COURT FILE NO.: CR-15-9622 DATE: 20181203 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ARI DA COSTA Defendant

Counsel: Martin Dionne for the Crown Megan Savard for Mr. Da Costa Dean Embry as Amicus Curiae

HEARD: November 30 and December 3, 2018

RULING ON a defence mistrial application

RESTRICTION ON PUBLICATION Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Boswell J.

Introduction

[1] Ari Da Costa had recently been asked to move out of his family home and into his grandmother’s house in Richmond Hill. That request came from his parents. They were having difficulty dealing with some of his behaviour. He was 20 years old and experiencing some challenges with his mental health.

[2] On December 18, 2015, about mid-morning, Richard Da Costa, Ari’s father, came by his mother’s house to continue with some renovation work he had undertaken. He did not know that his son had been up all night and had twice tried unsuccessfully to kill himself. And he did not know that his son had decided, instead, that he had to kill his father.

[3] Ari Da Costa was in the living room with a hammer hidden under a pillow. His father asked for some help carrying a television set down to the basement. Ari followed his father down the stairs, the hammer secreted under some clothing. His father put the television down and, as his back was turned, Ari struck. And struck. And struck. Richard Da Costa was dead.

[4] Ari Da Costa immediately called 911 and told the operator what he had done. The police arrived. They charged Mr. Da Costa with first degree murder. Later that night, he gave about a two hour statement to DC Minns of the York Region Police Service. He explained, apparently lucidly and cogently, what he had done and why.

[5] Mr. Da Costa’s trial began, before a jury, on June 4, 2018. He chose to commence the trial without counsel. The Crown’s case consisted primarily of Mr. Da Costa’s 911 call and his police statement. It was completed within a few days. At the end of the Crown’s case, Mr. Da Costa advised the court that he wished to assert, by way of defence, that he was not criminally responsible (“NCR”) for his actions at the time his father was killed. He also indicated that he wished to retain counsel for that purpose.

[6] The trial was adjourned to November 13, 2018. The defence case was essentially completed by November 23, 2018. It consisted largely of expert witnesses who opined about Mr. Da Costa’s diagnosis and/or his NCR defence. Even before the defence case concluded, the Crown advised that it intended to call two forensic psychiatrists in reply, as well as one forensic psychologist.

[7] When it came time for the Crown to begin its case in reply, however, Crown counsel advised that the first of its two reply psychiatrists had evidently had an eleventh hour change of view. The Crown no longer intends to call him as part of its case in reply.

[8] In response, defence counsel sought a mistrial on the basis that Mr. Da Costa’s ability to obtain a fair trial is now irreparably compromised.

[9] To appreciate the context in which the mistrial application arose, it is necessary to understand the expert evidence tendered to date.

The Experts

[10] Mr. Da Costa retained counsel shortly after his arrest. His then counsel – with whom he would later part ways – immediately engaged a forensic psychiatrist, Dr. David Glancy, to assess Mr. Da Costa and to prepare a report as to his mental status, with a possible view to an NCR defence.

[11] Dr. Glancy met with Mr. Da Costa on December 23, 2015 and January 19, 2016 and subsequently prepared a report setting out his findings. He diagnosed Mr. Da Costa as suffering from schizophrenia and secondarily as having a substance use disorder. In his opinion, Mr. Da Costa would not have had the capacity to know that killing his father was wrong at the time of the attack.

[12] Dr. Glancy was the first of the defence experts to testify.

[13] A second forensic psychiatrist, Dr. Lisa Ramshaw was subsequently retained by the defence to conduct a psychiatric assessment of Mr. Da Costa. Dr. Ramshaw met with Mr. Da Costa in November 2017. She reviewed voluminous other reports and records relating to him. She authored an assessment report and subsequently testified for the defence. She expressed the opinion that Mr. Da Costa suffers from schizophrenia. She too expressed the view that Mr. Da Costa did not have the capacity to know that his actions were wrong, at the time he killed his father.

[14] Mr. Da Costa has been in custody since his arrest. He spent the first three weeks or so at the Central East Correctional Centre (“CECC”) in Lindsay. He was then transferred to the Ontario Shores Centre for Mental Health Sciences in Whitby where he stayed until March 9, 2016. The purpose of that transfer was so that a court ordered forensic assessment could be undertaken of Mr. Da Costa with respect to the issues of fitness for trial and of criminal responsibility. While at Ontario Shores, Mr. Da Costa was assessed by Dr. Phillip Klassen, who rendered a fitness report dated January 15, 2016 and an NCR report dated June 20, 2016.

[15] Dr. Klassen opined that Mr. Da Costa was fit to stand trial.

[16] Dr. Klassen’s report on criminal responsibility was complicated. He was initially of the view that Mr. Da Costa was suffering from a major mental illness. Indeed, he noted that if Mr. Da Costa were taken at his word, an appropriate diagnosis would be schizophrenia. Dr. Klassen was of the view, however, that Mr. Da Costa was manipulating his self-reporting. He was not prepared to conclude that Mr. Da Costa had a major mental illness. Instead, he expressed the opinion that Mr. Da Costa had borderline personality disorder, substance use disorder and paraphilias. He concluded that Mr. Da Costa was aware of the nature and quality of his acts at the time of the attack. He was not prepared to express the opinion that Mr. Da Costa’s mental health issues rendered him incapable of knowing that his actions were wrong.

[17] For obvious reasons, Dr. Klassen did not testify for the defence. He was, however, scheduled to be the first Crown witness.

[18] Mr. Da Costa was returned to CECC on March 9, 2016. He stayed there until June 17, 2016 when he was transferred to the St. Lawrence Valley Treatment and Correctional Centre in Brockville where he remained until May 9, 2017.

[19] On May 9, 2017 Mr. Da Costa was discharged to the Central North Correctional Centre (“CNCC”) in Penetanguishene. From that date until today’s date he has been moved around a number of times between CNCC, CECC, St. Lawrence Valley, and Toronto South Detention Centre (“TSDC”).

[20] While at St. Lawrence Valley he was under the care of Dr. Bradley Booth, amongst others. While at CNCC he was under the primary care of Dr. Gunter Lorberg.

[21] Dr. Booth was tasked by Justice Kenkel, of the Ontario Court of Justice, with conducting a fitness for trial assessment of Mr. Da Costa in July 2016. He authored a report dated July 27, 2016. In his opinion Mr. Da Costa was fit to stand trial. He diagnosed him, however, with schizo-affective disorder, depressive type, as well as obsessive-compulsive disorder and generalized anxiety. He testified to that effect at the trial on behalf of the defence.

[22] Dr. Lorberg also testified for the defence. He was reluctant to provide a firm diagnosis because Mr. Da Costa had only been under his care for four or five months. His provisional diagnosis, however, was schizo-affective disorder. He would have been prepared to commit firmly to that diagnosis had Mr. Da Costa been in his care for six months or longer.

[23] A second assessment with respect to the issue of criminal responsibility was ordered by the court on October 11, 2016. The second court ordered assessment was completed by Dr. Jeff McMaster. Dr. McMaster’s report, dated March 13, 2017, reflects the complex nature of Mr. Da Costa’s mental status.

[24] Dr. McMaster identified 9 possible disorders in play with Mr. Da Costa, including: substance use disorder, gender dysphoria, paraphilic disorders, borderline personality disorder, adjustment disorder, obsessive-compulsive disorder, generalized anxiety disorder, social anxiety disorder and schizophrenia.

[25] Dr. McMaster was not satisfied that Mr. Da Costa suffers from a psychotic disorder, like schizophrenia, though he clearly suffers from psychiatric diagnoses. He expressed the opinion that Mr. Da Costa appreciated both the nature and consequences of his actions when he attacked his father. He also takes the view that Mr. Da Costa was capable of making alternate choices. He thinks there is no evidence to suggest that Mr. Da Costa’s thinking was disorganized at the relevant time. On balance, he opined that the evidence in favour of criminal responsibility exceeds the evidence in favour of an NCR verdict.

[26] Dr. McMaster has not yet testified, but is expected to be the central witness in the Crown’s case in reply.

The Mistrial Application

[27] On the morning set for the commencement of the Crown’s reply case, Crown counsel advised that Dr. Klassen had indicated to him that his opinion of the case was changing. Dr. Klassen has not prepared an update to his June 20, 2016 report.

[28] Defence counsel asked for a mistrial. She expressed three concerns:

1. She did not know what Dr. Klassen’s revised opinion is, nor why he changed his mind. If he now agrees with the opinions of Drs. Clancy and Ramshaw, his change of opinion would provide a significant boost to the defence case. Although counsel spoke to Dr. Klassen on the phone, he was not able to provide her with an indication as to his revised views;
2. Not knowing what change has occurred with Dr. Klassen, nor why, she will be handicapped in her cross-examination of Dr. McMaster; and,
3. Any adjournment to await a revised report from Dr. Klassen will be impractical and prejudicial. The jury was already put over for four months between the end of the Crown’s case and the beginning of the defence case. The prejudice to the Crown was minimal because the Crown’s case consists almost entirely of the recorded 911 call and police interview of Mr. Da Costa. But a lengthy delay between the end of the defence case and the beginning of the Crown’s reply will be substantially prejudicial to Mr. Da Costa. Moreover, it will be unfair to the jurors who have had their lives interrupted significantly already.

[29] I advised counsel that I was not prepared to render a decision on the mistrial application without a proper evidentiary record in terms of what has happened with Dr. Klassen. In the result, I directed that he attend a voir dire for the purpose of giving evidence about how his opinion has changed and why. That voir dire was conducted this afternoon.

Dr. Klassen’s Evidence

[30] Dr. Klassen testified over the course of about an hour. He indicated that he was one of the first psychiatrists to assess Mr. Da Costa. He saw him at Ontario Shores within a few weeks of his arrest.

[31] There is some benefit to having seen Mr. Da Costa so quickly after the events in issue. Presumably his mental status would not have been altered much by time and events from when the homicide occurred. On the other hand, Dr. Klassen had comparatively little collateral material to review and consider. Unlike the defence psychiatrists, who testified that they had upwards of 20,000 pages of records to review, Dr. Klassen initially had minimal background information. He had some modest records from CECC where Mr. Da Costa was held for several weeks; a synopsis of the offence; some information from North York General Hospital and from McKenzie Health; and some information from the Canadian Mental Health Association.

[32] Dr. Klassen testified that he received a further package of material from the Crown’s office sometime in September 2018. This package consisted of many thousands of pages of material, much of it handwritten notes. While he has made his way through what he suspects are thousands of pages already, he still has many thousands to go, including, crucially, the records of St. Lawrence Valley. He does not anticipate completing his review until mid-January, 2019.

[33] Dr. Klassen noted that he had indicated in his initial report that it would be helpful to have information about Mr. Da Costa’s course after being discharged from Ontario Shores in March 2016. The materials provided to him in September 2018 provide just that type of information.

[34] Dr. Klassen is not yet certain about his diagnosis, but he testified that his opinion has evolved on the basis of the materials he has managed to get through to date. It is apparent to him that Mr. Da Costa has demonstrated a pronounced behavioural disturbance over a long period of time. One of his initial concerns in early 2016 was that Mr. Da Costa was malingering – he was making up or embellishing symptoms. Malingering is difficult to keep up over a long period of time. Dr. Klassen is beginning to believe, it would seem, that Mr. Da Costa’s unreliable self-reporting may have been due to something other than volitional malingering. His prolonged disturbance appears now to be more suggestive of a psychotic disorder than a personality disorder with malingering.

[35] With the benefit of a more fulsome evidentiary record, and the benefit of hindsight, Dr. Klassen believes that some of Mr. Da Costa’s behaviours may be demonstrative of an extended prodrome period of psychosis. He may have been, in early 2016, able to manipulate his disclosure. He may no longer be able to do so given the progression of his disease.

[36] Provisionally, he now believes Mr. Da Costa was, and is, suffering from schizophrenia.

[37] That said, he acknowledged the NCR issue remains complex. He expects he will have to go back and review Mr. Da Costa’s police statement once he is finished reviewing all of the records he has received. Mr. Da Costa appears in that statement to be emotionally neutral. He appears not to be overwhelmed by emotion or symptomatology. There may be instances in the statement where Mr. Da Costa made allusions to psychosis which were not followed up on by the interviewing officer. All of that remains to be seen.

[38] Dr. Klassen agreed, under cross-examination, that he could not at this stage say for certain whether that Mr. Da Costa was suffering from a psychotic disorder at the time of the attack.

The Governing Principles

[39] A mistrial is both a discretionary and profound remedy. It is only to be declared in the clearest of cases: R. v. Arabia, 2008 ONCA 565 at para. 52.

[40] The “clearest case” rule recognizes the extinction-level nature of the remedy. The need to be cautious with the remedy – and to canvass all available reasonable alternatives – is readily understood in a case like this one.

[41] Mr. Da Costa has had a difficult time with the trial process. In turn, his circumstances have made the process all the more difficult. He was self-represented at the outset, which means he conducted his own jury selection. There were challenges with outbursts in the courtroom and there were days when Mr. Da Costa refused to leave his cell or attend court. When the Crown’s case concluded, a four month adjournment was necessitated to accommodate Mr. Da Costa’s choices in terms of his defence.

[42] Eventually, with the assistance of amicus, Mr. Da Costa was able to retain counsel. A process was put in place where Mr. Da Costa has been able to attend the trial through a videolink from the TSDC. This process has almost, but not entirely, eliminated his disruptive outbursts.

[43] The defence has by and large completed their case. Five experts testified for the defence as did a number of lay witnesses, including Mr. Da Costa’s mother.

[44] Anyone can understand the court’s apprehension at the thought of terminating the case and beginning all over at this late stage in the process.

[45] Having said all of that, there may be times – regardless of the stage a case is at – where continuing would be unduly prejudicial to the fair trial right of the accused person. A “clearest case” rule recognizes that mistrials may be necessary in certain circumstances, but it essentially requires a finding that an event has occurred that is so profound, so catastrophic to the fairness of the trial, that it is simply incapable of being cured.

[46] A person accused of a criminal offence in Canada is constitutionally entitled to a fair trial. Not one that is the fairest imaginable. But one that is fundamentally fair. See R. v. O’Connor, [1995] 4 S.C.R. 411, para. 193 and R. v. Find, 2001 SCC 32 at para. 28. Where an event has occurred that compromises the right of the accused to a fundamentally fair trial to such a degree that it cannot be cured by any lesser remedy, a mistrial is to be declared. See R. v. Pires, 2004 BCCA 33, [2004] B.C.J. No. 83 (B.C.C.A.), affirmed (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 (S.C.C.) and R. v. Khan, 2001 SCC 86 at para. 32.

[47] A trial judge is required, before exercising the discretion to declare a mistrial, to consider any corrective measures that have been brought or could be brought to remedy the irregularity in the trial: Khan, as above, at para. 80.

The Parties’ Positions

[48] Ms. Savard continues to rely on the grounds she identified last week as supporting her mistrial application. She asserts that those grounds are bolstered by the evidence given today by Dr. Klassen.

[49] Based on his provisional diagnosis, Dr. Klassen appears to be changing his opinion quite significantly. He now appears ready to opine that Mr. Da Costa suffers from a major mental disorder – schizophrenia. Such an opinion accords with the evidence given to date by Drs. Glancy and Ramshaw.

[50] This is more than just duplicative or cumulative evidence, however. This is a Crown witness who appears to be flipping in his opinion in the middle of the trial. This is powerful exculpatory evidence for the defence.

[51] Moreover, this is evidence that will assist the defence in cross-examining the Crown’s remaining forensic psychiatrist in two ways. First, Dr. McMaster’s report is essentially two years old. It will be of significant value to the defence to be able to put to him that Dr. Klassen changed his views after a review of everything that has gone on in those two years.

[52] Second, a not significant source of background information utilized by Dr. McMaster came from Dr. Klassen. Dr. McMaster had the benefit of Dr. Klassen’s initial opinion and considered it in the course of his assessment. He has not had the benefit of Dr. Klassen’s revised opinion.

[53] Ms. Savard submits that we now know that it will be at least six weeks before Dr. Klassen is finished his review. This will likely necessitate at least a two month adjournment of the trial. Such an adjournment is unduly prejudicial to Mr. Da Costa, she says, because the jury will be unable to recall and appreciate the nuances of the testimony of the defence experts. They will instead have only the Crown’s reply expert’s evidence fresh in their minds.

[54] For the Crown, Mr. Dionne submits that there is no basis to mistry or even delay this proceeding.

[55] He argues that the defence is essentially trying to gild the lilly; looking to pile on more of the same type of expert evidence they already have from Drs. Ramshaw and Glancy. There is no prejudice, the Crown contends, if Mr. Da Costa is unable to call evidence from Dr. Klassen about his changed opinion. If he firms up his opinion that Mr. Da Costa has schizophrenia, then all that does is add one more expert to the list who have already testified as much. Moreover, further helpful evidence on the mental disorder issue does not take Mr. Da Costa far. Dr. Klassen has expressed uncertainty about the second branch of the NCR defence: whether a mental disorder rendered Mr. Da Costa incapable of appreciating the nature and quality of his acts or of knowing they were wrong.

[56] Mr. Dionne is concerned about the precedent that may be set if a trial is adjourned or mistried just because a defendant learns of additional, potentially helpful evidence at some point during the trial. He asked, rhetorically, are jury trials always going to be adjourned when there is a potential for other evidence to be obtained?

Discussion

[57] After much anxious consideration, I am of the view that a mistrial is a necessary, if terribly unfortunate, remedy in the circumstances.

[58] There are two principal drivers to my decision.

[59] First, the “potential” evidence of Dr. Klassen is not just a hypothetical. It is not speculative. It is very real. His opinion, while still evolving, has definitely changed. It may become very compelling evidence for the defence.

[60] If this were a case of the defence consulting with yet another psychiatrist and seeking to adjourn to have yet another expert give the same evidence that has already been adduced, I would not be inclined to either mistry this case or to adjourn it.

[61] But this is something completely different. Dr. Klassen performed a court ordered assessment. He opined that Mr. Da Costa was not suffering from a psychotic illness. He did not support a finding that Mr. Da Costa should be exempt from criminal responsibility under s. 16 of the Criminal Code. The jury has been told that he would be testifying for the Crown.

[62] He has now had an opportunity to begin reviewing the better part of three years of accumulated records relating to Mr. Da Costa’s presentation and behaviour while in custody. And that review has changed his thinking. How profoundly we have yet to learn. In my view the very fact that he now is rethinking his opinion and is prepared to say, even provisionally, that he thinks Mr. Da Costa is schizophrenic, is a profound change in the landscape.

[63] The fact that a purported Crown witness has, upon review of a better record, come to change his views is crucially important evidence for the defence. It is important on its own, but it may also form the basis of a strong challenge to Dr. McMaster’s opinion, which is somewhat dated now.

[64] As a matter of trial fairness, Mr. Da Costa should be given the opportunity to explore this avenue of evidence.

[65] As Dr. Klassen pointed out during his evidence on the voir dire, it is not uncommon to find the status of mentally ill offenders deteriorate over time. Neither is it uncommon for an NCR defence to be rejected, only to have the offender progress into a far more pronounced stage of mental illness over the ensuing months or years. That disease progression can result in a re-evaluation of the purported mental disorder associated with the NCR defence. That is to say, opinions about whether a psychotic disorder was extant at the material time may change where there is a pronounced disease progression, whether before or after a verdict. Appeals on fresh evidence are typically the result where the change in opinion occurs post-verdict.

[66] In my view, we would be imperilling the interests of justice to press on with this trial before Dr. Klassen has finished his review and has rendered his firm opinion. In other words, we may be simply laying the foundation for an appeal on fresh evidence.

[67] The second driver of this decision is the issue of delay. The jury has already been put over from June to November. A four month delay in the middle of a jury trial may well be unprecedented. It must certainly be highly unusual. The presence of two factors made it possible in this instance. First, the willingness of the jurors to return, en masse. Second the fact that the Crown’s case was brief and consisted, by and large, of the recordings of the 911 call and the police interview. Both recordings will be available to the jury to review in their jury room during deliberations.

[68] On the basis of Dr. Klassen’s representations today, I am confident that it will take him until at least mid-January, 2019 to complete his review of the remaining records. In fact I believe his estimate to be optimistic. Once that review is completed he will presumably need to commit his opinion to writing. Counsel will need an opportunity to digest his report and settle upon a date for the trial to pick up. In my view, at least a two month adjournment will be required before this case is back on track.

[69] Even if the jurors were prepared to return in two months’ time and even if other logistical problems could be resolved [1] the prejudice to Mr. Da Costa’s defence would be irreparable.

[70] Mr. Da Costa’s mental health is an extremely complicated issue. The experts who have testified have universally agreed on that. He has been assessed on many occasions. Multiple diagnoses have been offered. The evidence given by the experts has been detailed and nuanced. It will be impossible for the jury to keep that evidence fresh in their minds. While I am able to refresh their memories to some extent in the jury charge, that will be a poor substitute for their actual recall.

[71] Moreover, the jury will have fresh in their minds the evidence of Dr. McMaster, assuming he is called as a Crown reply witness. They will also have the opportunity to review the 911 call and police statement which are the foundation of the Crown’s case. They will not have the opportunity to listen to recordings of the defence case.

[72] This is a very difficult case. A great deal of effort and energy has gone into getting the case to this point. Some 15 witnesses have testified over about three weeks of trial time, between June and November. The jury has heard from a number of experts, as well as Mr. Da Costa’s mother. Testifying was undoubtedly a very difficult experience for her. A mistrial will require her and all of the other witnesses to testify again.

[73] The jurors have tolerated significant disruptions in their lives and have acquitted themselves in exemplary fashion. In addition, the TSDC has gone to great lengths to accommodate videolink appearances by Mr. Da Costa. It is a tremendous shame to think that all of their efforts have gone for naught.

[74] Having said that, the overarching concern is that Mr. Da Costa receive a fundamentally fair trial. That can only happen, in view of the changing landscape, if time is permitted for Dr. Klassen to complete his review. In other words, only a significant adjournment will attenuate the risk of prejudicing Mr. Da Costa’s right to a fundamentally fair trial. A lengthy adjournment, at this critical point in the trial, will regrettably necessitate a mistrial.

[75] The case will be spoken to tomorrow morning for the purpose of discharging the jury and arranging for a judicial pre-trial where new trial dates can be fixed.

Boswell J.

Released: December 3, 2018

[1] In particular, I am scheduled to begin hearing another lengthy homicide in early January.