ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-08-AP
DATE: 20150810

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

PETER THEODOROPOULOS
Appellant

D. Kasko, for the Respondent Crown

P. Copeland, for the Appellant

HEARD: July 15, 2015

On Appeal from the Verdict of Not Criminally Responsible on Account of Mental Disorder of the Honourable Justice J.D. Evans dated April 23, 2015

VALLEE J.

Nature of the Appeal

[1] The appellant appeals the verdict of not criminally responsible on account of mental disorder (NCRMD) made on April 23, 2013 by J.D. Evans J. on three grounds: (1) the trial judge failed to conduct an adequate inquiry of the appellant’s understanding of the nature and consequences of the proceedings; (2) the appellant’s formal pleas were qualified by a statement that he was not guilty of the intention. These pleas are not known to law; (3) the trial judge erred by finding the appellant guilty in the absence of an admission from the appellant that he intended his utterances to be taken seriously.

Issues

1. Did the trial judge conduct an adequate plea inquiry as to whether the appellant understood the nature and consequences of his pleas?

2. Did the appellant enter pleas not known to the law?

3. Did the trial judge err by finding the appellant guilty in the absence of an admission that he had intended his utterances to be taken seriously?

4. Was the verdict of NCRMD unreasonable?

Applicable Law

[2] Section 606(1.1) of the Criminal Code provides that a court may accept a guilty plea only if it is satisfied that the accused is making the plea voluntarily and understands:

(1) that the plea is an admission of the essential elements of the offence;

(2) the nature of the consequences of the plea; and,

(3) that the court is not bound by any agreement made between the accused and the prosecutor.

The inquiry is mandatory, although the failure to fully inquire into whether these conditions are met does not in itself invalidate the plea. Where guilty plea proceedings involve an application by the Crown to have an accused person found NCRMD, an inquiry is required to ensure that the accused person understands the consequences of an NCRMD finding (see R.v. Williams, [2012] ONCA 695, [2012] O.J. No. 4859 at paras. 31 and 33 and R.v. P.(A.), [2011] ONCA 673, [2011] O.J. No. 4779 at para. 8).

[3] Section 606(1) of the Criminal Code provides, “an accused who is called upon to plead may plead guilty or not guilty or the special pleas authorized by this part and no others.” Section 606(2) provides that, “where an accused person refuses to plead or does not answer directly, the court must order that a plea of not guilty be entered.” (see R. v. D.M.G., 2011 ONCA 343, [2011] ONCA 343, 275 C.C.C. (3d) 295 at paras. 39 and 43)

[4] A guilty plea is a formal admission of guilt by which an accused person waives both his or her right to require the Crown to prove its case beyond a reasonable doubt and the related procedural safeguards. To constitute a valid guilty plea, the plea must be voluntary, unequivocal and informed by an awareness of the nature of the allegations and the effect and consequences of the plea. (see R.v. T.(R), [2010] O.R. (3d) 514 (C.A.))

[5] A subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder as long as he retained the capacity to know that it was regarded as wrong based on societal standards. (See R.v. Campione, [2015] ONCA 67 at para. 31)

[6] In determining whether a verdict is unreasonable, the court must determine on the whole of the evidence adduced at trial, whether the verdict is one that a trier of fact, acting judicially, could reasonably have rendered. While this determination requires the court to re-examine and to some extent re-weigh the evidence, this court may not substitute its view for that of the presiding justice. The Supreme Court of Canada has confirmed the limits of review of a verdict by an appeal court. The fact that an appeal court may have doubts about the verdict or that it may have been reasonable for the trier of fact to reach a different conclusion is insufficient to justify the conclusion that the verdict is unreasonable. (see R.v. Ybes, [1987] 2 S.C.R. 168, R.v. Biniaris, 2000 SCC 15 and R.v. A.G., 2000 SCC 17)

[7] An appellant must demonstrate that a trier of fact acting reasonably and properly applying the law could not have arrived at the finding of NCRMD. 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. (see R. v. Fraser (1997), 33 O.R. (3d) 161 (Ont. C.A.) para. 19)

Did the trial judge conduct an adequate plea inquiry?

[8] On August 30, 2012, the appellant was charged with four counts of uttering death threats, two counts of criminal harassment and one count of breach of a probation order. On September 4, 2012, an order was made remanding him for admission to a psychiatric facility. On November 13, 2012, the appellant was found unfit to stand trial and was remanded to Waypoint Center for Mental Health. He was found fit to stand trial on March 4, 2013 and a stay fit order was imposed.

[9] On March 6, 2013, the appellant was released from custody on a recognizance of bail with his mother acting as surety. Under the terms of his recognizance, he was required to remain in his mother’s residence unless he was in the company of his mother or his brother. On March 19, 2013 the appellant’s bail was varied to permit him to leave his residence for a one hour walk between 1:00 p.m. and 2:00 p.m. daily.

[10] On April 23, 2013, the appellant appeared in the Ontario Court of Justice. The appellant was assisted by duty counsel, Mr. Northcott. An excerpt from the transcript is set out below.

MR. CARLTON: I believe we’re in a position to deal with the matter of Mr. Theodoropoulos. Lines 109 to 115, and the Crown is seeking to have Mr. Theodoropoulos arraigned on Counts 1, 2 and 3. Three counts of threatening, by electronic means, or via an electronic device.

THE COURT: Mr. Northcott, you’re appearing as a duty counsel?

MR. NORTHCOTT: I am, and I can indicate today it is an informed plea; however, Mr. Theodoropoulos tends to go back and forth, so I think it’s better if we put this on the record to make sure that Mr. Theodoropoulos understands the consequences of pleading guilty. I’m prepared to go through the plea with him if you’d like.

THE COURT: Yes.

MR. NORTHCOTT: On the record. So, Mr. Theodoropoulos, knowing – This is a voluntary plea, right?

PETER THEODOROPOULOS: Yes.

MR. NORTHCOTT: And no one has forced you to give your plea today?

PETER THEODOROPOULOS: I fear with my harassment charges added on to my own illness and like….

THE COURT: So, let’s just deal with the charges, sir, that you’ve indicated that you wish to enter a plea of guilty to.

PETER THEODOROPOULOS: Yeah, my fear of implications and consequences, and, of course, I have to be self-interested in self-preserving, but I did a lot of wrong things when I was sick, and I said a lot of wrong things, and I apologize for it.

THE COURT: Yeah.

PETER THEODOROPOULOS: And this is my way of coming to Court and pleading the guilt so that it doesn’t fall on somebody else.

MR. NORTHCOTT: So, you’re admitting to the guilt….

PETER THEODOROPOULOS: Oh, yeah. I – When I wrote it, I never intended for it to be taken literally.

THE COURT: Okay.

PETER THEODOROPOULOS: I had all these devices in place that I would usually – would disqualify from – And I’m sorry about that.

THE COURT: Okay. So, Peter, I want you just to listen to me for a second.

PETER THEODOROPOULOS: Yes, sir.

THE COURT: You’re entering your plea voluntarily?

PETER THEODOROPOULOS: Yes.

THE COURT: You understand that sentencing is up to the Court?

PETER THEODOROPOULOS: Yes, sir.

THE COURT: And you understand that by entering a plea of guilty, you’re giving up a right to a trial?

PETER THEODOROPOULOS: Yeah.

THE COURT: Correct? All right. Just come forward then, Peter, and just stand behind Mr. Northcott.

MR. CARLTON: I think, Your Honour, I think – Sorry to add to that, but I think so that it’s crystal clear to Mr. Theodoropoulos that it’s the Crown’s intention, should he be found guilty by this Court, to then seek an order under section 16 of the Code that Mr. Theodoropoulos, at the time, was not criminally responsible for these offences by the reason of mental disorder, and I will be making that application should the Court find him guilty of these offences.

MR. NORTHCOTT: And I explained that to Mr. Theodoropoulos, and he was agreeable, and I explained that to – based on his doctor’s – Dr. Pallandi had made those recommendations in terms of if he did – if he was found non-criminally responsible, he believes that there will be a liberal disposition under the circumstances, and I explained to Mr. Theodoropoulos, if he was agreeable to the NCR, he needs to consent to that, and he was agreeable to be under the jurisdiction of the ORB given the circumstances.

PETER THEODOROPOULOS: I believe it’s better than going to jail, which is a possible threat, and I think it’s also given because I was – My dad, when he was sick, he was shouting out thousands of times a day. It made me so incoherent to myself, and then when I had a number of other factors, which were impossible for me to accept, I acted like an irrational child and immaturely responded with great vehemence against being – It’s so ironic, against being considered for uttering threats when I was correcting my sister’s language, I was given a conditional discharge, and I – So, then I pursued it. Like, I pursued uttering threats, which is just – I just can’t even imagine now. Like, now that I look back on it. The last year, I haven’t been, at all, like myself.

THE COURT: Are you on medications now, Peter?

PETER THEODOROPOULOS: I’m medicated now.

THE COURT: Okay. All right. Well, let me hear the facts….

PETER THEODOROPOULOS: Yeah.

THE COURT: ….and we’ll go from there. Okay? Thank you.

MR. CARLTON: On Counts 1, 2 and 3, please.

COURTROOM CLERK: Peter Theodoropoulos, you stand charged on or about the 22nd day of August, 2012, at the Town of Bracebridge and elsewhere in the province in the Central-East Region, Count 1, did by electronic device knowingly utter a threat of death or bodily harm to members of Ontario government, contrary to section 264.1(1) (a) of the Criminal Code. How is the Crown electing to proceed on these charges?

MR. CARLTON: Can I just double – I know that’s a replacement information. I just want to see when it was sworn to. Summarily, please.

COURTROOM CLERK: To this charge, sir, how do you plead? Guilty or not guilty?

PETER THEODOROPOULOS: Guilty.

COURTROOM CLERK: Count 2, you stand further charged, on or about the 22nd day of August, 2012 at the Town of Bracebridge or elsewhere in the province in the said region, did by electronic device, knowingly utter a threat of death or bodily harm to senior administrators of Nipissing University, contrary to section 264.1(1) (a) of the Criminal Code. The Crown is electing to proceed summarily, and, to this charge, sir, how do you plead, guilty or not guilty?

PETER THEODOROPOULOS: With all the charges, guilty, but, like, not of intention. Not of guilty intention.

COURTROOM CLERK: Thank you. Count 3, you stand further charged on or about the 22nd day of August, 2012 at the Town of Bracebridge or elsewhere in the Province in the said region did, by electronic device, knowingly utter a threat of death or bodily harm to senior administrators of the University of Toronto, contrary to section 264.1(1) (a) of the Criminal Code. The Crown has elected to proceed summarily. And to this charge, sir, how do you plead, guilty or not guilty?

PETER THEODOROPOULOS: Guilty, of the acts as raised, not of intention.

THE COURT: Just have a seat, Peter, and listen to the facts as they’re read in.

MR. CARLTON: Yes, Your Honour. The facts are these. Mr. Theodoropoulos resides in Bracebridge. He has been residing with his – at his mother’s residence in Bracebridge. You will note that two of the charges deal with universities, one, the University of Toronto, the second, Nipissing University. I understand in the fall of 2011, he had been enrolled in classes at the University of Toronto. There were some issues and incidents, I’ll call them, on campus, and on November 24th, 2011, the security department at the University of Toronto served Mr. Theodoropoulos with a trespass notice telling he was not allowed on university property. To move forward then to May 4th of last year, where Mr. Theodoropoulos enrolled in classes at Nipissing University, again there were incidents within the classroom and on university property that led to him being advised on 16th of July, 2012, that he was served a notice of trespass, in fact, by a local OPP officer. Subsequent to that, Mr. Theodoropoulos began sending a number of emails to administrators at Nipissing University. They were not threatening. They were, I suppose, taken note of, but they did not – certainly did not make any threats to any parties associated with the university or anyone else. The matter before the Court consists of one email, sent – I’ll file it as an exhibit in just a moment. The address list is almost two full pages, often with two or three email addresses per line. So, a large number of people received the email. It was sent by Peter Theodoropoulos, the Crown alleges, using a hotmail account on August 22nd at 5:10 in the morning. The email itself is about seven pages long. It appears to end at one point and then – because it’s signed by Mr. Theodoropoulos and then goes on for a further, roughly, two pages, a little longer than two pages. Within that email, the Crown is alleging that threats are made to members of the Ontario government to senior administrators of Nipissing University and senior administrators of the University of Toronto. I propose – What I have is a copy of the email. By one of the parties, one of the administrators at Nipissing University who received it, who then forwarded that to the police, and so I propose to file the email itself that contains the threats as an exhibit on the plea. The…

THE COURT: Exhibit 1.

MR. CARLTON: You will see, just in the email addresses, that it’s sent to high ranking government officials and elected officials, both in the United States, the Government of Canada and to the Province of Ontario, as well as numerous people at various educational institutions, including both Nipissing University and University of Toronto. The – Dealing with – My page numbering is slightly different from the Court’s, but roughly about a page and a half in, you will see comments made about the premier, and then just below that, there are comments made about students at Nipissing University and University of Toronto.

PETER THEODOROPOULOS: May I have an opportunity to comment?

THE COURT: Are you referring to the paragraph that starts, “I will have you killed if you step out of line?”

MR. CARLTON: Yes, that’s the most liberal threat, and that relates to two universities.

THE COURT: All right, thank you.

MR. CARLTON: I’ll just perhaps add to that, Your Honour, certainly, the Crown’s alleging that this email contains threats, and the threats were meant to be taken seriously, and therefore, the offence is made out. It’s certainly clear that there were – There are a number of circumstances discussed in the email. There’s no evidence that Mr. Theodoropoulos had the means to carry out them in the manner that’s described in the email. The email itself is – was taken seriously, particularly so by the Nipissing University. They contacted police on the 22nd of August, having received the email at 5:10 that morning, and subsequent to that, Mr. Theodoropoulos was arrested. He was arrested, I believe on the 29th of August, and we may discuss this in more detail in terms of sentencing, but there was a long process between August 29th and March 6th when he was released. So, he effectively spent six months in custody, albeit most of that time at – in a mental health facility. There was an assessment under the Mental Health Act. There was then an assessment for fitness under the Criminal Code. Ultimately, Mr. Theodoropoulos was found unfit. That was reviewed by the Ontario Review Board, who found Mr. Theodoropoulos fit and referred it back to this Court – Sorry, they recommended that he was fit. They set it back to this Court for the Court to reassess the issue of fitness, and that issue was tried again, and Mr. Theodoropoulos was found fit. At the same time that that was proceeding, when the matter had come back here from the Review Board – Ill file with you in a moment, but there was a report dealing both with fitness and with the issue of not a criminal responsibility, and its that report of Dr. Pallandi that, once weve dealt with the issue of findings, that Ill be referring to. That`s some of the history since the 29th of August.

THE COURT: Thank you.

MR. NORTHCOTT: Mr. Theodoropoulos, those facts are substantially correct?

PETER THEODOROPOULOS: The one issue is….

MR. NORTHCOTT: But the facts, in general, are substantially correct?

PETER THEODOROPOULOS: Except for the point that the reason that I was threatening people – The reason that I was threatening people is I perceived this as the only way that it could fall into other jurisdictions internationally. My protest was initially over genetic modified foods, and I had a delusion where I thought a hundred million people or more would die.

THE COURT: Other than that, though, are the facts substantially correct?

PETER THEODOROPOULOS: Sustainably they’re correct, but I had the perception that this was dangerous, and that if I didn’t make as much noise as possible – the uttering threats was irrelevant. I thought people were going to die.

THE COURT: Right. But as to the facts as they relate to you actually making the threats, are they correct?

PETER THEODOROPOULOS: I was not serious at all with any of it.

THE COURT: That’s not what I’m asking. Did you make the threats?

PETER THEODOROPOULOS: Oh, I wrote everything there.

THE COURT: I’m accepting your pleas of guilty then, and I find you guilty with respect to each of the offences.

The Appellant’s Position

[11] The appellant states that the plea inquiry conducted was inadequate because it failed to ensure the appellant understood the consequences of proceeding with an NCRMD finding. The trial judge did not ensure that the appellant understood that if he were placed under the jurisdiction of the Ontario Review Board (ORB) he could be detained indefinitely in a hospital. The record supports a reasonable interpretation that the consequences would be limited to supervision in the community.

[12] Doctor Pallandi, a psychiatrist at Waypoint Centre for Mental Health Care stated,

Given his improved cooperation and ongoing compliance with treatment, I am of the opinion that a relatively liberal disposition would serve the dual purposes of rehabilitating Mr. Theodoropoulos and protecting the safety needs of the public. It is likely that a minimum secure disposition would serve these purposes adequately and that such a disposition could in fact include privileges up to and including residence in the community in approved housing.

[13] The appellant states that duty counsel who represented Mr. Theodoropoulos commented on “the position the Crown is offering…based on the report of Dr. Pallandi and his recommendations, I think is adequate.”

[14] The appellant states that duty counsel further referred to these conditions that he had explained to the appellant which were basically that he had to report to his doctor and that certain medications might be required. At this time, the appellant was living in the community under conditions that included that he contact Dr. Pallandi and continue counselling with him if so directed.

[15] The appellant also states that he was not required to step into custody and remained living in the community until his first ORB hearing. He states that his exchange with the trial judge after disposition shows that he was not aware of the duration of the order that he was agreeing to.

[16] The appellant also submits that the plea inquiry was insufficient because it failed to ensure that he understood that a guilty plea required an admission to both the physical and essential mental elements of the offence of uttering threats. Even though an inadequate plea inquiry does not necessarily invalidate a plea, the appellant states that the inadequacy of the inquiry is a relevant factor that ought to be considered in determining whether on the totality of the record, the appellant’s pleas were unequivocal and informed as to the consequences.

The Crown’s Position

[17] The Crown states that the procedure followed in the circumstances of this case did not cause a miscarriage of justice as it did not compromise fairness of the hearing or contribute to any unreliable findings of guilt. The appellant clearly admitted the mens rea of the offence, that he intentionally wrote the words appearing in the email and the actus reus of the offence, that he sent it to the recipients.

Analysis

[18] Initially, the appellant was found unfit to stand trial. He was admitted to Waypoint where he received treatment. Prior to his attendance before the trial judge, the appellant had been released from custody on a recognizance of bail. He had been living with his mother who was his surety. He was permitted to go for a one hour walk each day. He had been living at his mother’s residence for approximately 7 weeks.

[19] Before the plea inquiry took place, duty counsel indicated to the trial judge that the appellant was “going back and forth” regarding the plea. In the plea inquiry, the trial judge asked the appellant whether he was entering his plea voluntarily, whether he understood that sentencing was up to the court and whether he understood that by entering a plea of guilty, he was giving up his right to a trial. The appellant answered yes to these questions. After the plea inquiry, the Crown stated that he would be making an application for an order under s. 16 of the Criminal Code that the appellant was not criminally responsible for the offences by reason of a mental disorder.

[20] The appellant’s physician at Waypoint, Dr. Pallandi, wrote a report which was before the court. The appellant was aware of the reports contents. The transcript reflects the fact that duty counsel had reviewed Dr. Pallandi’s comments with the appellant, specifically Dr. Pallandi’s remarks that a minimum secure disposition would serve the purposes of rehabilitation and protecting the public. He stated that such a disposition could be achieved by the appellant’s residence in the community in approved housing.

[21] It is clear that duty counsel stated to the court, “Dr. Pallandi had made those recommendations in terms of if he did – if he was found non-criminally responsible, he believes that there will be a liberal disposition under the circumstances and I explained to Mr. Theodoropoulos, if he was agreeable to the NCR, he needs to consent to that, and he was agreeable to be under the jurisdiction of the ORB given the circumstances.”

[22] I find that the appellant entered his pleas and did not oppose the Crown’s application for a finding of NCRMD because he reasonably understood that, “given the circumstances,” he would be subject to a minimum secure disposition such as residing in the community in approved housing. He did not understand, nor was it explained to him, that a consequence of an NCRMD finding could be involuntary admission to Waypoint for over 2 years. This was in fact what occurred.

[23] As noted above, in R. v. Williams, the court stated that where a guilty plea involves an application by the Crown to have an accused person found NCRMD, an inquiry is required to ensure that the accused person understands the consequences of an NCRMD finding.

[24] Based on the record before me, I find that the plea inquiry was inadequate because it did not ensure that the appellant understood the consequences of an NCRMD finding.

Did the Appellant enter irregular pleas which ought not to have been accepted?

The Appellant’s Position

[25] The appellant submits that when he was asked for his plea on each of the three counts, he gave the following responses:

1. “Guilty”

2. “With all the charges guilty but like not of intention. Not guilty of intention.”

3. “Guilty of the acts as raised, not of intention.”

[26] The appellant states that these were not permissible pleas under s. 606(1). Even though the first response could technically constitute a valid plea, that plea was immediately qualified by his second response. A plea of “guilty but not of intention” is not known to law and should not have been treated as a plea of guilty.

[27] The appellant states that the trial judge ought to have advised the appellant that the available pleas were “guilty” and “not guilty” and that a guilty plea required an admission to both the physical and mental elements of the offence. In the absence of the entry of a valid plea, the trial judge was required to order that not guilty pleas be recorded. The appellant further states that because he did not enter valid pleas of guilty, the findings of guilt should be set aside.

[28] The appellant states that his pleas were equivocal. Even though he was prepared to admit the physical act of sending the email which gave rise to the charges, he did not admit the mental element as alleged by the Crown, that is to say that he intended the threats be taken seriously. In his responses, not guilty of intention, he was denying the mental element of the charges. During the plea inquiry, the appellant states that he commented, “when I wrote it, I never intended for it to be taken literally.” He further stated, “I was not serious at all with any of it.” Nevertheless, he did acknowledge the physical element of the offence when he stated, “oh, I wrote everything there.”

[29] The appellant also states that in certain sections of the email in issue, he made various statements which showed that he did not intend the email to be taken seriously. He made references to irony and satire. He stated in one location, “you have my word to god, I will never bring people harm.” In another location, he stated that he was just kidding.

[30] The appellant submits that his plea was equivocal and that it did not constitute an admission of the mental element of the charges. The trial judge’s inquiries did not resolve this issue. Accordingly, the appellant states that the findings of guilt should be set aside.

The Crown’s Position

[31] The Crown states that although the pleas also contained, “not guilty of intention”, these comments were in mitigation of sentence. The Crown states that the appellant, “telegraphed to the presiding justice that although his words were intended to instil fear in the recipients, he never intended to carry out the threatened acts.”

Analysis

[32] On the first count, the appellant pleaded “guilty.” On the second count, he pleaded, “with all the charges guilty but like not o intention. Not guilty of intention.” On the third count, he pleaded, “guilty of the acts raised, not of intention.”

[33] Section 606(1) of the Criminal Code states that an accused may plead guilty or not guilty. Accordingly, a guilty plea must be unequivocal. The appellant qualified all of his pleas by stating that he was not guilty of intention. It appears that he was not admitting the mental element of the offence. The Crown submits that the accused’s qualifications of his pleas were comments made in mitigation of sentence. That may have been the case; however, the trial judge ought to have explained to the appellant that he could plead only guilty or not guilty. He should not have accepted a plea that was qualified by other language.

[34] I find that the appellant entered irregular pleas which should not have been accepted.

Did the trial judge err by finding the appellant guilty in the absence of an admission from the appellant that he intended his utterances to be taken seriously?

The Appellant’s Position

[35] The appellant states that the trial judge erred in finding him guilty because his pleas were qualified. He was not silent as to intention. He stated clearly that he was not guilty of intention. This was a denial, obviously the opposite of an admission.

The Crown’s Position

[36] The Crown states that the appellant’s assertion that he had no intention to carry out the threatened acts is irrelevant to a determination as to whether the offence is made out. It is irrelevant to determining if a conviction can be maintained.

[37] The Crown states that the mens rea of the offence of uttering a threat requires an intention that the threat be taken seriously so as to frighten or intimidate the recipient. A plain reading of the words written and delivered by the appellant clearly indicates that the appellant intended that the threats be taken seriously so as to frightened or intimidate the recipients. The trial judge’s finding guilt on the admitted facts is reasonable. The errors alleged by the appellant do not meet the threshold for a miscarriage of justice.

[38] The Crown further states that the procedure followed did not cause a miscarriage of justice. It did not compromise fairness of the hearing nor did it contribute to any unreliable findings of guilt. The appellant clearly admitted the mens rea of the offence that he intentionally wrote the words that appeared in the email. He also clearly admitted the actus reus of the offence in that he sent the email to the recipients.

Analysis

[39] After the plea inquiry, duty counsel asked the appellant, “So you’re admitting to the guilt…” The appellant responded, “Oh, yeah, I – When I wrote it, I never intended for it to be taken literally.”

[40] After the facts were read, the trial judge asked the appellant whether they were substantially correct. The appellant stated that he “wrote everything there” but that he “was not serious at all with any of it.”

[41] I agree with the Crown that the mens rea of the offence of uttering a threat requires an intention that the threat be taken seriously so as to frighten or intimidate the recipient.

[42] I do not agree with the Crown’s submission that the trial judge’s finding of guilt on the admitted facts is reasonable. As noted above, the appellant did not unequivocally admit that the facts were substantially correct. He was clear that he never intended for the threat to be taken literally. He stated that he was not serious at all with any of it. Accordingly, I find that the trial judge erred in finding the appellant guilty. Not only was there no admission of intention, there was a specific denial of intention.

Was the verdict of NCRMD unreasonable?

Appellant’s Position

[43] The appellant submits that the verdict of NCRMD was unreasonable. Even though there was evidence before the trial judge capable of supporting a conclusion that the appellant’s conduct was affected by a disturbance of his psychological functioning, the appellant submits that Dr. Pallandi’s opinion is incapable of meeting the requirements of s. 16 of the Criminal Code.

[44] The appellant states that the defence of NCRMD is available to an accused person when the evidence, on the balance of probabilities, satisfies the court that the accused person was not capable of appreciating the nature and quality of the act or omission underlying the offence or of knowing that it was wrong. Wrong means more than simply legally wrong. The defence can be raised where an individual is incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society.

[45] Nevertheless, the defence of NCRMD cannot apply where a mental disorder affects an individual’s subjective belief that his or her conduct was justifiable or impairs the accused persons’ ability to exercise the judgment of a normal person.

[46] The accused states that Dr. Pallandi did not suggest that the appellant’s mental disorder rendered him incapable of understanding that uttering death threats was contrary to formal law. His opinion also did not suggest that the appellant was unaware that uttering death threats was contrary to ordinary morals of society. Instead, the opinion only suggests that the appellant, as a result of his mental disorder, felt justified in acting as he did.

[47] The appellant states that in the absence of an opinion that he was incapable of knowing the acts were legally wrong or contrary to ordinary moral standards of society, the verdict of NCRMD cannot stands.

The Crown’s Position

[48] The Crown reads Dr. Pallandi’s report from a different perspective. The Crown states that the report provides ample evidence upon which the trial judge could have found the appellant not criminally responsible. Dr. Pallandi stated in his report that not only did the appellant “suffer from a mental disorder but that he was symptomatic of it at the material time and this directly and materially impacted on his psychological function to such degree as to render him unable to know the wrongfulness of his actions in a legal or moral sense. In other words, on a delusional foundation, he felt morally and legally justified in issuing the email and threatening others, as he did.”

[49] The Crown states that the appellant has not suggested that the trial judge erred in his statement of the law. The appellant contends only that the NCRMD verdict was unreasonable and was unsupported by the evidence. The Crown states that the burden is on the appellant to 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. The test is that if the evidence provided a reasonable basis for a finding on a 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. (see R.v. Fraser p. 167)

[50] The Crown states that the exchange between the court and the appellant (p. 14, line 19 - p. 15, line 27 of the transcript) clearly supports a finding that the appellant did not understand that the threats made by him were morally wrong or legally wrong at the time he wrote the email.

[51] The Crown submits that Dr. Pallandi’s opinion was that the appellant was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of the act committed by him or knowing that it was morally wrong. Dr. Pallandi stated:

I am of the opinion that not only does he suffer from a mental disorder but that he was symptomatic of it at the material time and this directly and materially impacted on his psychological function to such a degree as to render him unable to know the wrongfulness of his actions in a legal or moral sense. In other words, on a delusional foundation he felt morally and legally justified in issuing email and threatening others as he did.

[52] The Crown states that the trial judge’s verdict of NCRMD was reasonable based on the evidence before him.

Analysis

[53] It is unnecessary for me to consider the language of Dr. Pallandi’s report and whether it was sufficient to show that the appellant was incapable of knowing the act was right or wrong or contrary to moral standards of society. The Crown can only raise the issue of mental disorder after the trial judge has concluded that a defendant was otherwise guilty of the offence charged. As noted above, I have found that the trial judge erred in finding the appellant guilty. Accordingly, the verdict of NCRMD was unreasonable.

Conclusion

[54] The appeal is allowed. This matter is remitted to the Ontario Court of Justice for a new trial. The Crown may wish to consider whether it is in the interests of justice to continue the prosecution, given all of the circumstances.

Vallee J.

Released: August 10, 2015