



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Mitchell, 2012
    ONCA 804

DATE: 20121120

DOCKET: M41861

Weiler J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Stacey Mitchell

Applicant

Erin Dann, for the applicant

Chris Dwornikiewicz, for the respondent

Heard: November 16, 2012

On a motion for an extension of time to file a notice of
    appeal from the finding of not criminally responsible on account of mental
    disorder on January 23, 2009 by Justice Richard D.  Schneider, of the Ontario
    Court of Justice.

Weiler J.A. (in chambers):

[1]

The applicant pled guilty to one count of uttering a threat to cause
    death, one count of weapons dangerous, two counts of mischief under $5000, one
    count of theft under $5000, and four counts of failing to comply with the conditions
    of her recognizance. On January 23, 2009, on consent, the applicant was found
    not criminally responsible on account of mental disorder (NCRMD). She now seeks
    an extension of time to appeal this verdict.

[2]

Despite the lapse of time of almost four years, an applicant is not
    barred from challenging a NCRMD finding. That said, finality concerns and the
    concern of the court that the mental disorder provisions of the Criminal Code
    operate effectively require a court to look closely at an application that
    would give the applicant the opportunity to resile by way of appeal from the
    NCRMD verdict.  See
R. v. Guidolin,
[2011] 280 O.A.C. 387, at para.
    11.

[3]

Before granting an extension of time, the court will consider: 1)
    whether the applicant had a
bona fide
intention to appeal within the
    prescribed appeal period; 2) the applicants explanation for the delay; and 3)
    the merits of the proposed appeal. Depending on the circumstances, other
    factors will include: whether the consequences of conviction are disproportionate
    to the penalty imposed; prejudice to the Crown; and whether the applicant has
    taken the benefit of the judgment. See:
R. v. Price
, 2010 ONCA 541, at
    paras. 19 and 20;
R. v. Menear
[2002} 162 C.C.C.(3d) 233. The list of
    factors is not closed.  Other factors that inform the decision are the position
    of the defence at trial, whether the proceedings were consensual in nature and,
    more generally, whether the proceedings appeared to be fair and whether they
    were fair:
R. v. Closs
[1998] O.J. No. 172 (C.A.);
R. v. Kankis
[2012]
    281 C.C.C. (3d) 113 at paras 37-38.

Overall, the court must consider
    whether the justice of the case requires that an extension of time be granted.

[4]



I must now apply these considerations to this case. The
    applicant concedes that she did not form an intention to appeal within the 30
    day appeal period.  Her explanation for the delay is that she consented to the
    verdict because she knew she would be going to a hospital for treatment and not
    to jail.  She says that she only learned about her ability to appeal the NCRMD
    verdict after speaking with a fellow patient at CAMH in April, 2012.

[5]

While I do not doubt the sincerity of the applicants belief respecting
    when she learned she could appeal the verdict, ineffective assistance of counsel
    is not alleged.  Thus, at the time she was sentenced, the applicant who was fit
    to stand trial and who was represented by counsel, whom it is agreed is
    competent and experienced, agreed that she was NCRMD. She has been receiving
    treatment since that time. This same counsel also represented the applicant at
    all but one subsequent Ontario Review Board Hearings. The applicant does not
    say that she told this counsel at any time that the disposition made at trial
    was wrong.

[6]

The respondent submits that

the present application is more
    consistent with the applicant becoming frustrated at continuing to remain under
    the jurisdiction of the Ontario Review Board (ORB) and the fact that, at her
    most recent ORB hearing, the applicant was ordered to return to detention. I
    agree with this submission. Overall, the applicant has not adequately explained
    the delay in initiating the appeal.

[7]

That said, mental illness can present a hurdle to initiating legal
    proceedings that the average person does not have. The applicants age at the
    time, 19, and her relative lack of familiarity with the criminal justice system
    are also factors to consider. Further, unlike the finite sentence that would
    have been ordered had the applicant been found criminally responsible, the
    NCRMD disposition does not have a specific time frame. If an error was made in
    the NCRMD disposition, the applicant continues to live that error by being
    subject to the ORBs jurisdiction. As a result, lack of an explanation for the
    delay cannot be determinative.

[8]

The real issue is, therefore, whether the proposed appeal has merit such
    that the justice of the case requires that an extension of time be granted. In
    this case, the proposed ground of appeal is that the verdict of NCRMD was
    unreasonable and should be set aside pursuant to s. 686(1)(a) of the Criminal
    Code.

[9]

Before dealing with this argument, a brief summary of the facts
    pertaining to the death threat and weapons charges will be helpful. I agree
    with the applicants counsels submission that, in relation to the theft
    charge, there is no evidence particular to that charge to indicate that the
    applicant did not appreciate the nature and quality of her act. The charges
    were, however, all dealt with together and she concedes that, here, the
    application should stand or fall on all charges.

[10]

The
    facts in relation to the other charges are summarized in
Mitchell (Re),
[2011] O.R.B.D. No. 2691 (Ont. Review Bd) and are as follows:

Ms. Mitchell and the victim lived in the same apartment
    building, and were known to one another. During the weeks prior to the
    offences, Ms Mitchell had bothered the victim by knocking on his door and
    yelling incoherently. On October 4, 2008, Ms Mitchell attended the victim's
    apartment with another female and knocked on his door. When he did not answer,
    they kicked his door, causing damage. The victim contacted police, but Ms
    Mitchell was not located. Two days later, Ms Mitchell attended again, and
    knocked on the victim's door. When he opened the door, Ms Mitchell yelled
    "I'm gonna kill you" as she walked away. She was holding a knife at
    the time. She then slashed two tires on his car. The victim contacted the
    authorities, and Ms Mitchell was arrested. She was released by the Court on a
    Recognizance with conditions. Approximately 12 hours after her release from
    custody, she breached the conditions of her Recognizance by going to the
    victim's residence. She was arrested and once again released on a Recognizance
    on October 21, 2008.  On October 30, 2008, she breached the conditions of this
    second Recognizance by going to the victim's residence again, in the company of
    another female, and communicating with him.

[11]

According
    to the transcript of November 19, 2008, when the victim, Steve Pinnock,
    realized who was at his door, he told the applicant to leave and said he was
    going to call the police. About five minutes later, she again knocked on his
    door.  He again told her he was going to call the police and did so.  While he
    was speaking to the police, the victim lost sight of the applicant and told the
    dispatcher to cancel the call.  A short time later, the victim went to leave
    his apartment when he saw the applicant standing in the lobby of his building. 
    He went out the back door to avoid her. The transcript continues:

While Pinnock was talking to some neighbours at the back of his
    building, the accused approached him and sat on the stairs near him. Pinnock
    then walked away to the front of the building and the accused followed him
    there.  The building superintendent was present and he also told the accused to
    leave.  The accused would not leave the premise so Pinnock decided to go back
    inside.  The accused tried to follow him inside but Pinnock pushed her away and
    closed the door.

[12]

Following
    the applicants plea of guilty to the charges on November 19, 2008 the Crown
    sought to have the applicant detained for a period not exceeding 30 days for an
    NCR assessment. The applicant opposed the order but, on the basis of the
    applicants conduct and the fact that she had been subject to a civil
    commitment for mental disorder, the court held that there were reasonable
    grounds to believe the applicant might not be criminally responsible and
    ordered the assessment.  It was carried out by Dr. McDonald. Largely based on
    his report, the courts verdict was that the applicant NCRMD. Although there is
    no requirement that the applicant consent to this disposition, as I have
    indicated, the applicant consented to the proposed disposition at the time.

[13]

The
    applicant was committed only on the basis that she did not understood the
    nature and quality of her act under s. 16(1) of the
Criminal Code
. She
    was not committed on the basis that she did not know the act was morally wrong.

[14]

The
    applicants counsel concedes that Ms. Mitchell suffers from a mental disorder
    that likely was the driving force behind these offences. She submits that there
    is nevertheless no basis for a NCRMD verdict because the evidence falls short
    with respect to whether the applicant understood the nature and quality of her
    acts. She emphasizes the following statement in
Guidolin,
supra, at
    para. 13 by Doherty J.A. on behalf of the court: [I]f on a generous reading of
    the evidence, the NCRMD finding cannot pass the reasonableness standard, the
    finding cannot stand regardless of the negative impact an order setting it
    aside may have on the appellants treatment and the protection of the
    public.

[15]

The
    applicants counsels submissions are focussed on alleged shortcomings in the
    report of Dr. McDonald. She submits that nothing in the report of Dr. McDonald
    suggests that the applicant didnt understand the nature and quality of her
    acts; the report doesnt discuss the applicants mental status in relation to
    the particular offences; Dr. McDonald did a general report and a conclusory
    opinion without sufficient reasons.

[16]

In
    concluding that the applicant could not appreciate the nature or quality of her
    actions, Dr. McDonalds report included the following specific comments:

the issue of her fitness to stand trial was not raised, but I
    feel obliged to indicate that it could be a matter of concern;

she has at various times indicated that she has already pled
    guilty to her charges, or that that she hasn't. She has indicated that she was
    planning to move from her residence to avoid the victim prior to her arrest, or
    planning to move into his residence and live with him. She stated emphatically
    at one point "I never get paranoid", followed by "maybe I was
    paranoid";

the patient varies from stating that this neighbour is not a
    person of great consequence to her, or that indeed he is. She further varies
    from describing him as infatuated with her and following her around, involved in
    some kind of conspiracy against her, or having no great feelings about her at
    all;

on one occasion after being charged with slashing the neighbours'
    tires by using a knife, she reported that they had attacked her. Whether she
    meant literally the tires or someone else was unclear and remains so;

at one point, she described that the owner of the car (and
    tires) was watching her commit this act, looking out his apartment window, only
    to acknowledge that the car would not have been within view of his apartment
    window;

with respect to her expectations of what may happen when she
    returns to court, she stated initially that she expected all charges to be dropped,
    even after she already stated that she had pled guilty to all of them. She then
    stated tangentially, "I never tried to kill him at all";

among the things she reported frequently enough that I have
    confidence in believing them, are that she was hearing voices or at least
    sounds coming form the upstairs apartment that she interpreted as threatening.
    These varied from constituting direct threats from a clear voice which she
    still believes is real, although she also episodically stated that she never heard
    a voice at all and that if she did, it "might have been delusional";

[17]

In
    addition to the report of Dr. McDonald, facts that were brought to the courts
    attention including the following:

that police found the applicant rambling, crying, and not
    making sense after she was found near the entrance of the victims apartment in
    breach of her conditions of recognizance;

that, in speaking to the police, the applicant referred to the
    victim as her baby father and continued to attempt to contact with him even though
    they were merely neighbours.  She denied having any conditions to stay away
    from the place where the victim lived after having just received them.

that subsequent to her arrest, during the course of an
    interview with a mental health care worker, the applicant stated her intention
    to plead guilty to the allegations so she could get out of jail and get a gun
    and kill him (being the victim); and,

[18]

Considered
    as a whole, the evidence was sufficient for a reasonable trier of fact to
    conclude, on a balance of probabilities that the applicant was unable to
    appreciate the nature and quality of her acts at the time she committed them.
    The applicant has failed to discharge her burden that there is reason to doubt
    the correctness of the NCRMD verdict. The justice of the case does not require
    that an extension of time be granted. The application therefore fails.


