COURT FILE NO.: CR-20-0032-00AP
DATE: 2022 01 18
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Paul Renwick and Ryan Mushlian for the Respondent Crown
- and –
YANNICK TSHIAMALA
Michael Davies for the Appellant
HEARD: May 12, 2021 and December 10, 2021 by Zoom conference
JUDGMENT ON SUMMARY CONVICION APPEAL
[On appeal from the judgment of Justice I. Jaffe dated June 10, 2019 finding the Appellant Not Criminally Responsible on Account of Mental Disorder]
D.E HARRIS J.
INTRODUCTION
[1] This summary conviction appeal from a not criminally responsible finding was originally argued on May 14, 2021. Judgment was reserved. Tragically, the Appellant died on October 2, 2021 while under the jurisdiction of the Ontario Review Board. A letter went out to counsel requesting their input on whether the appeal, despite being moot, ought to continue.
[2] A Zoom conference was held to hear submissions on the issue. Mr. Davies for the Appellant argued that the appeal should continue. Mr. Renwick for the Crown argued that the appeal should abate.
[3] The situation is governed by the Supreme Court’s decision in R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, see in particular paragraph 50. I do not intend to canvass in detail the various factors touched on in that judgment. In my view, applying the factors from Smith, the key issue in this instance is the jurisprudential importance of the appeal. If the appeal has some real significance to the development of the law in this area, it should continue. If it does not, the appeal should abate. That was the focus of counsel’s arguments on this hearing as well.
[4] For reasons that will become evident further on in these reasons, in my view the appeal should continue.
OVERVIEW OF THE TRIAL
[5] By his own choice, the Appellant was not represented by counsel at the trial. He was accused of assault with a weapon and forcible confinement against his mother. The Appellant’s mother testified that while in a delusional state, he threatened her with a knife. The Appellant testified and did not deny committing the acts alleged. He testified that he was instructed by God and was carrying out God’s instructions.
[6] At trial, a lawyer was assigned to conduct some of the cross-examinations. She also provided some other assistance to the Appellant as amicus curiae. At the end of the evidence, the Crown over the objections of the Appellant and amicus, made application for a mental health assessment under Section 672.12(3) of the Criminal Code. The application was granted by the trial judge.
[7] Ultimately, forensic psychiatrist Dr. Elizabeth Coleman made the assessment and testified at a not criminally responsible on account of mental disorder (NCRMD) hearing. It was her opinion that the appellant was suffering from schizophrenia at the time of the offences and was experiencing command hallucinations in which God was instructing him to kill his mother. He believed that his mother would not be harmed by his actions. The Appellant did not believe that his behaviour was morally wrong. In the doctor’s view, the Appellant was not “able to rationally choose his actions at that time.” He should be found not criminally responsible.
[8] The trial judge, in accord with the expert evidence, found that the Appellant was suffering from schizophrenia at the time of the alleged offences, was incapable of making a rational choice and did not know that his actions were morally wrong. She found that the Appellant was not criminally responsible for his actions within the meaning of Section 16(1) of the Criminal Code and entered this verdict under Section 672.34 of the Code. Pursuant to Section 672.47 of the Code, the trial judge remanded the matter to the Review Board for disposition.
[9] The parties agree that the trial judge properly addressed the mental assessment issue and that the order she made for the assessment is unassailable. There is also no issue taken with the NCR finding itself. The issues argued on the appeal revolve around procedural deficiencies in permitting the Crown to raise the NCR issue. On this legal question, the Supreme Court judgment in R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933 (S.C.C.) is central. It is argued that the two preconditions from Swain circumscribing the Crown’s ability to raise NCR against the objections of the defendant were not met in this case.
Evidence at Trial
[10] On December 6, 2018, the complainant Binku Tshishimbi came home from work and saw her son, the Appellant, in the living room reading the Bible. He was shaking his head and singing. She thought his behaviour was unusual. A little while later, she came out to the stairs and observed the Appellant kneeling on the landing, naked. There was a knife on the carpet before him. The Appellant told her he wanted to take the knife and kill her – he loved her, but she did not listen to the Lord.
[11] Ms. Tshishimbi then called the police, which upset the Appellant. He picked up the knife and cornered her in her bedroom. The Appellant held the knife close to her; at one point the blade of the knife touched her stomach. At this time, Ms. Tshishimbi’s daughter, Rachel, arrived home and came upstairs into her mother’s bedroom. Ms. Tshishimbi instructed her daughter to open the door to the police and to call the police herself. Rachel testified that the Appellant held the knife close to his mother and that as she was on the phone calling the police, he followed her into a corner of the room. The Appellant remained in the room, blocking his mother. He was naked. At one point he turned away from his mother and used the knife to stab at the air.
[12] The police attended in response to the 911 calls from the house. When they arrived, they observed that the Appellant was naked and holding a knife to his mother’s stomach in her bedroom. Her son Jacob had arrived and was standing between the two. The Appellant was chanting. The Appellant was tasered and taken out of the house by the police.
[13] The Appellant testified. He began with this speech:
Well, my name is Yannick Tshiamala. I present myself as a prophet of God, representing minorities. And the reason I do so is because in my household, we have a relationship with God. And as my mother testified yesterday, she speaks to God and God also speaks to her. And it’s written in scripture in John 10 by Jesus Christ, our Lord, that my sheep know my voice. I know them. My sheep hear my voice. I know them and they follow me.
[14] In chief, the Appellant testified,
...I was meditating throughout that whole, entire day, studying my scripture and meditating in my room – I mean in the house, I was – I was alone for – there was nobody at home. And while in meditation, God tempted – hours before my mom had gotten home, God was tempting me and God told me to take my, my, my clothes off. I took my clothes off in obedience of God's voice. And throughout, throughout the – throughout that – throughout that duration of time, I'm being educated by God. And it was just there was a lot of stuff happening that was very enlightening with that conversation. And there was a reason behind God's command. And my obedience was out of faith.
[15] In reference to the charges, the Appellant testified,
And throughout my meditation – like, I, I explained this to my little brother, Jacob (indiscernible), and I said, "Jacob, I was meditating and I heard God say to me, kill your mom." But briefly, in that vision, in that – in that moment aside (ph), he let me know that no harm will come to her. And – but my, my character was tested. My, my faith was tested at that time. And as much as I love my mom and I would give my life for her any day, I don't love her more than God. I just – and, and, and, and, and it's a sin to love her more than God because Jesus himself said, whosoever loveth father or mother more than me is not worthy of me. And you know, and I, I trusted God with the, the command that he gave me and the vision that he gave me that my mom would be safe.
[16] In cross-examination, the following transpired,
Q. Okay. But when you picked up the knife and blocked your mother in the corner and held it to her stomach, you were doing that because God had told you it was okay to do that? Is, is that basically what you're saying?
A. I, I think I'm quite clear in what I am saying. And what I am saying is that prior to me getting up there, prior to me picking up the knife, prior to me stepping to the steps, the command was given. And to tell you the command was, was for me to do what God told me to do and the entirety of it was also that no harm would befall my mother.
THE PROCEDURAL COURSE OF THE TRIAL AFTER THE EVIDENCE CONCLUDED
[17] In submissions at the conclusion of the evidence, in arguing for guilt, the Crown focussed on the elements of the offences charged, particularly the forcible confinement charge. Mr. Tshiamala in his submissions argued that his actions were not premeditated, they were all of a sudden, and therefore were not intentional. As in his evidence, he relied heavily on his obedience to the commands of God. For the most part, the Appellant’s submissions were not material to the elements of the offences nor to the credibility or reliability of the witnesses presented by the Crown in their case, including his mother, sister and brother. The Appellant’s submissions lacked coherence. He did say several times that he was not guilty of the assault.
[18] It was only in reply following the Appellant’s submissions that the Crown raised Section 672.12 of the Criminal Code and asked for a mental health assessment order under its authority. The Appellant was strongly opposed to the assessment order. The trial judge, as she did from this point forward, repeatedly urged the Appellant to retain counsel to assist him. He was resistant and never did have the assistance of counsel in this proceeding. Amicus participated at several junctures, however.
[19] The trial judge commented during submissions on the assessment issue,
…there seems to be little utility in even engaging this process [the assessment order issue] until such time as the court determines that the actus reus, the act of the offence has been proven beyond a reasonable doubt. Because really this goes to the mental element, and if, if I find that the act has not been proven, I don’t think you even engage this process. So what I intend to do is review the evidence, determine whether or not the Crown has proven beyond a reasonable doubt the act of assault with a weapon and the act of unlawful confinement and it will only be once I determine [that] I will consider the Crown’s application to make an order for you to be assessed.
(Emphasis Added)
[20] Other comments made it clear that the trial judge was going to determine the act element of the offences and hold off on any finding with reference to the mental element. The Crown directed her submissions to the Appellant’s actions as well and not to the mental element. In the course of the discussions, the Supreme Court of Canada’s case of Swain was mentioned but only in passing.
[21] In the subsequent ruling on the assessment question, the trial judge first found that the Crown had proved the actus reus of both offences. The trial judge then directed herself to Section 672.12(3). That section allows the prosecutor to request and the judge to order an assessment if,
(a) the accused puts his or her mental capacity for criminal intent into issue; or
(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
[22] On the first question in (a), the trial judge held that the Crown had failed,
I agree that Mr. Tshiamala did not put his mental capacity in issue. He offered an explanation as to what motivated him but made no concessions regarding the existence of a mental disorder or lack of mental capacity.
[23] However, the trial judge found that the Crown was successful on (b),
Mr. Tshiamala attacked his beloved mother with a knife while naked and while chanting. This evidence alone provides a reasonable basis upon which to doubt that Mr. Tshiamala was criminally responsible for the alleged offence on account of a mental disorder.
[24] The assessment was ordered. After the assessment came back and the proceedings continued, the Swain case was never discussed again.
THE LEGAL ISSUES
THE MENTAL HEALTH ASSESSMENT UNDER SECTION 672.12(3) of THE CODE
[25] Mr. Davies for the Appellant argued that the assessment should only have been ordered after verdict. There are conflicting authorities on this issue but, in any case, it is not necessary to decide it here.
[26] Aside from the timing issue, both parties agree that the mental assessment order was properly made. I agree. The Appellant’s delusional thinking was unmistakable on both the Crown evidence and his own evidence.
[27] The trial judge was correct that the evidence met the standard under Section 672.12(3)(b) of reasonable grounds to doubt that the Appellant was criminally responsible at the time of the alleged offences on account of mental disorder. A recent articulation of the test for NCR from the Court of Appeal judgment in R. v. Dobson 2018 ONCA 589 (Ont. C.A.) at para. 24 aligns with the Appellant’s evidence,
…an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.
[28] The Appellant’s obedience to the commands of “God” superseded his adherence to societal norms prohibiting assault and forcible confinement. There were grounds to believe that at the time of the offences, he was incapable of knowing that his actions were morally wrong: see R. v. John Doe, 2011 ONSC 92, 266 CCC (3d) 123 (Ont. S.C.); Regina v. Issac (2009), 2009 ONCJ 662, 250 C.C.C. (3d) 565 (Ont. C.J.), at p.575.
WAS THERE A FINDING TO PERMIT THE CROWN TO RAISE NCR?
[29] Right after the Crown raised NCR in her submissions, there was a preliminary discussion of the issues germane to it. The submissions soon moved towards the mental assessment question, the first matter at hand. In the end, at no time did the trial judge specifically address whether the Crown should be permitted to raise NCR.
[30] In Swain, departing from previous authority, the Supreme Court held that the Crown did not have a virtually unfettered right to raise NCR during a trial, subject only to the discretion of the trial judge. This would contravene the accused’s constitutional right under Section 7 of the Charter to control his own defence.
[31] The Supreme Court in Swain sought to craft a common law rule restricting when the Crown can raise NCR in order to balance two main objectives:
56…The common law rule is aimed not only at avoiding the unfair treatment of the accused, but also at maintaining the integrity of the criminal justice system itself. The accused is not the only person who has an interest in the outcome of the trial; society itself has an interest in ensuring that the system does not incorrectly label [not criminally responsible] people as criminals.
57…The second objective was aptly characterized by the appellant as the protection of the public from presently dangerous persons requiring hospitalization. This objective arises from the fact that the Crown’s option to simply discontinue the prosecution of an accused, whom it suspects was insane at the time of the offence, does not address the concern that such a person may well be presently dangerous and may, therefore, bring him or herself into contact with the criminal justice system once again.
[32] In response to these dual objectives, the Court established two alternative, pre-conditions one of which must be met before the Crown can raise NCR (paras. 70-71):
I. “[A]fter the trier of fact ha[s] concluded that the accused was otherwise guilty of the offence charged.”; or
II. “[I]f during the course of the trial an accused raises evidence of mental impairment which (in the view of the trial judge) tends to put his or her mental capacity in issue.”
[33] The Swain preconditions survive the subsequent introduction of the Mental Disorder, Part XX.1 provisions in the Code: see R. v. Pietrangelo, 2008 ONCA 449 at para. 49; R. v. Piette, 2005 BCSC 1724 at para. 52.
THE FIRST BRANCH OF SWAIN
[34] Counsel for the Appellant and for the Crown agree that the trial judge erred in law by entering into the NCR hearing in the absence of a full finding of guilt on the charges; that is, a conclusion that the Crown had proved both the act and the mental element of the two offences. I agree. Swain is clear (see paragraph 70).
[35] The trial judge expressly reserved judgment on the mental element of the offences at the end of the evidence and submissions while, at the same time, finding the actus reus proved. In the quote above at paragraph 19, in essence the trial judge held that the NCR issue went to mens rea and she would therefore only adjudicate on the actus reus issue at that stage. In her final reasons finding that the Crown had persuaded her on a balance of probabilities that the Appellant was NCRMD, the trial judge in recounting the procedural history, commented,
On March 6, 2019, in separate reasons, I found that the Crown had proven the actus reus of both offences. Left to be determined was whether or not Mr. Tshiamala's mens rea had also been proven.
(Emphasis Added)
[36] Based on the trial record, it is not open to doubt that the trial judge specifically refrained from deciding the mens rea issue. In its absence, the trial judge could not, at the behest of the Crown, enter into the NCR hearing or make a finding, as she ultimately did, that the Appellant was not criminally responsible.
[37] The Crown argues that the error caused no prejudice and that the curative proviso in Section 686(1)(b)(iii) of the Criminal Code should be applied to dismiss the appeal. In the alternative, the Crown argues that entering into the NCR hearing can be supported based on the Appellant raising his own mental incapacity under the second pre-condition in Swain.
[38] Before discussing these two issues, as an aside, it is evident that the trial judge’s error was a reasonable one. She was not alerted to the double Swain criteria by the Crown at the trial even though it was the Crown that raised NCR.
[39] More importantly, it was understandable that the trial judge was reluctant to make a finding with respect to the mental element before the NCR hearing. It seems evident that she believed that entering into an analysis of mens rea could prejudice her in a subsequent NCR hearing if it was to follow.
[40] That was a reasonable conclusion. In the leading NCR case of R. v. Chaulk 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, the majority opinion of Chief Justice Lamer held that a Section 16 issue often manifests as a denial of the capacity to form the mental element of the crime:
26 … in my view, that the insanity provisions operate, at the most fundamental level, as an exemption from criminal liability which is predicated on an incapacity for criminal intent. However, in particular cases, this basic incapacity may manifest itself in a number of different ways depending on the claims put forward by the accused. A claim of insanity, with its underlying claim of criminal incapacity, could give rise to a denial of the actus reus or of the mens rea in a particular case. For example, an accused could claim that his or her mental condition is such that when the alleged crime took place, he or she was not acting consciously.
(Emphasis in Original)
[41] This was reiterated in Swain itself, when the Chief Justice wrote at para. 71,
As I have indicated in R. v. Chaulk, evidence of mental impairment will, in certain cases, tend to negate the element of mens rea.
Also see para. 36.
[42] This notion of the underlying concept of NCR was not shared by Justice McLachlin (as she then was) writing in dissent in Chaulk (see paras. 223-227, 230-232). She rejected the idea that a not criminally responsible finding went to the issue of capacity to form criminal intent, holding (para. 232),
I prefer to view s. 16 as referring to a more basic precept of the criminal law system — the notion that the attribution of criminal responsibility and punishment is morally and legally justifiable only for those who have the capacity to reason and thus to choose right from wrong.
[43] The problem is that premised on Chief Justice Lamer’s conception of the NCR provision in Section 16 of the Code, a finding of mens rea at the trial could conflict with a subsequent NCR finding. If on the main trial the judge concluded that the mental elements of the crime were proven, necessarily implicit in this would be that the accused had the capacity to form the intent required by the definition of the offence. Following Chief Justice Lamer’s theory of Section 16, this conclusion could later be contradicted at least on a theoretical level by a subsequent NCR finding, a finding based on an incapacity for criminal intent.
[44] Seen in this light, it makes sense to delay a finding of mens rea until the NCR conclusion is made. But under Swain, this is not possible. A finding of the mental element must come before a NCR hearing held at the Crown’s instance. It cannot be delayed. This potential conflict presents a troubling dilemma for a trial judge. It threatens one of the mainstays of judicial integrity, the importance of avoiding the appearance of pre-judgment: Downer v. R., 1977 CanLII 1990 (ON SC), [1977] O.J. No. 417, 35 C.C.C. (2d) 198 (Ont. H.C.) at paras. 7-10.
[45] In order to manage this potential conflict, there may be reasons to prefer Justice McLachlin’s underlying conception of Section 16 that mens rea and a NCR finding inhabit two different realms. It may also be arguable that the subsequent enactment of Part XX.1 of the Code has supplanted Chief Justice Lamer’s conception of NCR in favour of Chief Justice McLachlin’s: see Winko v. Forensic Psychiatric Institute, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, 135 C.C.C. (3d) 129 at para. 34.
[46] I need not comment further on this conundrum. As things stand, Swain is clear. On this branch of the test for permitting the Crown to raise NCR, nothing short of a full finding of guilt will do before the Crown can raise the Section 16 issue. Not to have found both the act and mental element of the two counts beyond a reasonable doubt before permitting the Crown to raise NCR constituted an error of law.
OUGHT THE CURATRIVE PROVISO IN SECTION 686(1)(B)(III) APPLY TO THE ERROR?
[47] Deciding the proviso issue which allows for the dismissal of an accused’s appeal despite an error having been made, in my view, would have little jurisprudential significance or offer much help to judges and counsel in the future. However, I believe the second issue has some importance to the jurisprudential development of the Swain conditions. Logically, the proviso issue must be resolved before getting to that issue. For that reason, the proviso issue should be decided.
[48] The Crown’s argument for the application of the proviso appears at first blush to be a formidable one. The Appellant admitted the actus reus of the offences. Like the trial judge, I agree that his explanation that he was commanded by God to do what he did does not negate the mental element required for either offence. His motive was delusional but that does not dislodge proof of the intent required to commit the offences. Motive—the directions from God telling him to do what he did—is not an essential element of the crimes for which he was charged: R. v. Lewis, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821 (S.C.C.) at paras. 28-30; R. v. Malone, 1984 CanLII 3480 (ON CA), [1984] O.J. No. 22, 11 C.C.C. (3d) 34 (Ont. C.A.) at para. 25.
[49] In circumstances like this, proof of the actus reus often brings with it proof of the mens rea. In this case, there was no evidence derogating from the presence of the mental element. As he freely admitted, the Appellant intended to apply force to his mother and to forcibly confine her.
[50] I agree with the Crown’s argument that the case on both the act and mental elements of the offences was overwhelming. This legal conclusion is the standard required to invoke the curative proviso: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823 (S.C.C.), at paras. 28-31; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 (S.C.C.), at paras. 34-36.
[51] However, in this case, despite the overwhelming case against the Appellant at trial, the error made cannot be cured by resort to Section 686(1)(b)(iii) of the Code. To apply the proviso would damage the integrity of the trial process.
[52] Procedural fairness often takes on special importance within mental disorder issues in criminal cases: see e.g. R. v. A. (P.), 2011 ONCA 673 (Ont. C.A.); R. v. Langlois, (2005), 2005 BCCA 162, 195 C.C.C. (3d) 152 (B.C. C.A.) at p. 160; R. v. Kankis, 2012 ONSC 378, [2012] O.J. No. 192, 281 C.C.C. (3d) 113 (Ont. S.C.). This case is an example in the important context of a constitutionally mandated requirement restricting the Crown’s latitude in raising NCRMD. Allowing the Crown to raise NCR in the absence of satisfying the Swain preconditions violated the Appellant’s Section 7 rights. The Appellant lost control of his defence.
[53] The pivotal fact in analyzing the proviso issue is that the trial judge at no time entered into a discussion or resolution of mens rea. She specifically refrained from doing so because of concerns—reasonable concerns--with the appearance of pre-judgment. This is not a situation where the trial judge made an error of law in articulating and applying the pertinent mens rea for the offence. There was no finding or even at attempt to make one. This is anything but a technical difference.
[54] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, para. 55, point 10 Justice Binnie held for the Court,
Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in such a case for a new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso.
[55] Also see paragraph 52.
[56] Explaining on appeal how to find mens rea based on the transcript of the trial could be relatively easily done. But that would not resolve the main problem. What differentiates this case from a typical error in law case is that the trial judge here deliberately made no finding. The only way to rectify this would be for the appellate court to stand in the shoes of the trial court. In my view, this would go against fundamental principle.
[57] An accused has a constitutional right to a trial finding as a corollary to the presumption of innocence and the right to a fair hearing protected by Section 11(d) of the Charter. The appearance of justice would be lost if an appellate court could simply fill in an essential element of the offence which the trial court expressly refrained from deciding, even where the evidence is overwhelming. The appellate court would have to assume the function of a trial judge. Doing so would negate the purpose of a trial and of trial findings under our law.
[58] In R. v. Schuldt 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, Justice Lamer, as he then was, said at para. 39,
…absent a shifting of the burden of proof upon the accused there is always some evidence upon which to make a finding of fact favourable to the accused, and such a finding, if in error, is an error of fact.
[59] This counsels against making a trial finding of fact against an accused person upon appeal. In a similar vein, the Supreme Court said in the old proviso case of Colpitts v. R., 1965 CanLII 2 (SCC), [1965] S.C.R. 739, [1966] 1 C.C.C. 146 at 744 (S.C.R.),
Under our system of law a man on trial for his life is entitled to the verdict of a jury which has been accurately and adequately instructed as to the law. The construction of s. [686 (1)(b)(iii)] contended for by the Crown in this case would transfer from the jury to the Court of Appeal the question whether the evidence established the guilt of the accused beyond a reasonable doubt. To adapt the words of Lord Herschell in Makin v. Attorney General for New South Wales, the judges would in truth be substituted for the jury, the verdict would become theirs and theirs alone, and would be arrived at upon a perusal of the evidence without any opportunity of seeing the demeanour of the witnesses and weighing the evidence with the assistance which this affords.
[60] To the same effect is R. v. John, 1985 CanLII 15 (SCC), [1985] 2 S.C.R. 476, 23 C.C.C. (3d) 326 at para. 9,
Section [686(1)(b)(iii)] of the Criminal Code cannot be invoked in these circumstances. The reviewing tribunal cannot, with anything approaching reality, retry the case to assess the worth of the residual evidence after the improperly-adduced evidence has been extracted from the record. The appellate tribunal does not have the advantage of seeing the witnesses, and in any case was never intended in the criminal process to replace the jury.
[61] The operation of the proviso is qualitatively different when, as here, the appellate court is called upon to make a finding of fact as opposed to evaluating whether an identifiable error has caused harm to the fair trial of the accused.
[62] It is well established that the proviso encompasses prejudice to the appearance of fairness as well as actual unfairness: R. v. Hertrich (1982) 1982 CanLII 3307 (ON CA), 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510 (Ont. C.A.) at para. 99, leave refused (1982), 45 N.R. 629n (S.C.C.); R. v. Cameron, (1991), 1991 CanLII 7182 (ON CA), 2 O.R. (3d) 633, 64 C.C.C. (3d) 96 (C.A.); R. v. E. (F.E.), 2011 ONCA 783, [2011] O.J. No. 5738 (Ont. C.A.) at para. 33.
[63] The void in the trial judge’s reasons was a deliberate and reasoned one. Filling the void on appeal would be to deny the Appellant’s right to a trial finding and verdict. The appearance of an appellate court arrogating to itself the function of a trial court would compromise our system of criminal justice. For these reasons, the curative proviso ought not to be applied in this case.
DID THE APPELLANT RAISE EVIDENCE OF “MENTAL IMPAIRMENT WHICH TEND[ED] TO PUT HIS… MENTAL CAPACITY IN ISSUE?”
[64] The other tack the Crown takes to rectify the error is to invoke the second branch of Swain permitting the Crown to raise NCR over the accused’s objection. It is argued that if the Appellant raised evidence of his mental impairment which tended to put his mental capacity in issue, this would obviate the error with respect to the other branch of Swain. The error would be relegated to the harmless category as there would be another ground justifying the entering into the NCR hearing and then making the NCR finding.
[65] It is this issue which, in my opinion, is sufficiently important to clear the Smith hurdle. Subsequent to Swain’s discussion of this issue, there has been almost no judicial consideration of this branch of the test for permitting the Crown to raise NCR. One of the only cases considering it is the British Columbia Court of Appeal decision in R. v. Faire, 2020 BCCA 110, 386 C.C.C. (3d) 312, 63 C.R. (7th) 390 (B.C.C.A.).
[66] It would be wrong to conclude that the paucity of judicial commentary is indicative of a lack of importance. The right of an accused to control their defence was minted as a constitutionally protected value in Swain. As a practical matter, the full finding of guilt branch of the bifurcated test is utilized much more frequently than the mental incapacity branch. Commentary on the mental incapacity branch could assist in the future.
[67] Finally, the consequences of the Crown pressing for a NCR finding over the accused’s opposition can be profound. It can mean the difference between a relatively short jail stint or no jail at all if the accused’s is found criminally responsible versus a potential life-long loss of liberty if the accused is found not criminally responsible and then is subject to the mental disorder procedure in the Criminal Code and provincial legislation. The potential for a disproportionate impact on an accused person’s liberty has led to a good deal of commentary and well-placed concern over the years: see e.g. Kankis at paras. 20‑21.
[68] For these reasons, I am of the view that the appeal should continue mainly for the purpose of providing input on this second part of the Swain test. In addition, the context of this constitutionally protected area safeguarding the accused’s liberty interests is of some general significance.
[69] Examining the trial record, as has been said already, the trial judge, in permitting the Crown to embark on the NCR issue, did not delve into either the first or this second condition from Swain, whether the Appellant had raised his mental capacity. However, as made clear above, she did address the somewhat similar test for mental assessment under Section 672.12(3)(a): that is, whether “the accused puts his or her mental capacity for criminal intent into issue.” The trial judge concluded that the Appellant did not, holding as quoted at paragraph 22 above, that the Appellant provided an explanation of his motive for the offences—he was acting in accord with commands from God—but he could not and did not rely on it as demonstrating a lack of mental capacity for intent.
[70] The trial judge’s conclusion made in the context of Section 672.12(3) parallels the second Swain branch. Paraphrasing, that test is whether the accused has raised evidence of mental impairment tending to put his or her mental capacity in issue. Contextually, the two conditions may differ somewhat. But there is no need to dwell on that subtlety here.
[71] Reference to the reasons in Swain illustrates the purpose and function of this second precondition to the Crown raising NCR. Chief Justice Lamer wrote,
41 … if an accused chooses to raise evidence which tends to put his or her mental capacity for criminal intent into question, but falls short of raising the defence of insanity (within s. 16), the Crown will be [able] to raise its own evidence of insanity. In circumstances where the accused’s own evidence tends to put his or her mental capacity for criminal intent into question, the Crown will be entitled to put forward its own evidence of insanity and the trial Judge will be entitled to charge the jury on s. 16. Whether the accused’s evidence does, in fact, put mental capacity for criminal intent in issue will be a matter for the trial Judge to determine in the particular circumstances of each case. The Crown’s ability to raise evidence of insanity in these circumstances is necessary because, otherwise, the jury could well be left with an incomplete picture of the accused’s mental capacity. If an accused were able to raise some evidence of mental incapacity (short of an insanity defence) and, at the same time, able to preclude the Crown from raising any evidence of insanity that it may have in its possession, the possibility would arise that the accused could be acquitted by a jury which was deprived of the “full story” surrounding the accused’s mental incapacity. Such a result is clearly undesirable…
42 … If an accused chooses to conduct his or her defence in such a way that that accused’s mental capacity for criminal intent is somehow put into question, then the Crown will be entitled to “complete the picture” by raising its own evidence of insanity and the trial Judge will be entitled to charge the jury on s. 16.
(Emphasis Added)
[72] The British Columbia Court of Appeal in Faire confronted a situation in which the trial judge had not made a finding whether the accused had put his mental capacity into issue. The Court concluded that there were arguments to support both positions,
57 …When the Crown seeks to lead evidence of an accused’s mental incapacity for criminal intent prior to verdict, the court must decide if the evidence is necessary in accordance with the new common law rule set out in Swain. That decision will be made based on the way in which the accused has conducted the defence. Where the conduct of the defence directly raises the issue of incapacity that will not be a difficult decision. However, where, as here, that is not done, the court must weigh the evidence led by the accused while considering the offence charged, the mens rea required to prove the offence, and the defences raised by the accused.
59 It is evident from the circumstances before the [trial] court that arguments could have been made both for and against that proposition. The appellant could have argued that he did not put forward any psychiatric or other evidence to suggest that he suffered from a mental disorder. At no time did he assert that he lacked the capacity to form the criminal intent for the offence of aggravated assault. Indeed, his position was that he intended to harm Ms. Xu. The issue the appellant raised at trial was not a lack of mental capacity but rather, whether the Crown could disprove that he acted in self-defence. He could argue that the issues his testimony raised did not concern his intent, but rather, whether he should be acquitted because he acted in self-defence.
60 On the other hand, the Crown could have argued that by making an apparently delusional self-defence claim that was unsupported by evidence, the appellant was indirectly raising the issue of whether the Crown had proved mens rea beyond a reasonable doubt.
[73] In my opinion, in applying this second Swain precondition, its purpose must be kept in mind. Completing the picture or ensuring the full story is heard as referred to in Swain ought not to be a question of mere symmetry or narrative completeness. The analysis should be a strictly functional one. As the Chief Justice states at the end of paragraph 41 of Swain above, it is only if the mental impairment arising from the record could, in all of the circumstances, realistically lead to an acquittal, that this avenue for the Crown leading NCR ought to be open. This is a plain interpretation of the Chief Justice’s reasons and is harmonious with the restrictive approach which applies to the Crown raising Section 16 according to the Swain decision. Its is only this circumstance which could engender unfairness to the Crown in the trial process. The right to control one’s defence is not absolute but exceptions ought to be permitted only with a high measure of caution. This of course will not be an impediment to Crown reliance on the first pre-condition of Swain, a full finding of guilt on the offence(s) charged.
[74] In this case, the Appellant’s delusionary state did not constitute a defence to the crimes. The evidence of the Appellant could not have led to his acquittal. Both the Appellant himself and amicus specifically abjured any reliance on the delusions to argue a lack of mens rea or to argue for an acquittal. The second Swain exception permitting the Crown to raise NCR to refute a mental incapacity defence falling short of NCR could not apply.
[75] I appreciate that this means that while there were grounds for a mental assessment under Section 672,12(3)(b), the second branch of Swain did not permit the Crown to raise NCR. This might seem anomalous. But it makes logical sense that the threshold to raise NCR ought to be higher than that for an assessment. While the assessment is in itself invasive of an accused’s person autonomy and right to be left alone, the perils of an NCR finding for an accused are potentially much more serious. The first pre-condition in Swain will often be available and is the primary route for the Crown to take in raising NCRMD against the accused’s objection.
[76] Even if there was evidence that could potentially lead to a conclusion that the Appellant had put his mental capacity in issue at trial, both Swain and Faire insist that this issue is for a trial judge to determine. The British Columbia Court of Appeal held in Faire at paragraph 61 that no trial finding having been made, because there were viable arguments on both sides of the question, a new trial was required to decide the issue. Therefore, applying the same reasoning in this case, even if there had been some evidence to potentially satisfy the second Swain pre-condition—which I have found that there was not—the finding sought by the Crown could not have been made.
CONCLUSION
[77] In conclusion, the proviso ought not to apply to the error of allowing the Crown to raise NCR without satisfaction of either of the two pre-conditions from Swain. If the appeal were not moot, I would have allowed the appeal, quashed the NCR finding and ordered a new trial.
D.E HARRIS J.
Released: January 18, 2022
COURT FILE NO.: CR-20-0032-00AP
DATE: 2022 01 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Appellant
- and –
YANNICK TSHIAMALA
Respondent
APPEAL JUDGMENT
D.E HARRIS J.
Released: January 18, 2022