CITATION: Her Majesty the Queen v. Laming, 2017 ONSC 7047
COURT FILE NO.: CR-633-00AP
DATE: 2017/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Cameron Laming
Appellant
John R. O’Halloran for the Respondent
Robert F. Goddard for the Appellant
HEARD: October 3, 2017
JUSTICE S. GOMERY
[1] Cameron Laming appeals Justice K.E.M. Moore’s verdict on charges that he had threatened his stepfather Robert Hunt on June 2, 2015 and, in so doing, breached a probation order under the Youth Criminal Justice Act. At the time, Mr. Laming was 19 years old. He threatened to kill Mr. Hunt, a taxi-driver, after he refused to give him a lift to a local medical centre. On July 14, 2015, Justice Moore found that Mr. Laming was not criminally responsible by reason of a mental disorder (or NCRMD) for making the threats, and ordered his transfer to the Brockville Mental Health Centre.
[2] Although Mr. Laming agreed with the NCRMD verdict at the time, he has since changed his mind. The verdict was based on an opinion by Dr. Jonathan Gray, a psychiatrist. In Dr. Gray’s opinion, Mr. Laming had schizophrenia which caused him to have psychotic episodes. Dr. Gray believed that Mr. Laming was in the grips of such an episode on June 2. As a result, he mistakenly believed that his stepfather was abusing his mother, and threatened him in order to protect her. In these circumstances, Dr. Gray did not think that Mr. Laming was capable of appreciating that his actions were wrong.
[3] In December 2016, Mr. Laming obtained an opinion from another psychiatrist, Dr. Helen Ward. Dr. Ward concludes that Mr. Laming never had schizophrenia but rather a bipolar disorder. In her view, he was not in a psychotic state when he threatened his stepfather on June 2, 2015 but, if he was, this psychosis was caused by his use of cocaine and cannabis a day or two before. Dr. Ward concludes that Mr. Laming knew that threatening his father was wrong, and that his actions were not caused by his mental illness.
[4] Mr. Laming is asking the court to admit Dr. Ward’s report as new evidence, to set aside the NCRMD verdict and to direct a new trial. For the reasons that follow, I am granting Mr. Laming’s motion to admit new evidence, setting aside the verdict, entering a conviction and imposing a sentence of one day.
(a) What was the basis for the NCRMD verdict?
[5] After Mr. Laming was charged with threatening his stepfather, Justice Moore ordered his assessment at the Royal Ottawa Mental Health Centre in Brockville, Ontario. Mr. Laming’s lawyer requested the order, and the Crown consented to it. Mr. Laming himself confirmed to the judge that he agreed to a psychiatric assessment.
[6] Dr. Gray performed the court-ordered assessment and produced a report on July 9, 2015. Based on the transcript of the July 14, 2015 hearing, this report was the only evidence before the judge when she reached the NCRMD verdict. The report was based on Dr. Gray’s review of Mr. Laming’s medical records, his interviews with Mr. Laming, and information obtained from a social worker, the police and Mr. Laming’s probation officer.
[7] Mr. Laming began having mental health issues in 2012, when he was 16 years old. He was admitted to hospital on September 20, 2012 after hearing voices and trying to commit suicide. Over the next few years, Mr. Laming sometimes had paranoid beliefs and fixations. He was hospitalized involuntarily for psychiatric treatment in July 2013, January 2014 and April 2015. During his 6-week admission in early 2014, he tried to strangle another patient. He was charged under the Youth Criminal Justice Act and discharged on with a probation order requiring him to keep the peace. This was the order he was charged with violating on June 2, 2015.
[8] Between his first admission in September 2012 and June 2015, Mr. Laming was assessed by at least seven psychiatrists. He was prescribed antipsychotic drugs. Sometimes he took them and sometimes he did not. Beginning at age 13 or14, he also smoked cannabis and consumed other drugs, including cocaine, on a regular basis. Some of the psychiatrists who assessed Mr. Laming thought that he had schizophrenia or a related disorder. Others linked his aggressive episodes to his drug use.
[9] In Dr. Gray’s view, Mr. Laming was having a psychotic episode on June 2, 2015 when he threatened to kill his stepfather. Two weeks after the incident, Mr. Laming told Dr. Bradford, another psychiatrist, that on that day he became convinced that his stepfather was abusing his mother sexually and physically. Mr. Laming told Dr. Bradford that did not understand why he had believed on June 2 that that his stepfather was abusing his mother, because he knew that it was not true.
[10] Dr. Gray was of the view that Mr. Laming had schizophrenia, and that this disorder caused a psychosis on June 2, 2015. Dr. Gray acknowledged that Mr. Laming had also used cannabis and cocaine a day or two before threatening his stepfather. In his view, the drugs may have worsened Mr. Laming’s delusions but did not cause them. He concluded that Mr. Laming incapable of appreciating the wrongness of his actions when he threatened his stepfather.
[11] On July 14, 2015, based on Dr. Gray’s report, Justice Moore ruled that Mr. Laming was not criminally responsible for the acts giving rise to the charges. As a result, she transferred him to the Brockville Mental Health Centre so that his case could be considered by the Ontario Review Board.
[12] Although the Crown opposes the admission of Dr. Gray’s report into evidence, it agreed that the court should review the Board’s January 23, 2017 decision on Mr. Laming. The Board had directed Mr. Laming to remain in the Brockville Mental Health Centre in a secure unit on September 14, 2015. On January 23, 2017, the Board ruled that Mr. Laming remained a significant threat to the safety of the public and transferred him to a secure psychiatric facility in Kingston.
(b) What does Dr. Ward’s report say?
[13] Dr. Ward assessed Mr. Laming in late 2016. She interviewed him twice. She reviewed Dr. Gray’s report as well as Mr. Laming’s medical and hospital records prior to July 2015.
[14] Dr. Ward also reviewed Mr. Laming’s medical history since July 2015. He refused to take antipsychotic medications, or any other psychiatric drugs, between December 2015 and October 2016. Despite this, he had no psychotic episodes.
[15] On the basis of this recent history, in her December 8, 2016 report Dr. Ward concludes that Mr. Laming does not have schizophrenia. In her view, it is far more probable that he has a bipolar 1 disorder, because “in a drug-free environment he remained stable for 10 months without medications, then became manic (without apparent psychosis) and is reportedly responding quite well to Lithium”.[^1]
[16] In light of this diagnosis, Dr. Ward thinks that Mr. Laming’s drug use was the main cause of his past episodes of psychosis. She is not even convinced that he was psychotic when he threatened his stepfather on June 2, 2015; he was on antipsychotic medication at the time, none of the three psychiatrists who examined him on June 2 or 3 found any psychosis, and that he had no further episodes of psychosis while remaining on the same medication at the Centre. She thinks that the more likely explanation for his behaviour was anger and frustration with his stepfather over his demands for rent, “and because he was irritable and short-tempered as a result of his substance abuse”.[^2] If Mr. Laming was delusional about his stepfather, the delusions were caused by his drug use and not his mental illness.
(c) Should Dr. Ward’s report be admitted into evidence on the appeal?
[17] The parties also agreed to provide the court with a December 20, 2016 report by Mr. Laming’s current treating psychiatrists, Dr. Corona and Dr. Booth. Like Dr. Ward, they think that he has a bipolar disorder rather than schizophrenia, and note that he has good results with “a proper diagnosis and treatment”. They link recent aggressive episodes to his frustration at being forced to remain in a psychiatric facility based on an earlier misdiagnosis of his condition.
[18] The facts of this case are strikingly similar to those in R. v. Evans.[^3] In that case, Evans was charged with robbery and possession of a dangerous weapon. Like Mr. Laming, he agreed to be assessed and was found NCRMD based on a diagnosis of schizophrenia, poly-substance abuse and an anti-social personality disorder. He remained in a psychiatric facility under the Ontario Review Board for seven years. At that point, he appealed the verdict and applied to introduce new evidence.
[19] As in this case, Evans’ treating psychiatrist concluded, two years after the NCRMD verdict, that he did not have schizophrenia. As in this case, Evans obtained a report from a second psychiatrist, who said that he had been misdiagnosed and was capable of appreciating the wrongness of his actions at time of robbery.
[20] There is however a difference between this case and the facts in Evans. In Evans, the Court of Appeal directed Dr. Komer, the psychiatrist whose assessment formed the basis for the NCRMD verdict, to meet again with Evans and file a fresh report. In this report, Dr. Komer maintained his initial diagnosis. However, when cross-examined on his report, he admitted that Evans was likely in a substance-induced psychosis when he committed the offences.[^4] The Court of Appeal concluded:
In this case, the appellant was found to be NCRMD on the basis that he suffered from schizophrenia. That diagnosis has been ruled out by the appellant’s treatment team. Additionally, Dr. Komer has testified that the “best fit” for the appellant at the time of the offence was a substance-induced psychosis. The respondent concedes that a self-induced substance-induced psychosis would not support an NCRMD finding. In these circumstances, the NCRMD verdict cannot be sustained and should be set aside. It amounts to a miscarriage of justice.[^5]
[21] In this case, we do not know if Dr. Gray, like Dr. Komer, would reconsider his opinion on Mr. Laming’s mental state when he threatened his stepfather in light of new information about his disorder. Apparently as a matter of policy, the Crown’s office refused a request by Mr. Laming’s counsel in January 2017 to share Dr. Ward’s report with Dr. Gray. This decision is regrettable, since it puts this court in a position where it must decide this appeal without all potentially relevant evidence before it.
[22] Crown counsel argues that, for the most part, Dr. Ward is simply providing a different opinion based on the same facts considered by Dr. Gray, and that a second opinion like this is not a proper basis to set aside the NCRMD verdict. He contends that Mr. Laming could have obtained a second psychiatric opinion in July 2015, and that his failure to do so means he cannot ask the court to consider a second opinion. To the extent that Dr. Ward’s opinion is based on new information, Crown counsel argues that she does not completely rule out a diagnosis of schizophrenia because she says that it is “not impossible” that Mr. Laming has this disorder.
[23] I do not find these arguments persuasive.
[24] First of all, Dr. Ward’s opinion on Mr. Laming’s diagnosis is not equivocal. She says that it is “far more probable” that he has a bipolar disorder rather than schizophrenia, and that, in her opinion, his mental disorder is “Bipolar 1 disorder”. Mr. Laming’s treating psychiatrists agree with this diagnosis.
[25] Second, the primary basis for Dr. Ward’s diagnosis, and her opinion about his state on June 2, 2015, is Mr. Laming’s history since the NCRMD verdict. She had the benefit of the “natural experiment” arising from Mr. Laming’s refusal of antipsychotics from December 2015 to October 2016. The elimination of the diagnosis of schizophrenia has an obvious impact on the assessment of Mr. Laming’s state of mind on June 2, 2015. Although it is true that Dr. Ward reviewed the same pre-July 2015 records as Dr. Gray, she has done so with the benefit of more accurate information about his medical condition. Because of this, she cast a more skeptical eye on the evidence of Mr. Laming’s supposed delusion about his stepfather on June 2, 2015.
[26] In his report, Dr. Gray said that Mr. Laming’s behaviour on June 2, 2015 was either caused by his use of drugs or a psychotic state caused by a mental disorder. Having decided that Mr. Laming had schizophrenia, he concluded that this disorder caused Mr. Laming to have a delusion which in turn caused him to threaten his stepfather. He acknowledged that drugs could also be a factor in Mr. Laming’s state of mind, but decided that schizophrenia was the ultimate cause of it.
[27] Mr. Laming’s treating psychiatrists agree with Dr. Ward that he was originally misdiagnosed. He has a bipolar disorder rather than schizophrenia. It follows that Mr. Laming’s actions on June 2 could not have been caused by schizophrenia. The only other explanation considered by Dr. Gray for Mr. Laming’s actions was his use of drugs, the same explanation accepted by Dr. Ward.
[28] In light of this, the Crown’s arguments opposing the admission of Dr. Ward’s report must fail. Both parties agree that the test for admitting new evidence on appeal is set out in R. v. Palmer, [1980] S.C.R. 775. I conclude that Dr. Ward’s report meets this test because:
(1) A proper diagnosis of Mr. Laming’s condition only became possible as a result of his refusal of antipsychotic medication after the NCRMD verdict. The information on which Dr. Ward based her opinion was not available to Dr. Gray, the parties or the court at the time.
(2) Dr. Ward’s opinion bears on the central issue when the judge reached the verdict, that is, Mr. Laming’s capacity to appreciate the wrongness of his actions.
(3) Dr. Ward’s opinion is credible.
(4) If accepted, Dr. Ward’s opinion would call into question the foundation of the NCRMD verdict.
[29] For these reasons, I am granting Mr. Laming’s motion to admit new evidence.
(d) Should the NCRMD verdict be set aside?
[30] In R. v. Guidolin, the Court of Appeal considered an accused’s appeal of an NCRMD verdict.[^6] It held that, while there was no absolute bar preventing such an appeal, the court should “look very closely at any attempts to resile by way of appeal from an NCRMD verdict sought at trial”.[^7] The court should consider whether the verdict was reasonable based on the evidence that was before the judge at the time, as opposed to “the psychiatric and treatment developments that have occurred” between the verdict and the appeal”.
[31] The Crown argues that the NCRMD verdict was reasonable based on the evidence before Justice Moore and that, as a result, Mr. Laming’s appeal should fail.
[32] Had I denied Mr. Laming’s motion to admit new evidence, I might have agreed. In oral argument, however, even Crown counsel conceded that it would be a miscarriage of justice to let the NCRMD order stand if Dr. Gray’s diagnosis was obviously wrong. Based on the new evidence before this court – including both Dr. Ward’s report and the December 2016 report by Mr. Laming’s current treating psychiatrists – I conclude that the diagnosis of schizophrenia, was in fact incorrect. Since this diagnosis was central to Dr. Gray’s opinion, the opinion can no longer support the judge’s finding. As a result, the NCRMD verdict must be set aside as both unsupported by evidence and a miscarriage of justice.
[33] On a successful appeal of an NCRMD verdict under s. 813(a)(iii) of the Criminal Code, the court may direct a judgment or order a new trial.[^8] In this case, Mr. Laming has requested a new trial. In the circumstances, however, I find that a judgment by this court is a more appropriate outcome. There is no doubt that Mr. Laming threatened to kill Mr. Hunt on June 2, 2015, and in so doing committed an offence under s. 264.1(1)(a) of the Code and breached a probation order. His only defense was his state of mind. Since this court has set aside the NCRMD verdict, the only possible outcome of a trial is a conviction.
[34] In both Evans and Guidolin, the Court of Appeal entered a conviction on the underlying charges and fixed a sentence of one day. In both cases, the Court held that the time spent in a psychiatric facility was longer than any sentence that would have been imposed had the accused not been found NRCMD.[^9]
[35] Similarly, in this case, the time that Mr. Laming has spent in a secure psychiatric unit – 28 months – drastically exceeds any sentence he would have received, as a 19 year old with no adult criminal record, on the charges of uttering a threatening and violating a probation order. I would accordingly enter a conviction on these charges and impose a sentence of one day.
[36] During the appeal hearing, Crown counsel expressed concerns about Mr. Laming’s release from a psychiatric facility, given the Review Board’s determination that he might pose a danger to the public. The same concerns were raised in Guidolin. As noted by the Court of Appeal in that case, if Mr. Laming demonstrates that he is a danger to the public because of an active mental illness, he may be subject to involuntary committal under the Mental Health Act.[^10] This does not justify his continued committal based on a verdict which has now been set aside.
Justice S. Gomery
Released: 2017/11/27
CITATION: Her Majesty the Queen v. Laming, 2017 ONSC 7047
COURT FILE NO.: CR-633-00AP
DATE: 2017/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Cameron Laming
Appellant
REASONS FOR JUDGMENT
Justice S. Gomery
Released: 2017/11/27
[^1]: Page 8 of Dr. Ward’s report.
[^2]: Page 9 of Dr. Ward’s report.
[^3]: 2012 ONCA 412.
[^4]: Evans, para. 9.
[^5]: Evans, para. 15.
[^6]: 2011 ONCA 264.
[^7]: Guidolin, para. 11.
[^8]: R.S.C., 1985, c. C-46, section 822(1) read in conjunction with section 686(2).
[^9]: Evans at paras 17 to 19; Guidolin at paras. 33 to 38.
[^10]: R.S.O. 1990, c. M.7.