COURT FILE NO.: CR-3019-AP
DATE: 2019/08/30
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
Nicole Labadie Appellant
Julie Ghag, for the Crown Stephen Gehl, for the Appellant
HEARD: August 7, 2019
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
GEORGE J.
[1] The Appellant was charged with uttering a threat, criminal harassment, possessing a weapon for a dangerous purpose, and assault with a weapon. On February 16, 2017 she was found not criminally responsible.
[2] No pre-plea inquiry was conducted. No plea was taken. The Appellant’s trial counsel waived arraignment. At no point was the Appellant asked if the facts that the Crown read into the record were accurate. The proceeding unfolded as follows:
The Court: Is this Ms. Labadie?
Defence Counsel: Yes it is.
The Court: Thank you.
Clerk: For the record, returning to Nicole Labadie, lines 53, sorry, 50 through 56 of the docket.
The Court: Okay, [the Crown] just needs a moment to get organized.
Crown: Yes, Your Honour, we’re prepared to proceed. If your Honour has had an opportunity to read Dr. Komer’s report, he makes a…
Defence Counsel: You can sit down for a minute Ms. Labadie.
Nicole Labadie: Thanks.
Crown: His opinion is that at the time of the offences before the court Ms. Labadie was suffering from an illness that would prevent her from being criminally responsible. We’re not opposed. We’re not opposing that position and I don’t think my friend is either and having said that then what we’re proposing to do is mostly on consent proceed to essentially have an NCR hearing. If your Honour then finds that Ms. Labadie is not criminally responsible, we’ll proceed to have a disposition hearing and my friend and I are going to essentially have a joint position to put before the court as to what we’re going to do. So we have to proceed under s. 672.34 of the Code and offer the court facts so that the court can make a decision as to whether – a finding rather as to whether or not Ms. Labadie committed the acts alleged and then if so, on the basis of Dr. Komer's report find that she was not criminally responsible at the time on account of mental disorder and then we can move into the disposition hearing.
The Court: Thank you. So just, the section of the Criminal Code again that you just quoted.
Crown: Oh sorry, 672.34.
The Court: Thank you. And at some point we should make Dr. Komer’s report an exhibit.
Crown: We can do that right now.
Crown: Now in order to proceed with the actual hearing Ms. Labadie has to be arraigned on the outstanding charges.
The Court: Thank you.
Defence Counsel: I’m prepared to waive arraignment on the charges.
The Court: Thank you…
Crown: Thank you, and a plea is not necessary because the court’s not adjudicating guilt or innocence, just that there are sufficient facts to make the finding that she committed the offences.
The Court: Thank you.
Crown: If the court’s ready I can…
The Court: defence counsel, anything that you want to address?
Defence Counsel: No thank you, Your Honour.
The Court: Thank you…are we ready for the facts?
[3] The Crown then read certain facts into the record. When he finished, the following exchange occurred:
Defence Counsel: I’m not disputing any of those facts.
The Court: Thank you.
Crown: My friend having said that, Your Honour, the Crown would therefore under s. 672.34 invite the court to make a finding that Ms. Labadie committed the acts that form the basis of the offences charged and then we can move on to the next part.
The Court: Give me a moment to look at the section.
The Court: So I have obviously just heard the facts which are not being disputed. I’ve also had an opportunity to look at the section that counsel have referred me to which is the Criminal Code s. 672.34 and I’m satisfied that Ms. Labadie committed the acts that are before me today.
Crown: Thank you. And then, Your Honour, I think we’re both going to invite you on the basis of Dr. Komer’s report to proceed to the later part of s. 672.34 and render a verdict that the accused committed the acts as found, but was not criminally responsible on account of mental disorder.
The Court: And so on that do you want any specific submissions based on Dr. Komer’s report…
Defence Counsel: I would submit to you that the report, as usual, from Dr. Komer is full and complete and I’ve gone over it with Ms. Labadie and we’re in agreement with the findings that Dr. Komer made and would invite you to find her not criminally responsible because of a mental disorder which I think is more than abundantly clear from the report…
[4] Dr. Komer sets out this opinion at page 11 of his report:
It is my opinion that at the time of Ms. Labadie’s alleged offences, she was suffering from a mental disorder that rendered her incapable of knowing the wrongfulness of her actions. She lacked the ability for rational perception and hence rational choice about the wrongfulness of her actions. In my opinion, Ms. Labadie’s actions were as a direct result of her delusional beliefs pertaining to the alleged victims.
[5] The trial judge then made this finding:
…as a result of having accepted and qualified Dr. Komer as an expert and having reviewed and summarized his evidence I make the finding that she is NCR by virtue of the mental disorder that she suffers from.
[6] While this matter could have then been referred to the Ontario Review Board (“ORB”), on consent of the parties the Court proceeded to hold a disposition hearing. The presiding justice gave effect to counsel’s joint submission by imposing an 18-month probation order and granting a conditional discharge.
[7] The Appellant appeals against the NCR finding and asks that a new trial be ordered or, alternatively, that the charges be stayed. Her counsel identifies several problems with the process that led to this finding including:
- defence counsel’s waiver of a formal arraignment was, in the circumstances, improper;
- the fact there was no plea inquiry;
- no plea was asked for or entered;
- the Appellant, in her discussions with Dr. Komer, indicated that she acted in self-defence;
- after the facts were read into the record, neither defence counsel nor the court consulted with the Appellant to ascertain which facts she admitted and which she challenged; and
- the NCR finding was unreasonable as, while there was evidence to support Dr. Komer’s conclusion that the Appellant suffered from a mental disorder, there was no basis to find that this rendered her incapable of appreciating the nature and quality of the act or knew it was wrong.
[8] For reasons I will now explain this appeal must be allowed. Not only was an illegal sentence imposed – a time limited probation order is not an available disposition upon an NCR finding - the proceeding is so marred by errors that it is compromised beyond repair. I recognize that a miscarriage of justice is most often understood as the conviction of an innocent person, but it is broader than that and includes any finding that rests upon a procedure that is unfair. In other words, a procedure can be so flawed that any result that follows amounts to a miscarriage of justice.
[9] I will begin by setting out the Crown’s position and thereafter address each argument it raises.
[10] The Crown submits that this appeal lacks merit. In its factum it writes:
In support of Ms. Labadie’s appeal of an NCR finding, her counsel has filed a factum. First, the Appellant asks this court to vacate the trial judge’s finding that the elements of the following offences were made out: assault with a weapon, uttering death threats and possession of a weapon for the purpose of committing an offence (offence date August 10, 2016), harassment, uttering death threats (between July 15-August 16, 2016) and two further counts of uttering death threats (August 16, 2016). Further, the Appellant asks this court to quash the NCR verdict (rendered by the court based on uncontroversial expert evidence), and order a new trial or a stay of proceedings. The Crown says the appeal has no merit and should be dismissed.
[11] This position oversimplifies the issues at hand, fails to recognize the importance of due process, does not acknowledge what the trial judge specifically found, and ignores the specter of ineffective counsel which underlies this entire matter.
[12] Consider, first, the trial judge’s specific finding. She concluded “that [Ms. Labadie] is NCR by virtue of the mental disorder that she suffers from”. This is problematic. Section 16 of the Criminal Code provides that:
16(1) 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.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on a balance of probabilities.
(3) The burden of proof that an accused was suffering from a mental disorder as to be exempt from criminal responsibility is on the party that raises the issue.
[13] The Crown acknowledges irregularities but argues that any procedural failing is overcome by two things: First, the Appellant’s agreement with the facts - which overwhelmingly supported a finding that the Appellant committed the index offences. And second, Dr. Komer’s unimpeachable opinion that the Appellant was not criminally responsible. I disagree.
[14] We must remember that there are two branches to the test. It must first be established that the accused suffers from a mental disorder. There is no dispute that the Appellant does, and the trial judge so finds. That, however, is insufficient. The mental disorder must render the accused incapable of appreciating the nature and quality of the act, or from knowing that it was wrong. No such finding is made.
[15] Consider, next, the Appellant’s description of her interactions with trial counsel. She filed two affidavits, sworn September 26, 2018 and November 29, 2018 respectively. In her initial affidavit she deposed that her instructions to counsel were that she wanted to “plead guilty and get out of jail” and that she had no discussion with him about the prospect of indefinite detention should she be found not criminally responsible. She says she was told only that she would be placed on probation. While she spoke with Dr. Komer about the alleged facts, she says she had no such conversation with her counsel and was never asked whether she agreed with them. Her second is essentially a response to trial counsel’s affidavit. She deposed that:
I agree that [my counsel] and I spoke on the telephone about my matter and in person in the courthouse.
I never admitted to [him] that I committed the offences as described. I asked for video of both incidents to be secured and produced.
Of the day that I entered my plea, I indicated I wanted to plead guilty to lesser charges and be released. My focus was on being released. [Counsel] said I would be pleading guilty to the outstanding charges.
I do not recall discussing with [him] my version of events surrounding the offences that I gave to Dr. Komer.
When [counsel] and I discussed the proposed “deal”, he indicated that if I did not accept this “deal”, I would be lucky to see the “light of day”.
[He] said if I went with the “deal”, I would be released and put on probation only, and later have an NCR assessment. If I got into trouble I would be brought back to the hospital.
The only conversation I had with [my counsel] about the consequences of a verdict of not criminally responsible was that an assessment could be ordered, I could be seen by a psychiatrist and hospitalized.
[16] The Crown did not seek to cross-examine the Appellant on the content of these affidavits.
[17] Trial counsel filed an affidavit and attended for an examination on its content. In his affidavit he indicates that the assessment order under s. 672.11 was made prior to his retainer. He highlights his utmost confidence in the assessor – Dr. Komer – speaking to his expertise and the respect he typically garners. As it relates to the facts he deposed this at para. 4:
- After being retained, I examined the contents of the Crown disclosure. It was immediately obvious to me that the evidence against the appellant was formidable and that convictions were almost certain. It was also obvious to me that the charges were serious. Based on the circumstances of the offences outlined in the disclosure, the appellant’s behaviour at the time of the offences raised in my mind serious concerns whether the appellant was criminally responsible at the time of the offences. Her conduct was apparently irrational and inexplicable.
[18] He details his interactions with the Appellant. He did not visit her at the detention center, but rather communicated by telephone and in person at scheduled court appearances. In his view, while easily distracted, she was rational. He recalled reviewing the factual allegations with her, noting that she understood them and that she “would not and could not take issue” with them. He acknowledged that the Appellant would occasionally offer explanations for her behaviour, but he did not believe they amounted to viable defences. At para. 5 of his affidavit he deposed that:
- …I was satisfied that those factual admissions would meet the requirements of section 672.34 of the Code. I was satisfied that the facts I was prepared to admit on my client’s behalf and with her instructions on the hearing were objectively accurate and that the appellant admitted these with a full appreciation of their accuracy.
[19] The most problematic aspect of trial counsel’s affidavit is found at para. 7 where he writes:
- After discussions with the Crown Attorney it was agreed between him and myself on behalf of the appellant that there would be a plea of not guilty entered and accepted by the Crown because the evidence supported a finding that the appellant was not criminally responsible due to a mental disturbance and that a disposition hearing would be immediately conducted by the trial judge. It was agreed that a joint submission would be made to the trial judge on the disposition hearing and that the disposition should be a conditional discharge pursuant to section 672.54(b) of the Code on the same terms ultimately engrossed in the disposition order. At the instigation of the Crown Attorney, it was also agreed that there would be a probation order on the terms ultimately incorporated in the probation ultimately made by a judge. I now recognize that the probation order was made without any jurisdiction.
[20] He goes on at para. 11:
- No formal plea was entered. The proper plea would have been not guilty. It was implicit that a not guilty plea was made. The resolution made the formal plea of no practical importance.
[21] He points out that the Appellant was present throughout, asked no questions, did not seem confused, and that she had considerable experience in the criminal justice system.
[22] For several reasons I must accept the Appellant’s version of events. Trial counsel indicated that it was the intention of both he and the Crown that the disposition hearing proceed and that the disposition be comprised of two orders – a conditional discharge pursuant to s. 672.54(b) as well as a probation order. This is critical. While it is now acknowledged that a probation order could not be made, both counsel, at the time, were clearly of the view that it could. The Crown says this is inconsequential as it was quickly rectified. This makes little sense given how the matter then unfolded.
[23] As required by the Code the Appellant subsequently appeared before the ORB. At that hearing the hospital advocated for a detention order, which was supported by the Attorney General. Trial counsel, who continued to act at the ORB stage, sought a conditional discharge. While I have no jurisdiction to review and alter a disposition (that is within the sole purview of the Court of Appeal), this is important context. While trial counsel says he explained to the Appellant what an NCR finding, and conditional discharge were, there is no evidence that he had any meaningful discussion with her about the consequences of such a verdict. It must have come as quite a shock when the Appellant learned that, despite what her counsel told her, she was going to be detained in a hospital indefinitely.
[24] Consider this passage from trial counsel’s examination, beginning at line 29 of the transcript:
Q. All right. In relation to the consequences of an NCR verdict, on this first occasion when you spoke to her on the set date, did you explain to her what the consequences of such a verdict were?
A. I’m not sure whether it was on the first date or not. It was prior to, uh, to, uh, setting a, a date to, uh – for trial.
Q. Okay. And in the discussion you had with her about the consequences of such a verdict, is that in person or by phone?
A. Probably both on different occasions.
Q. Okay. And as best as you can tell, tell me what you told her about what the consequences of such a finding would be to her.
A. Okay. I told her that, uh, that I had discussed the matter with her previous counsel, uh, that she had been assessed by her – with her consent, uh, by, uh, Dr. Komer, excuse me, by Dr. Komer, what Dr. Komer’s findings were that, uh, she was, uh, in the view of Dr. Komer and from my reading of the report, that here was an NCR situation. She, uh – what the, uh, consequences would be. I told her that, uh, the possible findings that there could be as a result of NCR. The results that she could potentially be, uh, be, uh, held, uh, indefinitely in a hospital and, uh, through the, uh, the Board process, I told her that, uh, in my view, that I would try and negotiate out, uh, something. She indicated that she wanted to plead guilty and get out of jail. I indicated to her at that time that in my initial discussions with the Crown, they weren’t prepared to, uh, to, uh – that if NCR was not raised by the defence that the Crown was gonna’ raise it. I explained to her what those consequences could, explained to her what my view of the case was and, uh, we had so – she still wanted to plead guilty and get out of jail. I indicated that I would speak to the Crown again about doing that and, uh, I think that’s what I recall.
[25] So far as I can tell none of this was reduced to writing – either in the form of a memo to file or written instructions from the Appellant. There was no reporting letter and no indication during the course of trial counsel’s evidence, or on the court record, that the Appellant was waiving her right to a trial. I do not even know what her plea would have been had she been asked. Trial counsel’s evidence is simply a series of generalities highlighting essentially what he probably did and would typically do with his clients. Contrast this with the Appellant’s very clear account of what she knew, did not know, and what she was told.
[26] Furthermore, trial counsel makes it clear that he simply shrugged off the Appellant’s suggestion that she acted in self-defence, dismissing her claim outright. I agree that what the Appellant perceives to be a defence to the charges is a bit of a stretch, but that is not for me or trial counsel to decide. I expressly find that the Appellant was not made aware of, and consequently could not have possibly known, the complete range of dispositions available to the court and or ORB. Counsel himself did not even seem to fully appreciate the complete range of available outcomes, confirmed by his evidence that both he and the Crown contemplated the Court doing two things: discharging the Appellant conditionally pursuant to the mental health provisions of the Code, and (at the Crown’s instance) imposing a probation order. Meaning, the court’s imposition of an 18-month probation order was not merely a mistake, but fully intended.
[27] I understand completely the Appellant’s confusion about what transpired here. I am legally trained, and I am confused.
[28] The Crown further argues that there has been no prejudice to the Appellant. That is, there is no reasonable probability that the result would have been different. I address this to some extent earlier in these reasons, but I disagree. I appreciate that an inquiry akin to a pre-plea inquiry is not always warranted in matters like these, but this case cried out for one. All of the problems apparent on this record would have been avoided had trial counsel obtained written instructions or had the presiding justice inquired directly of the Appellant whether she agreed with the facts that were read into the record.
[29] The Crown argues that there was an “agreed statement of facts”. There was not. What we have is counsel, in a very perfunctory way, indicating that the facts are not disputed. Furthermore, while in Canada we do not typically engage an accused in a comprehensive allocution procedure, here the Appellant was not even asked whether she agreed with what was being presented. Her counsel simply said: “I’m not disputing any of those facts”. I am not sure what that means as that statement does not in any way reference the Appellant’s view of the evidence. It is his personal view. It is most certainly not an agreed statement of facts. That being the case I cannot find as the Crown suggests I should. I am not at all clear about what facts the Appellant agreed to or how she and her counsel resolved their disagreement over whether she had a viable defence.
[30] The Crown argues that there is no evidence that the Appellant would have resisted what she styles the Crown’s application for an NCR verdict. First, I am not even certain at whose instance this procedure was commenced. It was largely characterized as a joint position. At one point it is referred to as a Crown application. For his part, trial counsel was quite clear about one thing – that the Appellant wanted to plead guilty. That was her instruction. Second, this argument seems to echo trial counsel’s suggestion that the Appellant, in light of her extensive history in the criminal justice system, knew what was going on and if she had concerns she would have expressed them. I cannot adopt this reasoning as it implies that the Appellant’s experience alleviates any need to assiduously protect her rights by ensuring that she understands what is happening and what her options are, or that her experience means she must understand the forensic system. This I cannot countenance.
[31] The Crown seems to place some importance on the fact that the Appellant continued to use trial counsel’s services post-NCR verdict. This is of no consequence. Perhaps if I were satisfied that trial counsel had a sufficient understanding of the forensic system – or if he did, that he adequately explained it to the Appellant – this argument might hold water. But I am not satisfied. Moreover, it is important to recognize the many barriers and impediments to accused people, especially those who are legally aided, from changing counsel. The point is, I must not take anything from the fact that trial counsel continued to appear for the Appellant at her ORB proceedings.
[32] There are a myriad of problems with the NCR proceedings that are not overcome by any apparent agreement on the facts, or by Dr. Komer’s level of expertise and strength of his opinion. As such I would allow the appeal, set aside the NCR finding, and direct a new trial.
[33] I do wish to make one further observation. I am not staying the charges but directing a new trial. Which, of course, means the Crown will ultimately have to decide whether to retry the Appellant, and if so, what approach to take. With that, the Crown’s underlying argument that the facts are so strong, and Dr. Komer’s opinion so sound, that the result will not be any different is somewhat compelling and is a practical consideration I hope the Appellant and her counsel have discussed. Were ineffective counsel not a part of this piece, the Crown’s position would have likely proved persuasive.
[34] Furthermore, while this practical consideration does not abate the risks that were created by such a perfunctory approach to the Code’s mental health regime, it strikes me that the Appellant’s ultimate concern was, continues to be, and ultimately will be, with disposition. In other words, if the trial judge or ORB had discharged her absolutely, or even if the ORB had imposed a conditional discharge (and not detained her), I suspect we would not be here. Depending on how the Crown now decides to proceed, this dilemma is going to once again present itself to the Appellant who may ultimately find herself in the same position she is in now. Something for all involved to consider.
“Justice Jonathon C. George”
Justice Jonathon C. George
Released: August 30, 2019
COURT FILE NO.: CR-3019-AP
DATE: 2019/08/30
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Nicole Labadie
REASONS FOR DECISIONS ON SUMMARY CONVICTION APPEAL
George J.
Released: August 30, 2019