CITATION: R. v. Dezhnev, 2015 ONSC 2110

COURT FILE NO.: 78/13

DATE: 20150401

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VLADIMIR DEZHNEV

Megan Petrie, for the Crown, Respondent

Vladimir Dezhnev on his own behalf, Appellant

HEARD: January 13, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT on summary conviction appeal

[1] Mr. Dezhnev has an unfortunate history of mental illness. An incident on the subway in Toronto in April 2009 resulted in charges of assault causing bodily harm. On July 6, 2009 Mr. Dezhnev, with the assistance of counsel, entered a plea of not guilty before Mr. Justice Taylor of the Ontario Court of Justice. Mr. Dezhnev, through his counsel, did not contest the facts. He was remanded for a Not Criminally Responsible assessment. The assessing psychiatrist stated in his report that he was in no doubt that Mr. Dezhnev had a major mental illness. On consent, Taylor J. made a finding of NCR on February 11, 2011. Mr. Dezhnev was released but then failed to appear for a series of Ontario Review Board hearings. He eventually turned himself in. The ORB found that he presented a significant threat to public safety. Mr. Dezhnev has remained at CAMH, the Centre for Addiction and Mental Health, ever since.

[2] Mr. Dezhnev says that at the time of the trial his mind was addled and unclear and he did not have a memory of the events. He says that now his mind is clear and he does remember. He now argues that had he understood the consequences of a finding of NCR he would never have agreed and would have simply entered his plea of guilty and done his time. He says now, some four years later, that his counsel failed to properly explain the consequences of a finding of NCR. He also says that the trial judge failed to conduct a plea inquiry; as well, that the trial judge erred in making a finding of NCR. He says that there has been a miscarriage of justice. He says that the plea should be struck and he should be permitted to enter a plea of guilty.

[3] For the reasons that follow, I disagree. What really occurred was that Mr. Dezhnev consented to an NCR finding because he thought it would be to his advantage. Now he has discovered that it might not have been so advantageous after all. He wants to re-write history. Although I agree that the trial judge erred in not conducting a plea inquiry, I find that there was no miscarriage of justice. The appeal is dismissed.

FACTS:

[4] On April 11, 2009 Mr. Dezhnev was on the subway in Toronto. He began approaching female passengers “in an alarming manner.” One of the passengers activated the alarm. A transit supervisor attended. The transit supervisor told Mr. Dezhnev to leave the subway. Mr. Dezhnev did so, but then, without warning or provocation, punched the supervisor and fled. The transit supervisor apprehended him. Police arrived and arrested him under the Mental Health Act. He was taken to hospital for an assessment. He was released after 10 days. The police, who did not know that he was being released, arrested him on May 7, 2009. Mr. Dezhnev was charged with assault causing bodily harm. The supervisor suffered a detached retina. He required two surgeries to regain sight in his eye.

[5] On July 6, 2010 Mr. Dezhnev was arraigned before Justice Taylor. He pleaded not guilty. The facts were read in. Mr. Morabito, Mr. Dezhnev’s counsel, did not contest the facts and a finding of guilt was made. On consent, Mr. Dezhnev was remanded for a psychiatric assessment. The trial judge did not conduct a plea inquiry.

[6] Dr. McDonald of CAMH conducted the psychiatric assessment. He issued a report dated November 23, 2010. He reviewed Mr. Dezhnev’s psychiatric and personal history in detail. He noted that Mr. Dezhnev engaged in self-mutilation, heard voices in his head, engaged in unprovoked aggressive action, and admitted that he feared he might seriously injure someone. This was Dr. McDonald’s opinion:

This young man has chronic schizophrenia, aggravated by poly-substance use, predominantly the regular use of marijuana. His condition is not that of a drug-induced psychosis. He regularly experiences auditory hallucinations and is at times overtly delusional. At the time of the index offense, he was paranoid and felt that the victim was a serious threat to him, thus he reacted with violence. He would have done so convinced in his own disorganized way that he was merely defending himself. I have no doubt that he qualifies for a finding of non-criminal responsibility by reason of his major mental illness.

[7] The trial continued before Taylor J. on February 11, 2011. Crown counsel and Mr. Morabito agreed that Dr. McDonald’s report could be filed as an exhibit without the necessity of calling Dr. McDonald. Taylor J. made a finding of NCR.

[8] Where a court makes a finding of NCR one of two things can happen. The court may make a disposition hearing of its own motion or at the request of the prosecutor or defence lawyer. If no disposition hearing is held, then the second thing that might happen is that the matter is referred to the ORB. The ORB must make a disposition: see s. 672.45 and s. 672.47 of the Criminal Code.

[9] What happened in this case is that Taylor J. did not make a disposition. The matter was referred to the ORB. Mr. Dezhnev’s bail remained in force but he was ordered to attend before the ORB as directed. Mr. Dezhnev did not appear on at least three occasions and a warrant was finally issued for his arrest. Mr. Morabito acted for him before the ORB.

[10] Mr. Dezhnev eventually learned of the warrant. He turned himself in to the police on December 20, 2011. A disposition hearing was subsequently held. On January 27, 2012 the ORB determined that Mr. Dezhnev posed a threat to public safety and ordered him detained at CAMH. Subsequent annual hearings have confirmed that disposition.

ISSUES

[11] There are three issues on this appeal:

(a) Did the trial judge err in not conducting a plea inquiry?

(b) Was Mr. Dezhnev’s trial counsel ineffective?

(c) Did the trial judge err in making a finding of Not Criminally Responsible?

ANALYSIS

(a) Did the trial judge err in not conducting a plea inquiry?

[12] Mr. Dezhnev argues that the proceedings at trial were the functional equivalent of a guilty plea. As a result, the trial judge was obliged to make a guilty plea inquiry: R. v. D.M.G., 2011 ONCA 343, 105 O.R. (3d) 481.See also: R. v. Loi, 2013 ONSC 1202, [2013] O.J. No. 779.

[13] In D.M.G. the accused was a 62 year old man with no criminal record. He was accused of sexual offences involving a young complainant. He had adamantly maintained his innocence. In court, defence counsel stated that his client would plead not guilty but would not contest the Crown’s allegations. The trial judge did not make a plea inquiry. The accused was found guilty.

[14] Watt J.A. noted that a plea of guilty must be unequivocal, informed, and voluntary. Subsection 606(1.1) of the Criminal Code requires that a trial judge be satisfied that the plea is voluntary and informed. An accused person must understand that he or she is admitting the essential elements of the offence, and that the judge is not bound by an agreement between counsel: D.M.G. at para. 42.

[15] The proceedings in D.M.G. were the “functional equivalent” of a guilty plea because the accused’s conviction was a certainty. There was an obligation on the trial judge to determine whether the accused understood the procedure and voluntarily participated in it: D.M.G. at para. 60. The failure to conduct a plea inquiry was an error by the trial judge.

[16] In Loi the accused was one of a group charged with robbing a massage parlour. After the Crown had called its case, the defence counsel collectively held a meeting. They decided that it was in the collective best interests of their clients to admit the essential elements of at least some of the charges. Although there was no formal change of plea, there was no inquiry by the trial judge as to whether Mr. Loi actually understood the process and the consequences of the concession. On appeal, K. Campbell J. decided that what had occurred was the functional equivalent of a guilty plea. He found that the trial judge erred by failing to conduct a plea inquiry.

[17] In the case of Mr. Dezhnev, the trial judge did not conduct a plea inquiry. The proceedings were perfunctory, in the sense that the trial judge simply accepted the process that had been agreed to by the Crown and defence counsel.

[18] It may be understandable that a trial judge might not feel the need to inquire too deeply where, as here, both counsel were experienced and capable, and defense counsel (about whom more will be said, below) was especially experienced in matters of mental health. Furthermore, the real question before the court was the NCR issue. Indeed, it was almost inevitable that there would be a finding of NCR given that Mr. Dezhnev had no memory of the events.

[19] That said, the role of a trial judge is not just to rubber stamp submissions. That is so even where there is a joint submission from experienced counsel. The trial judge is the ultimate gatekeeper. There are other gatekeepers in the system, such as Crown counsel, but nothing can replace the trial judge in that role. It is the ultimate responsibility of the trial judge to ensure that the proceedings are fair, that the public has confidence in the administration of justice, and that miscarriages of justice are prevented. Guilty pleas in our system are commonplace and critical to the functioning of the system. That does not, however, mean that simply because they are routine, that they are not important. Guilty pleas are also capable of great mischief, as demonstrated in D.M.G. This is why the plea inquiry is so important.

[20] In my respectful view, the trial judge erred by not conducting a plea inquiry. The proceedings were going to result in either a conviction or a finding of NCR. An acquittal was not on the table. The proceedings were the functional equivalent of a guilty plea. Given that there were no fitness issues raised, it was incumbent on the trial judge to inquire as to whether Mr. Dezhnev understood the consequences of a finding of NCR.

[21] That, however, does not end the matter. The failure to conduct a plea inquiry is not necessarily fatal. The real question is whether the failure led to a miscarriage of justice. That was the real question in D.M.G. and Loi. In those cases an examination of the fresh evidence was required in order to evaluate all of the circumstances.

[22] In Mr. Dezhnev’s case, the same type of examination must take place. This, in turn, requires a determination of whether Mr. Dezhnev’s trial counsel was ineffective.

(b) Was Mr. Dezhnev’s trial counsel ineffective?

[23] Mr. Dezhnev says that Mr. Morabito was ineffective because he did not fully explain the consequences of the finding of NCR to him. The decision not to contest the facts and to consent to the NCR finding was based on incompetence by counsel, he says. This incompetence led to the plea proceedings. There was a miscarriage of justice, he says in effect, because had the trial judge conducted a plea inquiry, it would have shown that the plea was not an informed one.

[24] I disagree. A claim of ineffective assistance of counsel will only succeed on appeal where the appellant can establish:

• The facts on which the claim of incompetence is based;

• That the representation provided by trial counsel was incompetent; and,

• That the incompetent representation resulted in a miscarriage of justice.

[25] See: R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35, [1995] O.J. No. 2883 (C.A.) at para. 69

[26] Mr. Dezhnev relies on facts set out in a fresh evidence application. The application was granted on consent. The fresh evidence included affidavits from Mr. Dezhnev, an affidavit from Mr. Morabito, and the transcript of the cross-examination of Mr. Dezhnev on his affidavit. Crown counsel, Ms. Petrie, also provided a record of subsequent dispositions by the ORB.

[27] Ordinarily, an appellate court should approach an incompetence of counsel question by resolving first whether there has been a miscarriage of justice. Given that there was an error by the trial judge during the plea proceedings, the questions of incompetence of counsel and miscarriage of justice are intimately bound up. It is necessary to determine whether the plea was unequivocal, informed, and voluntary. In order to do so, the entire record must be examined.

[28] Doherty J.A. examined this question in great detail in Joanisse. He noted that there are two types of incompetence that could result in an unreliable verdict. One type occurs where defence counsel is in a conflict of interest such that he or she represents competing interests at trial. The other occurs where counsel’s performance is so deficient that his or her assistance is rendered ineffective. Doherty J.A. adopted the language of O’Connor J. of the United States Supreme Court in Strickland v. Washington, 366 U.S. 668, 104 S.Ct. 2052 (1984):

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

[29] Doherty J.A. interpreted this comment as follows at para. 80 in Joanisse:

I take Justice O'Connor to mean that the appellant must show that, had he received competent legal representation, there is a real probability that the appellant would not have been convicted of murder. A reasonable probability lies somewhere between a mere possibility and a likelihood. A reasonable probability is established when the reviewing court is satisfied that because of counsel's incompetence, the verdict cannot be taken as a reliable assessment of the appellant's culpability.

[30] See also: R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 at para. 28.

[31] I turn to Mr. Morabito’s representation of Mr. Dezhnev.

[32] There is a very strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Appellate courts must show deference to professional decisions, recognizing a presumption in favour of competence: Joanisse at para. 72. An appellate court should not second-guess the tactical decisions of trial counsel.

[33] Mr. Dezhnev stated in his affidavit that at the time he had discussions with Mr. Morabito, his ability to make decisions and think was impaired by drugs. He admitted that his memory was poor. In his first affidavit he alleged that Mr. Morabito did not fully explain the consequences of an NCR finding. He stated that he agreed with an NCR disposition on the basis that he would become eligible for Ontario Disability Support Program benefits. He said that Mr. Morabito had told him he would become eligible. Mr. Morabito denied this in his affidavit. In his second affidavit Mr. Dezhnev agreed that, in fact, Mr. Morabito had not told him that he was eligible for ODSP benefits.

[34] Mr. Morabito, in his affidavit, indicated that he did fully explain the consequences of a finding of NCR. He and Mr. Dezhnev both agree in their affidavits that Mr. Dezhnev gave verbal instructions to Mr. Morabito to pursue an NCR finding. Mr. Morabito stated in his affidavit that he did not usually take instructions in writing, and in this case he did not do so because he was satisfied that Mr. Dezhnev understood the consequences of the NCR finding.

[35] Although it is always difficult to assess credibility based on a written record, in this case I find that the fresh evidence does not reveal anything like the kind of incompetence that would be required to set aside the NCR finding. On the contrary, the record reveals that Mr. Morabito was engaged, careful, and professional. Mr. Morabito stated that Mr. Dezhnev told him that he had no memory of the offence. Mr. Dezhnev agrees that he told this to Mr. Morabito. He now wishes to change his plea to guilty because, as he puts it, his memory is now clear because he is not taking drugs.

[36] I accept Mr. Morabito’s version of events. I reject Mr. Dezhnev’s allegation that Mr. Morabito failed to explain the consequences of a finding of NCR to him. Mr. Dezhnev’s version is not believable for at least two reasons:

• His evidence as between the two affidavits and his cross-examination kept changing. Indeed, Mr. Dezhnev, in his cross-examination, significantly backtracked from his earlier most serious allegations.

• Mr. Dezhnev stated in cross-examination that he had lied to Dr. McDonald about hearing voices and other psychotic behaviour because he wanted an NCR finding, thinking it would be more favourable for him.

[37] Turning back to the question of whether a miscarriage of justice has occurred, I answer the question in this way: there is no question that what actually would have been incompetent, and would have resulted in a miscarriage of justice, is if Mr. Morabito had advised Mr. Dezhnev to plead guilty. If Mr. Dezhnev had no memory of the offences, he could not have agreed to the facts that would have made out the essential elements. A plea of guilty under those circumstances would not have been unequivocal, informed, and voluntary.

[38] At the time of trial, had the trial judge conducted a plea inquiry, he would have satisfied himself that Mr. Dezhnev was aware of the consequences of a finding of NCR. I am therefore confident from the fresh evidence that a guilty plea inquiry would have yielded exactly the same result. I seriously doubt that Mr. Dezhnev would have said anything other than this: that his counsel explained the consequences of a finding of NCR, and that his participation in the process and the result was voluntary and unequivocal.

[39] The reality of what happened was this Mr. Dezhnev simply thought that an NCR finding would be better for him than a finding of guilt. He now regrets that the ORB has jurisdiction over him. The ORB has found, in a series of dispositions, that he represents a danger to the public and that it is unsafe to release him. He now wants to undo his plea so he can be removed from the jurisdiction of the ORB. The only way for him to accomplish this is by way of a finding that the original guilty plea was not valid. Hence his unjustified attack on Mr. Morabito.

[40] Thus, there was no real probability that the verdict would have been different without the ineffective assistance of counsel – both because counsel was not ineffective and because the error by the trial judge was inconsequential. There was no miscarriage of justice.

(c) Did the trial judge err in making a finding of Not Criminally Responsible?

[41] Section 16(1) of the Criminal Code states that:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

[42] Section 2 of the Criminal Code states that:

“mental disorder” means a disease of the mind.

[43] What constitutes “a disease of the mind?” In R. v. Cooper, 1979 63 (SCC), [1980] 1 S.C.R. 1149 Dickson J. described the concept:

… in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.

[44] Doherty J.A. set out the test for setting aside a finding of NCR on appeal in R. v. Fraser (1997), 1997 6315 (ON CA), 33 O.R. (3d) 161 (C.A.) at para. 19:

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.

[45] In my view, the record provided ample evidence upon which Taylor J. could have found Mr. Dezhnev NCR. Dr. McDonald assessed Mr. Dezhnev for the index offence. His conclusion was unequivocal: that Mr. Dezhnev suffered from a major mental illness and was not criminally responsible.

[46] Mr. Dezhnev points to two alternative psychiatric assessments as supporting his contention that Taylor J. erred in finding him NCR. I disagree with Mr. Dezhnev. These alternative assessments do not assist him.

[47] Mr. Dezhnev first relies on a report by Dr. Steven Cohen as an “alternative possibility” to a schizophrenia diagnosis. Dr. Cohen assessed Mr. Dezhnev’s fitness to stand trial for the index offences of theft under and possession of property obtained by crime (offences unrelated to this appeal). Mr. Dezhnev was admitted to Mental Health Centre Penetanguishene on March 24, 2010 for a thirty day assessment. Mr. Dezhnev had stolen some items and ate some food at a Zeller’s store on March 13, 2010 He was arrested as he tried to leave the Zeller’s without paying. Dr. Cohen found that Mr. Dezhnev was fit to stand trial, but he also cautioned:

It must be stated that Mr. Dezhnev may suffer from a major mental illness. It is common for symptoms to fluctuate in any individual owing to such a diagnosis and may concurrently lead to a fluctuation in Mr. Dezhnev’s fitness to stand trial.

[48] Dr. Cohen’s diagnosis simply does not assist Mr. Dezhnev. Dr. Cohen was assessing whether Mr. Dezhnev was fit to stand trial for a different index offence. He was not assessing whether Mr. Dezhnev was NCR for that or any other index offence. Furthermore, Dr. Cohen felt compelled to point out that Mr. Dezhnev might have been suffering from a major mental illness.

[49] Mr. Dezhnev also points to a course of in-patient treatment at North York General Hospital in February 2010. Dr. Gelber apparently diagnosed Mr. Dezhnev with drug-induced psychosis. In my view, this also does not assist Mr. Dezhnev. That was a 7-day stay and did not include a full court-ordered 30-day assessment. Dr. McDonald strongly disagreed with the diagnosis of drug-induced psychosis. In any event, it is hard to see how the finding of drug-induced psychosis by a psychiatrist in February 2010 after a short hospital stay could be construed to undermine an opinion in March 2010 that Mr. Dezhnev might be suffering from a major mental illness, and a further opinion (after a full assessment) in November 2010 that he did, in fact, suffer from a major mental illness. There was certainly a reasonable basis for the NCR finding.

DISPOSITION

[50] The appeal is dismissed.

R.F. Goldstein J.

Released: April 1, 2015

CITATION: R. v. Dezhnev, 2015 ONSC 2110

COURT FILE NO.: 78/13

DATE: 20150401

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VLADIMIR DEZHNEV

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

R.F. Goldstein J.