Court File and Parties

Court File No.: 221/15 Date: 20160805 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Appellant – and – Daniel Grant, Respondent

Counsel: Mark Moorecroft, appearing for the appellant Daniel Grant, appearing in person Alvin Schieck, appearing as amicus curiae

Heard: July 22, 2015

On appeal from the acquittal entered by Justice R. L. Graydon, of the Ontario Court of Justice, dated August 21, 2015.

Before: Bale J.

Introduction

[1] This appeal raises an issue in relation to the appropriate disposition, by a trial judge, where there is evidence of mental disorder, but the defence of not criminally responsible on account of mental disorder (NCRMD) has not been pleaded.

[2] The respondent was acquitted on a charge of assault with a weapon. The charge arose from an incident which took place at the home of the accused’s mother and stepfather, where he resided at the time.

[3] At trial, the respondent’s stepfather, John Byers, gave the following evidence. Early in the morning on the date of the offence, he heard a disturbance, and went downstairs to find the kitchen in a bit of a mess. He opened the back door, and stepped outside. The respondent, who was outside the back door, lunged at him with a steak knife, but did not come in contact with him. The two then stood and looked at each other, until the respondent walked away. Mr. Byers described the scene as follows:

He’s mumbling, he’s grumbling. He’s trying to talk which he could not do. He was slobbering down his chin like he was having an epileptic fit of some description. I couldn’t really say what he was having, but it was a fit of some des – sort. And he grumbled away there for about two minutes. I still didn’t move. I had my fists folded down at my side. He looks down at me after he quit mumbling. All I – all I heard him – any word I got out of him was “You”, addressing myself. “You”. And that’s - I couldn’t – there’s other language I couldn’t make out at all. And so he looked at me for a little bit, and he seen I had my fist folded so I – I didn’t move. I just stood there, and then he put the knife back in his jacket, and he mumbled something else. I said, “Oh, yeah”. At that point, he turned and walked away back down across the yard.

[4] In his evidence, Mr. Byers said that he didn’t think that the respondent knew what was taking place in his own mind, that he was drooling like a mad dog, that he suffers from “anxiety and bi-polar and anorexic”, and hadn’t been taking his medication.

[5] The respondent did not testify or otherwise participate in the trial.

[6] Based upon the complainant’s evidence, the trial judge came to the following conclusions, and acquitted the respondent:

I find as a fact that this is what happened. That on the day in question, not taking his medication, Mr. Grant suffered something like an epileptic fit; a disturbance of the mind, that leaves me with a doubt that he had the general intent to assault Mr. Byers. I have a doubt that Daniel Grant was aware that he was performing the act of pulling the knife out and foaming like a mad dog with it in his hand in the presence of Mr. Byers who stood there, hand on the door, looking at him, fist clenched, but still not doing anything.

[7] The Crown argues that the trial judge committed two errors of law:

• that in concluding that the respondent was suffering from a disturbance of the mind, and did not intend to assault the complainant, the trial judge erred in relying upon the opinion of a lay witness as to the respondent’s mental condition at the time of the alleged offence; and
• that the trial judge erred in finding a lack of the requisite intent to commit the offence, based upon a finding that the respondent lacked the mental capacity to form the intent, at the time of the alleged offence.

The Appeal Proceedings

[8] On the first day of the appeal hearing, with the consent of the Crown, I ordered an assessment of the mental condition of the respondent, pursuant to sections 672.11 and 672.12 of the Criminal Code. I did so because I found that there were reasonable grounds to believe that such evidence was necessary to determine whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal liability, pursuant to subsection 16(1) of the Code. The respondent, who was unrepresented, stated that he did not oppose the assessment order – his only question was whether the assessor would be male or female.

[9] The assessment was conducted by Mark Pearce, a forensic psychiatrist at Ontario Shores Centre for Mental Health Sciences. Dr. Pearce’s opinion is that the respondent suffers from schizophrenia, and that as a result of his illness, he was unable to turn his mind to how others would view the wrongfulness of his actions, was deprived of rational perception, and was unable to exercise rational choice about whether to commit the act in question or not. This diagnosis would support a defence of NCRMD.

[10] Following completion of the assessment, the appeal again came before me for hearing. Prior to the commencement of the hearing, court staff made arrangements for the respondent to consult with Alvin Schieck, who happened to be in the courthouse, on an ad hoc duty counsel basis. Mr. Schieck has a wealth of experience in relation to issues of mental capacity, and at my request, he consented to an order appointing him as counsel for the respondent, pursuant to section 684 of the Code. In order to allow Mr. Schieck time to obtain instructions and undertake the necessary preparation, the appeal was again adjourned.

[11] On July 22, 2016, the appeal again came before me. At that time, Mr. Schieck advised that he had been unable to obtain instructions from the respondent, and at his request, I removed him as counsel of record, and appointed him as amicus curiae, in which role he was of invaluable assistance. The appeal then proceeded, and after hearing argument, I allowed the appeal, set aside the verdict of acquittal, and ordered a new trial. My reasons for doing so follow.

Legal Principles

[12] An accused may raise a defence of NCRMD at any time during the trial, and may, if he or she chooses not to do so earlier, raise the issue of mental disorder after the trier of fact has concluded that he or she is guilty of the offence charged, but before a conviction is entered: R. v. Swain, [1991] 1 S.C.R. 933, at para. 71.

[13] Unless the accused raises a defence of NCRMD, or leads evidence which tends to put his or her mental capacity in issue, the court must consider whether the accused is otherwise guilty or not, before considering the accused’s mental condition. It is only after a finding that the essential elements of the offence have otherwise been proved beyond a reasonable doubt that the court may embark upon a consideration of the accused’s mental condition: Swain, at para. 71.

[14] There are only two instances in which the Crown is entitled to lead evidence of mental disorder. First, the Crown may lead evidence of mental disorder after the trier of fact has concluded that the accused is otherwise guilty of the offence charged. Second, the Crown may lead evidence of mental disorder if the accused’s own defence has (in the opinion of the trial judge) put the accused’s capacity to form criminal intent in issue: Swain at para. 72.

[15] Where the evidence led by the Crown to prove the essential elements of an offence includes, by way of narrative, evidence of the accused’s mental condition, the evidence may not be considered as evidence of that condition, unless and until the issue of his or her mental condition is raised, in accordance with the principles set out in Swain: R. v. Taylor (1991), 4 O.R. (3d) 477 (C.A.), at para. 11.

[16] Where the accused’s mental condition has been put in issue, the court must consider the defence of mental disorder under subsection 16(1) of the Criminal Code, before considering the evidence of his or her mental condition with respect to mens rea. It should also be noted that the mental condition of an accused has only been allowed to negate the mens rea of an offence in cases where the accused denies either the element of planning and deliberation, or the specific intent for murder, and seeks to be found guilty of a lesser and included offence (i.e. second degree murder or manslaughter): R. v. Chaulk (1990), 62 C.C.C. (3d) 193 (S.C.C.), at p. 210; Swain, at para. 71.

Application of Legal Principles

[17] The position of the Crown at trial was that any evidence of the respondent’s mental condition aside, the essential elements of the offence had been proved, beyond a reasonable doubt, and that there should be an assessment of the mental condition of the respondent, pursuant to sections 672.11 and 672.12 of the Criminal Code. I agree with that position.

[18] In using the evidence of Mr. Byers to find that the respondent lacked the necessary intent to commit the offence, the trial judge erred in failing to first determine whether the Crown had otherwise proved the essential elements of the offence beyond a reasonable doubt, and he further erred in considering evidence of the respondent’s mental condition in relation to proof of mens rea, rather than conducting a hearing to determine whether the respondent was, at the time of the commission of the alleged offence, suffering from mental disorder so as to be exempt from criminal liability.

Disposition

[19] Under subsection 686(1) of the Criminal Code, on an appeal from conviction, an appellate court may substitute a verdict of not criminally responsible on account of mental disorder. However, on an appeal from an acquittal, the substitution of an NCRMD verdict is not an available disposition. Under subsection 686(4) of the Code, on a successful appeal from an acquittal, the only available dispositions are an order for a new trial, or if the original verdict was not returned by a jury, the substitution of a conviction. In this case, the appropriate disposition is an order for a new trial.

[20] For the reasons given, I allowed the appeal, set aside the verdict of acquittal, and ordered a new trial.

“Bale J.”

Released: August 5, 2016

Reasons for Judgment

Court File No.: 221/15 Date: 20160805 Ontario Superior Court of Justice Her Majesty the Queen – and – Daniel Grant

Reasons for Judgment Bale J. Released: August 5, 2016