ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 146/12
DATE: 20131001
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
STEPHEN ELLIS
Appellant
Kim Walker, for the Crown
Jonathan Bliss, for the Appellant
HEARD: September 25, 2013
TROTTER J.
INTRODUCTION
[1] Stephen Ellis was charged with assault (i.e., spitting) and threatening death arising from a dispute with a bus driver. After a trial presided over by the Honourable Madam Justice D. Oleskiw, Mr. Ellis was found to be not criminally responsible (NCR) under s. 16 of the Criminal Code. He was referred to the Ontario Review Board for a disposition hearing. Mr. Ellis is currently at CAMH in Toronto.
[2] On appeal, Mr. Ellis challenges the trial judge’s NCR finding. For the following reasons, the appeal is dismissed.
SUMMARY OF THE FACTS
[3] On August 6, 2011, Mr. Ellis was on a Mississauga Transit Bus that pulled into the Long Branch station in Etobicoke. The bus was equipped with a security camera that vividly captured what happened next. From the back of the bus, Mr. Ellis can be heard yelling: “Your church is on fire! Your church is on fire!” Mr. Ellis came to the front of the bus and launched into a profane tirade at the bus driver. Standing inches away from the driver, Mr. Ellis screamed various profanities at him and spat on him a number of times. Among other things he called the driver: “a fucking Hell’s Angel”, “a fucking RCMP”, “a fucking Jesus” and “a fucking loser.” He told the driver that it was a “Hazel Nut” problem. He kept saying “your church is on fire.” The driver told him to leave. Mr. Ellis told the driver “I’m going to smear the sidewalk with you.” As he turned and moved towards the door, Mr. Ellis dropped his pants, spread his buttocks and said “suck my fucking asshole.”
[4] Once off the bus, Mr. Ellis held the doors open with his arm and continued his verbal abuse of the driver. Interestingly (at least in terms of the issues discussed below), more than once, the bus driver said to Mr. Ellis, “Buddy, you’re in trouble.” At one point, Mr. Ellis screamed back, “No I’m not – my church is on fire.” The second time he defiantly yelled, “No, I’m not!”
[5] Mr. Ellis was unable to hold the doors open any longer. As they closed, his right arm became stuck between them. The bus moved forward just lightly. Mr. Ellis removed his arm, pounded the bus door window with his fist and gave the bus driver the finger, bringing the incident to an end.
[6] The trial judge found that Mr. Ellis was the person on the bus, caught on video. She found him guilty of the two offences with which he was charged. After this finding, the Crown declared its intention to have Mr. Ellis declared NCR, a procedure that he resisted. The trial judge was persuaded to make an assessment order pursuant to ss. 672.11(b) and s. 672.12(3)(b) of the Criminal Code.
THE NCR PROCEEDINGS
[7] An assessment was carried out by Dr. Ian Swayze. He completed a report, dated February 23, 2012. Mr. Ellis was 38 years old at the time. The report revealed that Mr. Ellis had interactions with psychiatrists in the past, dating back to 2004. It was reported that he had previously exhibited auditory and visual hallucinations, as well as delusional thinking. Over time, a diagnosis of schizophrenia developed. When he met with Mr. Ellis, Dr. Swayze said: “His thought form was severely disturbed with prominent tangentiality, circumstantiality and over inclusiveness. He was overtly delusional and made a variety of spontaneous and bizarre statements….”.
[8] Dr. Swayze confirmed the diagnosis of schizophrenia. He concluded that Mr. Ellis was fit to stand trial. However, Dr. Swayze wrote that Mr. Ellis’s actions at the time of the offences flowed from the symptoms of his core psychiatric delusional theme – people “religiously assaulting” him. Having viewed the video of Mr. Ellis on the bus, Dr. Swayze said that it revealed a state of mind consistent with his presentation at the interview. Dr. Swayze described Mr. Ellis’s behaviour on the bus as “acutely psychotic, with prominent and persecutory delusions…extremely agitated, and may have been experiencing perceptual disturbance such as auditory hallucinations.”
[9] Dr. Swayze concluded that Mr. Ellis qualified for a defence under s. 16 of the Criminal Code. In terms of the two arms reflected in that section, Dr. Swayze said:
If in fact he was able to appreciate the legal transgressions of his actions, he would not have viewed these as morally wrong as they were driven by intense delusional beliefs, nor would he have been able to incorporate that knowledge into rational thought and action. His cognitive processes at that time were disorganized to such an extent that he would likely have been unable to appreciate the nature and quality of his actions.
[10] Dr. Swayze testified at the NCR hearing that commenced on June 19, 2012. He adopted the contents of his report, including his diagnosis (of schizophrenia) and his opinion concerning the application of s. 16 of the Criminal Code.
[11] In his testimony-in-chief, Dr. Swayze emphasized that, at the interview, Mr. Ellis was very difficult to follow, very thought disordered and very delusional. In cross-examination, Dr. Swayze acknowledged that he did not have a note of asking Mr. Ellis whether or not he knew that spitting on and threatening the bus driver was wrong. Dr. Swayze agreed that obtaining an answer to that question “possibly could” be relevant to his ultimate findings. However, he noted that Mr. Ellis’s responses to his questions were often nonsensical. He said that most of the interview was consumed with Mr. Ellis pursuing his delusional themes. As Dr. Swayze said: “So that question may have been posited and the response may have been so nonsensical as to not identify that the question was posed.” When asked about whether Mr. Ellis knew this acts were wrong, Dr. Swayze answered: “The legal component, I’m not clear of. The moral component, I would suggest that he felt he was vindicated and appropriate to do so.”
[12] For the purposes of the arguments made on this appeal, it is important to note that Dr. Swayze agreed with the basic proposition that being schizophrenic and in a psychotic state does not equate with a finding of NCR. Dr. Swayze said that, having initially looked at the synopsis of the charges, he thought that the incident was quite trivial and that, on the surface, Mr. Ellis’ conduct looked quite organized. This caused him to approach the case with a presumption of criminal responsibility. However, Dr. Swayze’s view was changed by observing the video and then interacting with Mr. Ellis during the assessment.
[13] Mr. Ellis testified at his NCR hearing. He admitted that he spat on the bus driver. He said that he got angry while he was on the bus. He asserted that he knew that it was wrong to spit on the driver and that he told Dr. Swayze this during the assessment. He immediately volunteered that he entered a plea of not guilty because he wanted the videotape played in court so that everyone could see that the driver closed the bus door on his arm and tried to drive away. Mr. Ellis said that he wanted to press charges.
[14] In his examination-in-chief, Mr. Ellis was often unfocused and tangential. This became more pronounced during cross-examination. He demonstrated seriously disordered thought processes, endorsing various delusions and ideas that were observed by Dr. Swayze during the assessment.
THE TRIAL JUDGE’S DECISION
[15] The learned trial judge reserved her decision on the NCR issue. She delivered her judgment and gave reasons on July 17, 2012. The trial judge accepted the opinion of Dr. Swayze that Mr. Ellis was NCR at the time.
[16] This appeal is focused on the issue of whether Mr. Ellis was incapable of knowing that his actions were wrong at the time. This theme is addressed in the following passages from the trial judge’s reasons:
Dr. Swayze concludes that Mr. Ellis’…ability to reason would have been impaired by his active psychosis. Even if he was able to appreciate the legal transgressions of his actions, he would not have viewed them as morally wrong as they were driven by intense delusional beliefs.
Further, Dr. Swayze believes that Mr. Ellis’ cognitive process at the time of the offences were so disorganized that he would likely have been unable to appreciate the nature and quality of his actions. In particular, Mr. Ellis held a series of persecutory and paranoid beliefs that were further exacerbated by high levels of agitation. In Dr. Swayze’s opinion, Mr. Ellis appears to have been of the belief that his actions were an attempt to reduce his persecution or at least lodge protests and protect perceived victims, including himself.
In cross-examination Dr. Swayze concluded that while it is difficult to know if Mr. Ellis appreciated the nature of his behaviour on August 6, he could agree that Mr. Ellis understood that he was spitting at the bus driver. He remained firm in his position that he did not believe that Mr. Ellis “knew that it was wrong” however. He was firmly of the opinion that Mr. Ellis was suffering from delusions during the offence that made him believe that the bus driver was not just a bus driver but rather a member of the Hell’s Angels, the RCMP, Jesus Christ or some other entity and, as such, it was morally correct to protect his spirituality – his church.
After considering all of the evidence in this matter, I find that the Crown has met its onus and demonstrated on the balance of probabilities that Mr. Ellis was suffering from a disease of the mind at the material time, being paranoid schizophrenia, that exhibited itself in delusions and the disease of the mind rendered Mr. Ellis incapable of knowing that the acts of threatening and spitting were wrong. I accept Dr. Swayze’s evidence, particularly after hearing from Mr. Ellis, and find that there is a clear evidentiary link between Mr. Ellis’ mental illness and his capacity to choose between right and wrong at the time of the index offence.
In other words, I accept that the delusion relating to some sort of religious assaults took away Mr. Ellis’ ability to know his threats and spitting at [the complainant] were wrong. [emphasis added]
ANALYSIS
[17] Mr. Ellis takes no issue with the trial judge’s finding that he committed the acts necessary to constitute the offences of assault and threatening death. He challenges the trial judge’s conclusion on the NCR issue. There is no dispute about the diagnosis of schizophrenia. On Mr. Ellis’s behalf, Mr. Bliss argues that the trial judge erred in finding that it had been established on a balance of probabilities that, when he spat upon and threatened the bus driver, Mr. Ellis was incapable of knowing that his acts were wrong.
[18] There is no suggestion that the trial judge erred in her articulation of the law; instead, the contention is that the NCR verdict was unreasonable and unsupported by the evidence. The standard of review in this context was addressed in R. v. Fraser (1997), 1997 6315 (ON CA), 33 O.R. (3d) 161 (C.A.), in which Doherty J.A. said at p. 167:
This court's jurisdiction to set aside a finding of not criminally responsible on account of mental disorder on the basis that the finding was unreasonable is the same as this court's power to set aside a conviction for that reason. 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 described in s. 16(1) of the Criminal Code then this ground of appeal must fail.
The same test is applicable for summary conviction appeals: Criminal Code, s. 822(1).
[19] Mr. Bliss argues that the trial judge erred in finding Mr. Ellis NCR in the absence of evidence from Mr. Ellis that, subjectively, he did not know that his actions were wrong within the meaning of s. 16 of the Criminal Code: see R. v. Oommen (1994), 1994 101 (SCC), 91 C.C.C. (3d) 8 (S.C.C.). This complaint is rooted in the fact that, during his assessment of Mr. Ellis, Dr. Swayze did not specifically ask Mr. Ellis whether he knew that his actions were wrong at the time. As Dr. Swayze explained in his evidence, Mr. Ellis was in such a disordered state that making that sort of inquiry of him would have been pointless or futile.
[20] Mr. Bliss also points to the testimony of Mr. Ellis at the NCR hearing when he said that he knew that his actions were wrong at the time. Mr. Bliss acknowledges that the trial judge quite reasonably determined that Mr. Ellis suffered from a mental disorder at the time and was having delusions. However, he argues that she erred by moving from that factual finding to a finding of NCR without properly applying the two arms of the test set out in s. 16.
[21] It is well-accepted that the mere presence of a delusion cannot support a finding of NCR: see R. v. Ratti (1991), 1991 112 (SCC), 62 C.C.C. (3d) 105 (S.C.C.), at p. 113, R. v. Woodward, 2009 ONCA 911, at paras. 3 and 5, R. v. Guidolin, 2011 ONCA 264, at para. 17. Dr. Swayze acknowledged this elemental proposition during his testimony. As the passage from the trial judge’s reasons reproduced at para. 16 above show, she clearly understood that more was required to support a finding of NCR. She went further, probing whether the illness and the delusions rendered Mr. Ellis incapable of appreciating the nature and quality of his acts or knowing that they were wrong.
[22] It is true that Mr. Ellis testified that, when he spit at the driver, he knew that it was wrong. However, the trial judge rejected this evidence, noting that Mr. Ellis’s testimony as a whole was “presented with extremely disorganized thoughts and was unresponsive to the Crown’s questions.” The trial judge rejected the assertion that she must accept Mr. Ellis’s evidence on this point merely because Dr. Swayze may have failed to ask this question during the assessment. As she said:
The difficulty with this submission is twofold. First, Mr. Ellis’ assertion that he knew the spitting was wrong is a bare assertion in chief in a field of otherwise tangential and disorganized answers to the questions the Crown asked in cross-examination. Further, Mr. Ellis gave no evidence about whether he believed the threatening was wrong. [1]
[23] I can find no error in the trial judge’s analysis of this issue. She accepted Dr. Swayze’s explanation for failing to make a specific inquiry of Mr. Ellis about his understanding of the wrongfulness of his action. She was entitled to do so. Moreover, just because Mr. Ellis asserted otherwise did not require the trial judge to accept his evidence on this point. The trial judge explained why she rejected this evidence.
[24] It bears mentioning again that the entire incident giving rise to this case was caught on video. Dr. Swayze said that it is extremely rare to have access to this type of material while performing NCR assessments. He found it very valuable. The trial judge also had the benefit of viewing this evidence. Having watched it myself, it dramatically confirms the opinion of Dr. Swayze and the conclusions of the learned trial judge.
CONCLUSION
[25] The trial judge made no errors in how she addressed the NCR issue. Her findings and conclusions are amply supported by the totality of the evidence. Accordingly, despite the very helpful submissions of Mr. Bliss, the appeal is dismissed.
TROTTER J.
Released: October 1, 2013
COURT FILE NO.: 146/12
DATE: 20131001
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
STEPHEN ELLIS
Appellant
REASONS FOR JUDGMENT
TROTTER J.
Released: October 1, 2013
[1] As I recounted above in paragraph 4, when bus driver told Mr. Ellis that he was “in trouble”, Mr. Ellis said that he was not and that his church was on fire. This seems to support Dr. Swayze’s conclusion that, far from seeing his actions as wrong, at the time Mr. Ellis considered them to be morally correct or right, rooted in his delusions.