ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-85-AP
DATE: 2014/01/24
BETWEEN:
HER MAJESTY THE QUEEN
D. King , for the Respondent
Respondent
- and -
WILLIAM RUSSELL STEPHENS
Mr. Stephens, self represented
Appellant
HEARD: January 22, 2014
The Hon. Mr. Justice Arrell
JUDGMENT
Introduction:
[1] Mr. Stephens appeals his two convictions on charges of mischief and fail to comply, after pleading guilty before Stead J. on July 20, 2009. He was sentenced to time served of 21 days and 12 months of probation.
Facts:
[2] The mischief charge arose when Mr. Stephens, on January 24, 2009, while in the midst of a matrimonial dispute with his wife, attended at the home of a friend of his wife, and while pounding on the door demanding to see his children, broke a window in the door valued at $80.00.
[3] The fail to comply charge was as a result of an incident on June 21, 2009. Mr. Stephens was on probation for an assault, when he communicated with his wife, contrary to the non-communication term of the probation order. The parties had been separated for approximately 10 months. It was a high conflict matrimonial dispute. Exchange of the children was at the Brantford police department. Mr. Stephens returned the children on the 21of June with his girlfriend in his car. While the exchange took place in the parking lot he called his wife a bitch and gave her the finger.
[4] The facts read in before Stead J. also indicate that on June 25 he left a voice message at CAS that he was going to “rip Kim Stephens one more time…and tell the police so they can be present and I don’t give a goddamn what they do”. The next day he called the police and told them they were messing up his affairs and you have taken all my guns. He also left another message with CAS saying he would stay just outside the limits imposed by the court in front of Kim’s house and see where his children go and attend all their games, functions and no one can stop him.
[5] It is significant that on June 30th Mr. Stephens turned himself in to police. At the hearing before Stead J., the learned trial judge asked him on 3 occasions if he wished to plead guilty and explained S. 606 C.C.C. in detail. Mr. Stephens was clear he wished to plead and that it was completely voluntary. He agreed with the facts but with an explanation for some of his conduct that was ably explained by his lawyer. His only prior conviction was a domestic assault on his wife where he was given a conditional discharge and probation.
[6] It is also significant that lengthy submissions on sentence were made by his very experienced counsel to the effect that he was a well-educated high school teacher going through a bitter matrimonial dispute. His conduct by his counsel was classified as being upset regarding perceived problems with access to his children caused by his wife. Mr. Stephens’s lawyer said “He has not taken any counselling. He has no medical issues or no mental health issues.” There was no indication by Mr. Stephens’s wife at the bail hearing of any mental health issues. It is also significant that after sentence was passed Mr. Stephens asked the learned trial judge if the 20 meter distance to stay away from his wife could be waived when they both had professional development days together as they were both teachers.
[7] Mr. Stephens, on February 26, 2011 was charged with theft under $5,000.00 and performing an indecent act at a gas station. He was eventually found to be not criminally responsible pursuant to S.16 of the Criminal Code of Canada.
[8] The facts of that incident are in sharp contrast to the case at bar. While at a gas station Mr. Stephens began ranting to the attendant about his mother, sister, and King Henry VIII. When advised the police were going to be called he ripped the license plate off of his car and then took all his clothes off. He redressed and then ran into the street and stopped a car and then back to his own car where he again stripped.
[9] Mr. Stephens now seeks to have the convictions of July 20, 2009 before Stead J. set aside on the basis that he was NCR when those incidents occurred in 2009.
[10] Mr. Stephens has been a resident of the Regional Mental Health Care in St. Thomas since the incident of February 26, 2011. At that time he was diagnosed with Psychosis NOS. His current treating psychiatrist, in a report dated January 10, 2013, suggests he is suffering from Schizoaffective Disorder and Personality Disorder with Anti-social and Narcisstic Traits and he is mentally incapable within the meaning of Section 6 of the SDM Act 1992 to appreciate the Complex Legal Process that he was involved in at the time that report was written. I am not sure what complex legal process he was involved in at that time.
[11] Although the Appellant has not formally brought a fresh evidence application, it appears that he seeks to have the court consider fresh evidence on this appeal, specifically a letter, dated November 15th, 2013, from Dr. N.L. Desjardins, a treating psychiatrist at the Forensic Treatment Unit South in the Southwest Centre for Forensic Mental Health Care. The doctor was not called to give evidence before me.
[12] Dr. Desjardins letter documents some of the history of the Appellant’s contact with law enforcement. None of the underlying source documents relied upon are attached to the letter, nor are they quoted in their entirety. The doctor indicates that Mr. Stephens has had a remarkable amount of contact with the Brantford Police but gives no detail as to when other than quoting from 3 incident reports prior to the guilty plea in question. All of those incidents related to the couples marital difficulties.
[13] On April 21, 2010 Mr. Stephens was assessed at the request of his school board by Dr. Gabora, a psychologist, who diagnosed an adjustment disorder and Narcissistic Personality Disorder. She did not find any evidence of thought disorder or psychosis. It is noted that another psychological assessment around the same time came to a similar conclusion.
[14] Dr. Desjardins points out in her report that there was a great deal of evidence that at the time of the 2011 offence he was floridly psychotic with delusional thinking, disorganized thought processes and impulsivity. There appears to be no such evidence regarding the matter currently before this court in 2009.
[15] Dr. Desjardins expresses the opinion that “there exists a reasonable probability that Mr. Stephens would have met the criteria for a section 16 defence of Not Criminally Responsible” for offences that occurred before the May 10th, 2011 offence. Dr. Desjardins wrote that it is possible that the Appellant’s “mood was also elevated” at the time of offences committed in 2008 and 2009. The letter also makes reference to the Appellant having delusional beliefs in relation to a person named Heather Consorti, who had no involvement in the offences at issue in this appeal. Dr. Desjardins’ letter makes no reference to the facts acknowledged at the guilty plea proceedings and how any of those acknowledged facts support a finding of not criminally responsible.
Analysis:
[16] Although no formal application to introduce fresh evidence has been filed, Dr. Desjardins’ letter can only be introduced on this appeal if an application to admit fresh evidence is granted. The test governing the admission of fresh evidence on appeal was set out by the Supreme Court of Canada in Regina v. Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.), and was summarized by the Ontario Court of Appeal in the following terms:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
Regina v. Pietrangelo, 2008 ONCA 449 at paragraph 44
[12] The Crown concedes (2) and (3) of the Palmer test have been met, but not (1) and (4).
[13] Regarding Part (1) of the test, the Appellant was represented by counsel at his guilty plea. There is no evidence from counsel about whether the possibility of an NCR verdict was considered. There is an allegation in the Appellant’s materials that certain prior police occurrences were not provided to his counsel. There is no evidence from his counsel that those documents were not provided. Given that the Appellant was in pre-trial custody for 21 days before his guilty plea and given that he was represented by counsel, disclosure would go directly to counsel. Therefore, the Appellant’s unsworn claim that material was not provided is insufficient to show that the material was not provided. Evidence from trial counsel is required and none has been presented by the Appellant. It is also significant that counsel made it clear to the learned trial judge that there was no evidence of any medical or mental issues. I therefore conclude that part (1) of the Palmer test has not been met by Mr. Stephens. If there was evidence similar to what Dr. Desjardins has opined in her letter of November 15, 2013, in 2009, it was capable of being produced at that time with due diligence.
[17] Regarding Part (4) of the test, the onus is on the Appellant to show that, if believed, the evidence, in combination with the other evidence presented, could reasonably be expected to have affected the result. Put simply, that means that the evidence provides “a basis upon which the trial judge could be satisfied on a balance of probabilities” that the Appellant was not criminally responsible.
Regina v. Ross, 2009 ONCA 149 at paragraph 29
[15] The Respondent submits that the letter from Dr. Desjardins is not evidence that could reasonably be expected to have affected the result. I agree.
[16] It must be remembered that the decision as to whether a person is not criminally responsible as defined in s. 16 of the Criminal Code is a legal decision, not a psychiatric one. Therefore, a psychiatrist’s claim that someone is not criminally responsible is not sufficient to establish that the legal test is met.
[17] The letter makes reference to only a “reasonable probability” that the Appellant was not criminally responsible at the time of these offences based on a “strong possibility” that sometime before 2011 the Appellant experienced “mood elevation”. It lacks any reference to any evidence surrounding the offences that points to “mood elevation” such that s. 16 would be engaged.
[18] Most importantly, in my view, the letter makes no reference to the evidence put before Stead J. and acknowledged by the Appellant. There is nothing linking any of the admitted behaviour to the Appellant’s mental illness. On their face, there is nothing particularly odd about the allegations – they can simply be attributed to the Appellant being angry during the course of a marital breakdown, something that is a common occurrence and not necessarily attributable to mental illness. Further, nothing in the letter addresses the telephone call to Children’s Aid wherein the Appellant recognizes that there are restrictions on what he can do, but as long as he’s not in violation of those restrictions, the police cannot take any action against him. There is also no reference to his claim that he doesn’t care what police do, which is an acknowledgement that he knows his actions are potentially against the law. This evidence would tend to show that the Appellant knew right from wrong and it has not been addressed by the psychiatrist. Finally, there is nothing in the letter about the allegations themselves, the surrounding conduct, statements made in court or statements made upon arrest that suggest the Appellant was not criminally responsible in relation to these offences. This is of course in stark contrast to the facts surrounding the incident in 2011 in which he was found to be NCR.
[19] I therefore conclude that part (4) of the Palmer test has not been satisfied by Mr. Stephens. The evidence of Dr. Desjardins as presented in her letter of November 15, 2013 would not have changed the outcome of the 2009 trial before Stead J. if believed when one considers all of the evidence at that time before the court.
[20] Should I be in error as to whether the letter should be admitted as fresh evidence on this appeal pursuant to the Palmer test, I would conclude, obviously having read the opinion of the Doctor, that for the reasons already given, I would not grant the appeal. I am not persuaded that the opinion is remotely sufficient to justify a new trial on the issue of NCR given all of the facts in the record before me.
[21] The onus is on Mr. Stephens to show that the evidence before Stead J. was sufficient that he could prove on a balance of probabilities that at the time in 2009 he suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts or knowing that they were wrong. The section presumes Mr. Stephens did not suffer from such a mental disorder. I conclude that the record before Stead J. makes it abundantly clear that Mr. Stephens would not cross such a threshold in 2009.
Conclusion:
[21] The application to introduce fresh evidence on this appeal is dismissed. The appeal is dismissed.
ARRELL, J.
Released: January 24, 2014
COURT FILE NO.: CR-13-85-AP
DATE: 2014/01/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
WILLIAM RUSSELL STEPHENS
Appellant
REASONS FOR JUDGMENT
ARRELL, J.
Released: January 24, 2014