COURT FILE NO.: CR-22-40000031-00AP

DATE: 20221215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CHRISTOPHER DEME

A. Del Rizzo, for the Crown

P. Socka, for the Defence

HEARD: 28 November 2022

S.A.Q. AKHTAR J.

RULING ON APPLICATION TO SEEK LEAVE TO EXTEND FILING TIME FOR APPEAL

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

1In November 2013, the applicant, Christopher Deme, pleaded guilty to unlawfully being in a dwelling, failing to comply with probation, and committing theft under $5000. The charges arose out of the applicant’s unlawful entry into an apartment building, going into one of the units, and stealing a flat screen television.

2He was later charged with failing to appear at court in January 2014 and further charged with breaking and entering into a non-dwelling property in August 2014.

3On 23 February 2015, the applicant was found not criminally responsible (NCR) for some of the charges which he faced, and those to which he had previously pleaded guilty.

4The NCR report was authored by Dr. Prakash who diagnosed the applicant with having “probably schizoaffective disorder”, anti-social personality traits, and suffering substance abuse in remission. Dr. Prakash believed that “at the time of the incident”, the applicant was unable to appreciate the nature and quality of his act or that what he was doing was legally and morally wrong.

5At the NCR hearing on 23 February 2015, the applicant’s counsel told the court that the applicant would be admitting the facts to be read in by the Crown and requesting a formal NCR finding. As agreed, the Crown put the facts in relation to the charge of failing to attend court on the record which was admitted by the applicant’s counsel. There was also a joint recommendation that the applicant be found NCR regarding the theft of the television.

6The judge agreed and found that Dr. Prakash’s diagnosis met the appropriate standard for a finding of NCR. That order was made with respect to the charges of unlawfully being in a dwelling, failing to attend court, failing to comply with probation, and theft under $5000. The break and enter into a non-dwelling charge was withdrawn along with a charge for possession of property obtained by crime under $5000.

7Since then, the applicant has been detained under the governance of the Ontario Review Board and is currently a patient at the Southwest Centre for Forensic Mental Health Care.

The Previous Appeal

8In November 2017, the applicant filed an inmate appeal against the NCR finding on the basis that he did not know he was able to appeal an NCR finding.

9The applicant contacted new counsel, Alexander Ostroff, for legal advice. Mr. Ostroff’s view was that the offences for which the applicant had been found NCR were attributable to drug induced psychosis and not a mental disorder as defined by s. 16 of the Criminal Code. Due to the extended delay, the Crown consented to an application for leave to extend the time for filing an appeal.

10In May 2018, the applicant advised Mr. Ostroff that he wished to abandon his appeal because he was concerned about losing access to mental health supports. Mr. Ostroff disagreed and sought to persuade the applicant that his appeal had merit. The applicant relented and continued his appeal.

11Subsequently, Mr. Ostroff obtained the applicant’s Hospital Report from 2016 and 2018 which confirmed “a diagnosis of a major mental illness”. In his view, this finding undermined any appeal grounded “on the basis of a misdiagnosis and drug-induced psychosis”.

12After discussing these developments with the applicant, Mr. Ostroff obtained instructions to abandon the appeal.

Application for Leave

13The applicant claims that in the spring of 2022, he discovered a former co-patient had won an NCR appeal for reasons unrelated to misdiagnosis. He now wishes to renew his appeal and brings another application for leave to extend time, based on an argument that the original NCR verdicts were unreasonable.

LEGAL PRINCIPLES

The Test for Granting Leave to Extend Filing Time

14Pursuant to Rule 40.05 of the Criminal Proceedings Rules, a party has 30 days to appeal from the order that is challenged. Rule 40.03 of the Rules allows a judge to extend or abridge that deadline upon application.

15The power to grant or refuse an extension of time to appeal is discretionary and not one that arises as of right: R. v. Roberge, [2005] 2 S.C.R. 469, 2005 SCC 48, at para. 6; R. v. Menear 2002 CanLII 7570 (ON CA), [2002] O.J. No. 244, 162 C.C.C. (3d) 233, at para. 20.

16In R. v. Closs (1998), 1998 CanLII 1921 (ON CA), 105 O.A.C. 392, Carthy J.A., in chambers, at para. 8, commented on the rarity of granting orders that extend time to appeal by stating:

It is my view that such orders should be made only in exceptional circumstances where there is a real concern that an injustice may have occurred. There are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered. We must have finality except where the demands of justice dictate otherwise.

17In Menear, at para. 20, the court identified the following three factors to be considered when deciding whether an extension of time is justified:

(1) Has the applicant has shown a bona fide intention to appeal within the appeal period;

(2) Has the applicant has accounted for or explained the delay; and

(3) Is there merit to the proposed appeal.

18This list is not exhaustive and the court “may take into consideration other factors such as whether the consequences of the conviction are out of all proportion to the penalty imposed, whether the Crown will be prejudiced and whether the applicant has taken the benefit of the judgment. In the end, the main consideration is whether the applicant has demonstrated that justice requires the extension of time be granted”: Menear, at para. 21; R. v. Ansari, 2015 ONCA 891 at para. 23.

SHOULD LEAVE BE GRANTED?

Did the Applicant Have a Bona Fide Intention to Appeal?

19The applicant concedes that he did not form the intention to appeal in the relevant time frame. As noted, the applicant’s first appeal commenced over two years after the NCR verdict before being abandoned approximately one year later.

Explanation for the Delay

20The applicant submits that he was initially unaware that it was possible to appeal the NCR finding.

21That assertion, however, is difficult to reconcile with the fact that he was clearly aware in 2017 when he pursued the previous appeal which was ultimately abandoned.

22The applicant states that in the previous appeal, Mr. Ostroff told him a misdiagnosis was the only way in which an NCR verdict could be set aside. He implies that he abandoned the appeal only because Mr. Ostroff advised him to do so.

23This past spring, the applicant claims that he became aware that another patient had overturned an NCR finding on a ground “unrelated to misdiagnosis”. He says that it was as a result of becoming aware of this fact that he began to make enquiries and contacted a lawyer to resurrect his appeal.

24I find that the delay in this case has not been adequately explained.

25It should be remembered that when the applicant was represented by counsel, he consented to the original NCR finding. He subsequently launched an inmate appeal some two years later citing the basis for the delay as being unaware that an appeal from an NCR finding was possible.

26As part of that process, he retained the services of experienced defence counsel with whom he discussed “appealing the NCR verdict”.

27I find it difficult to believe that Mr. Ostroff did not explain all routes of appeal to the applicant, particularly given the applicant’s cited lack of knowledge as a justification for his delay in launching the appeal.

28Nor do I understand how the applicant’s discovery that another patient successfully appealed an NCR verdict unrelated to misdiagnosis constitutes an explanation for the delay in launching the current appeal: the applicant’s ground of appeal is not “unrelated to misdiagnosis” but that Dr. Prakash misdiagnosed him in 2015.

29The applicant clearly knew that this was a permissible avenue of appeal in 2017 because that is where Mr. Ostroff directed his efforts.

The Merits of the Appeal

30The applicant argues that this is a very strong appeal based on the fact that the NCR finding was unreasonable and could not be supported by the evidence. That being the case, the criteria of s. 16(1) of the Code is not satisfied.

31He advances a two-pronged argument.

32First, he submits that the NCR report was made in relation to six charges which spanned 19 months. The applicant points out that in the NCR report, Dr. Prakash wrote that the applicant was suffering from a major mental illness “at the time of the incident”. The applicant argues that by using the singular term of incident rather than the plural, it is unclear as to which offence the diagnosis related.

33The applicant argues that since there were three sets of charges before the court in the 2015 NCR hearing ((i) the May 2013 TV theft charges; (ii) the January 2014 failure to attend court; and (iii) the break-and-enter of a non-dwelling charge from August 2014, where it was alleged that the Applicant broke a window by throwing a stone), Dr. Prakash’s conclusion could have derived from any one of these offences, including the break-and-enter of a non-dwelling charge which was withdrawn. If it was the latter, there could not be a legal finding of NCR.

34I disagree.

35It is clear that when the sentence referred to by the applicant is read in isolation, the report might be construed as referring to a single incident. However, when reading the report in its entirety, it becomes apparent that Dr. Prakash evaluated the applicant on the basis of all three sets of charges.

36In the first paragraph of the report, Dr. Prakash sets out all of the charges that the applicant faced, specifically citing the failure to attend court, the break-and-enter of the non-dwelling with intent, break-and-enter to commit, possession of property obtained by crime, and failure to comply with probation.

37Dr. Prakash listed all of the evidence provided by the Toronto Police Services including the witness statements relating to the charges. On pages 3 and 4 of the report, Dr. Prakash returned to the charges and set them out in detail referring to the evidentiary basis upon which they were grounded.

38It appears obvious that Dr. Prakash considered all three charges and that the NCR opinion was based on an ongoing course of conduct and the applicant’s mental condition.

39The applicant’s second ground of appeal is that the verdict was unreasonable because there was a lack of evidence relating to the charge or the evidence that was available confirmed criminal responsibility. I note at the outset that the law distinguishes between NCR verdicts based on consent and those that are decided after contested hearings.

40In R. v. Guidolin, 2011 ONCA 264, at para. 12, the court observed:

When approaching an argument that an NCRMD verdict is unreasonable, where it was the appellant who sought that verdict at trial and the Crown agreed that the verdict was appropriate, this court should have regard to the position of the appellant and the consensual nature of the proceedings when assessing the adequacy of the material before the trial judge. One can hardly expect that the medical opinion evidence will contain the detail that would be found in a contested proceeding, or that the medical evidence will answer all of the questions that could possibly have been raised had the matter been contested.

41The 2015 NCR finding was one pursued by the applicant. Accordingly, Dr. Prakash’s report could not be expected to have the same detail or answers as would otherwise be the case. It would, as acknowledged by the applicant, have to be given a generous reading.

42A review of the report reveals ample evidence that the applicant had a long history of psychiatric problems and was diagnosed as having “probably schizoaffective disorder”, personality traits, as well as anti-social and substance abuse problems. This, along with the other evidence considered by the doctor, provides for an appropriate finding of NCR.

43I disagree with the applicant’s contention that the evidence falls short of providing the basis for an NCR finding. Dr. Prakash had at his disposal, a wide range of evidence which was sufficiently addressed in the context of the consent proceedings. For example, the instance used by the applicant regarding the theft of the television - the reference to “joking around” in the elevator - might well indicate that the applicant did not know what he was doing was wrong. Equally, when the applicant was asked about the charges, he had no memory of them, only recollecting that he was “living in the streets, using drugs and of his medications”.

44When Dr. Prakash’s report is read in its entirety, I find that there is little merit to the applicant’s ground of appeal.

Should Time Be Extended?

45Whilst I am cognisant that R. v. Stirling, [2005] O.J. No. 5341 (Ont. C.A.), indicates that there are serious consequences when a person is found NCR because they are subject to an indefinite term of sentence - subject to a successful review by an Ontario Review Board - I do not agree with the applicant’s submission that there is a separate, lesser test for leave to extend time in such cases.

46What is important is that in para. 12 of that judgment which contains the court’s comments about the serious consequences of an NCR finding, the court notes that “there is enough on the record in this case to suggest that there is potential merit in an appeal”. These remarks followed the court’s observations that there was sufficient evidence to show that the applicant had shown an intent to make a timely appeal, had provided an explanation for the delay, and a basis to question the diagnosis (whether the applicant’s diagnosed personality disorder qualified as a major mental disorder).

47For reasons described previously, that is not the case here.

48In this case there has been a seven year delay; an NCR finding sought by the applicant; an appeal first launched and then abandoned by experienced counsel; and now a new appeal which has very doubtful merit. I agree with the Crown that there must be finality at some point. This is it.

49For these reasons, I do not find that it is in the interest of justice to grant leave to extend time to appeal. The application is dismissed.

S.A.Q. Akhtar J.