] She deserved a fair opportunity to state her case.
[23] As far as Ms. Kankis’s arguments on appeal are concerned, there is no basis to set aside the learned trial judge’s findings of guilt. Similarly, I am not in a position to substitute my view of the NCR finding for that of the trial judge, based as it is on the specialized knowledge of a highly skilled expert witness, Dr. Rootenberg. As noted above, the trial judge’s conclusion was supported by the evidence.
[24] However, the procedural concerns raised by Mr. Murphy are another matter altogether. As a basic proposition, trial judges possess a wide discretion on routine matters of trial management, such as granting and refusing adjournments: see Darville v. The Queen (1956), 116 C.C.C. 113 (S.C.C.). However, these types of decisions are not impervious to review in appropriate circumstances. Dealing with this issue in R. v. Nichols (2001), 148 O.A.C. 344, Laskin J.A. said the following at para. 23:
Two rights are at stake: the accused's constitutional right to be represented by counsel, a fundamental right zealously protected by the court; and the trial judge's right to control the trial process, a right that includes a wide discretion to grant and refuse adjournments. In reviewing the trial judge's balancing of these rights, an appellate court should only interfere if the refusal of an adjournment deprived the accused of a fair trial or the appearance of a fair trial. See R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.). [emphasis added]
See also R. v. Hazout (2005), 199 C.C.C. (3d) 474 (Ont. C.A.), at para. 31.
[25] On occasion, courts have set aside NCR findings based on serious procedural flaws. See, for example, the recent decision of the Court of Appeal in R. v. P.A., 2011 ONCA 673, in which a mentally disordered young person was found NCR after a hearing in which he was denied the most basic of procedural safeguards (such as the right to be represented, even though an appointment of counsel had been previously made, and the right to cross-examine the Crown’s medical expert).
[26] In R. v. Langlois (2005), 195 C.C.C. (3d) 152 (B.C.C.A.), referring to the Charter, Levine J.A. held at p. 158 that “it seems trite beyond words that the procedural rights accorded to the accused at trial apply to a finding that he is NCRMD.” After detailing a litany of shortcomings at the original NCR hearing, she concluded by saying at p. 160:
The disposition of the appellant was determined without affording him the opportunity to put forward a full defence and violated his rights to fundamental justice. In summary, he was denied a proper hearing.
[27] This case falls into the same category. Ms. Kankis was only given a copy of Dr. Rootenberg’s report the morning of the hearing, and only after arriving in the courtroom. Her request for an adjournment was entirely reasonable in the circumstances. Initially, it seemed to strike the trial judge as reasonable as well. From my reading of the record, when she went down to the cells to read the report, Ms. Kankis could reasonably have anticipated that she would be granted an adjournment when she returned to the courtroom (although she may have wondered why she was being asked to read the report at that time, and why she was only given half an hour). As noted above, she was not provided with any sort of writing implement that she could use to make notes, not even a highlighter (as suggested by the Crown). Ms. Kankis’s reasonable suggestion that she be permitted to remain in the courtroom with a writing implement (and thereby obviating the security concerns posed by this taking place in the cells) was also refused. While Ms. Kankis was in the cells, her case was discussed in her absence. At this time, the trial judge advised everyone, including Dr. Rootenberg, to remain in attendance as the matter might proceed after all. By the time Ms. Kankis returned to the courtroom, the trial judge appeared to have changed her mind on the adjournment issue. The trial judge had just been advised that Special Duty Counsel, whom she had found helpful on an earlier occasion, was sick that day.
[28] I fail to understand what the hurry was to finish this case that day. Ms. Kankis asked for an adjournment of only two weeks. In my view, the Crown’s unavailability for months afterwards was not a valid reason to force Ms. Kankis on that day. And as noted above, the case was not complex, involving, at the most, moderately serious charges. The assessment report had already been completed. As it turned out, the Crown declined to cross-examine Ms. Kankis at all. The Crown’s submissions in support of the NCR finding took up less than a page of the transcript. There was no reason why another experienced Crown could not have stepped in to complete this case on a later occasion.
[29] I also wish to comment on the Crown’s submission to the trial judge that Ms. Kankis’s adjournment request should have been refused because Dr. Rootenberg, who was in court and ready to testify, was a “very busy man.”[^4] In the circumstances of this case, this was an inappropriate consideration. Dr. Rootenberg is a Staff Psychiatrist at CAMH. To my understanding, his professional responsibilities include appearing in court to testify in these types of proceedings. In other words, it is an important part of his job. To subordinate Ms. Kankis’s legitimate need for an adjournment to her staff psychiatrist’s schedule would surely have conveyed to Ms. Kankis that her interests were not very important at all, especially when there was so much at stake for Ms. Kankis. Again, one is driven back to the rhetorical question: “What was the hurry?”
[30] The trial judge seemed very concerned about what she described as this “very, very long hearing.” It is true that the trial was delayed from time to time, but not always at the behest of Ms. Kankis. Moreover, the case had been most recently delayed for 60 days because the trial judge had found Ms. Kankis unfit to stand trial. This could not possibly be counted against Ms. Kankis in deciding whether her request for a two-week adjournment was appropriate. And it must also be remembered that Ms. Kankis was only found fit shortly before the NCR hearing.
[31] It is abundantly clear from the record that Ms. Kankis was in serious need of legal assistance at this juncture of the proceedings. She received none from amicus counsel at trial. It is true that there were problems in the past when Ms. Kankis attempted to engage counsel. But at that time, she was faced only with the prospect of being found guilty of the relatively minor offences with which she was charged. When she was confronted by the Crown’s application to have her found NCR, the stakes were raised immeasurably. And Ms. Kankis was keenly aware of the gravity of her situation. She should have been given the opportunity to look into the possibility of obtaining counsel who would represent her in a manner that she found satisfactory. Perhaps the case could have been adjourned for a shorter period to await Special Duty Counsel’s return to work. At the very least, Ms. Kankis ought to have been given more time to consider Dr. Rootenberg’s report, especially before conducting her own cross-examination of this highly regarded expert.
[32] Moreover, upon reviewing the transcript, one is left with the sinking feeling that no one was looking out for Ms. Kankis’s interests. As noted above, Ms. Kankis objected to evidence being called on what might be an appropriate disposition prior to the determination of whether she was NCR. This theme continued during the hearing. Shortly into the Crown’s final submissions, the trial judge told the Crown that she would benefit from assistance on what orders the Crown was seeking, before hearing submissions from Ms. Kankis on the NCR issue. This was not lost on Ms. Kankis, who interrupted by saying, “I also have submissions for you.” After the trial judge told her she would have an opportunity, the discussion continued. At one point, the trial judge, the Crown and amicus counsel were all discussing post-NCR dispositions. Ms. Kankis interrupted again, saying, “But I have not made submissions yet.” The trial judge responded “I know” and the colloquy with counsel continued. Finally, Ms. Kankis was given an opportunity to make submissions.
[33] Being self-represented, Ms. Kankis would no doubt have felt that everyone else involved in her case was deciding what “to do” with her before she even had the opportunity to speak for herself. It may be appropriate to combine submissions on the NCR determination and dispositional issues when counsel for an accused person and the Crown agree to this procedure and the trial judge considers it appropriate. But when the person who is the unwilling target of a Crown NCR application is self-represented, it is not appropriate. It could only leave such a person with the impression that the substantive NCR issue has already been decided and that resistance is futile, as it turned out to be in this case.
[34] I wish to return to a point referred to earlier. Trial judges are entitled to considerable deference in deciding whether or not to grant an adjournment. This need for deference is heightened when the request comes in the middle of a lengthy proceeding. In these circumstances, the trial judge will have a real and special appreciation of the dynamics of the case, which will no doubt be valuable in the assessment of whether an adjournment would end up being productive or worthwhile. But I consider this case to be exceptional. Again, the decision by the Crown to have an accused person found NCR, especially for minor offences, raises difficult legal issues (see R. v. Swain, supra, R. v. Simpson, supra and R. v. Lambie, supra). Had Ms. Kankis’s request for an adjournment occurred during the trial proper, the refusal would likely be untouchable on appeal. However, once the Crown wished to seek an NCR designation, Ms. Kankis’s situation changed dramatically. It was unfair to provide Ms. Kankis with a copy of a lengthy report and expect her to fight back by herself, with virtually no time to prepare. Had she been represented by counsel all along, counsel undoubtedly would have asked for an opportunity to study the report and to consider the possibility of seeking a defence assessment, as often happens in NCR cases. It seems almost inconceivable that defence counsel would have been unsuccessful in obtaining an adjournment in the same circumstances in which Ms. Kankis found herself. As a self-represented litigant, Ms. Kankis was entitled to no less. Indeed, it would appear that Ms. Kankis was never apprised of the possibility of seeking an opinion from a different expert.[^5]
[35] In response to all of this, the Crown argues that, even if the trial judge ought to have granted an adjournment, the appeal should be dismissed because the finding of NCR was inevitable on the record in this case. In other words, because Ms. Kankis was not actually prejudiced, any error was harmless, in the sense that no substantial harm or miscarriage of justice was occasioned: see s. 686(1)(b)(iii) of the Criminal Code.
[36] First of all, I am not convinced that the error was necessarily harmless. As Mr. Murphy pointed out in his Factum and in his submissions, the Special Duty Counsel who previously assisted Ms. Kankis had made some headway with Dr. Rootenberg in the earlier fitness proceedings. Experienced counsel may have been effective in probing the vagaries of moral wrongfulness, one of the key components of this NCR hearing. Typically, this branch of the s. 16 inquiry is played out in cases involving extreme violence, where illegality and wrongfulness are virtually co-extensive. The application of the concept of moral wrongfulness to an offence such as breach of recognizance is not so straightforward. Some might say that this type of offending does not engage conceptions of “morality” in the same way. This is something that could have been probed with Dr. Rootenberg. Counsel might have assisted in framing and developing this issue for the trial judge during submissions. In this vein, it is to be recalled that Ms. Kankis did demonstrate an understanding that her behaviour in breaching her recognizance was legally wrong, and said that she would comply with a direction not to contact the complainants again.
[37] In determining whether there was a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code, further and broader considerations are engaged, including those related to the appearance of fairness. The Court of Appeal has held on numerous occasions that a miscarriage of justice need not always be supported by the demonstration of actual prejudice to an appellant; sometimes, public confidence in the administration of justice is just as shaken by the appearance as by the fact of an unfair proceeding: see for example, R. v. Cameron (1992), 64 C.C.C. (3d) 96 (Ont. C.A.), at p. 102 and R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 220-221.
[38] In a related vein, in R. v. F.E.E., 2011 ONCA 783, [2011] O.J. No. 5738 (Ont. C.A.), the Court of Appeal found that s. 650 of the Criminal Code had been infringed upon when the accused was improperly excluded from parts of his trial. Addressing the concept of “prejudice” as it related to the curative provision in s. 686(1)(b)(iv), Watt J.A. said the following at para. 33:
The term "prejudice" in s. 686(1)(b)(iv) refers not only to prejudice to an individual accused's ability to properly defend her or himself and to receive a fair trial, but also to prejudice in the broader sense of prejudice to the appearance of the due administration of justice: R. v. Kakegamic, 2010 ONCA 903, 265 C.C.C. (3d) 420, at para. 36.
I would put this case on a similar footing. For the reasons detailed above, the appearance of fairness at Ms. Kankis’s NCR hearing was seriously undermined by the events that transpired.
[39] At the end of the day, it is the trial judge who ultimately bears responsibility for the fairness of the proceedings. However, judges do not work alone. It is expected that Crown counsel, as the Attorney General’s representative, will discharge their duties with fairness, especially to self-represented, mentally ill litigants. In this case, the Crown could have stepped in to ensure that things were not done too hastily. Instead, the opposite occurred. Similarly, amicus counsel might have spoken up to suggest that the appearance of fairness was being compromised by what was transpiring. She did not. I have no doubt that everyone involved in this case was interested in doing what they thought was “best” or “right” for Ms. Kankis. But, in the process, her legal rights were factored completely out of the equation and the proceedings became fundamentally unfair. This can only be rectified by having the issue properly determined at a new trial.
CONCLUSION
[40] Accordingly, the appeal is allowed and the verdict is set aside. In accordance with s. 686(4)(b)(i) of the Criminal Code (made applicable to summary conviction appeals by virtue of s. 822(1)), a new trial is ordered.
[41] I wish to express my appreciation to Mr. Murphy for his excellent written materials and submissions during the hearing of this appeal.
TROTTER J.
Released: January 18, 2012
COURT FILE NO.: 64/11
DATE: 20120118
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
ASTRIDA KANKIS
Appellant
REASONS FOR JUDGMENT
TROTTER J.
Released: January 18, 2012
[^1]: S.C. 1991, c. 43. [^2]: See also Hy Bloom and Hon. Richard D. Schneider, Mental Disorder and the Law: A Primer for Legal and Mental Health Professionals (Toronto: Irwin Law, 2006), at pp. 131-132. At p. 132, the learned authors observe that: “There is no predictable correlation between the seriousness of the offence and the final disposition.” See also the discussion of this issue by Martin J.A. in R. v. Simpson (1977), 35 C.C.C. (2d) 359 (Ont. C.A.), at pp. 359-360. [^3]: By my calculation, Ms. Kankis has been detained for over 680 days on these summary conviction offences. And it is not clear to me that her offending would have merited a custodial sentence at all. [^4]: I note that there is no indication that this submission was prompted by Dr. Rootenberg himself. Nor is it clear that this was a factor that the trial judge relied upon in refusing the adjournment. [^5]: I accept that there would have been real practical hurdles in facilitating another report in the circumstances. Still, during her submissions, Ms. Kankis said to the trial judge: “Physician Rootenberg is only one physician. He obviously did not give respect to other physicians that I had seen.”