



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sualim, 2017 ONCA 178

DATE: 20170302

DOCKET: C59412

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Sualim

Appellant

Najma Jamaldin, for the appellant

Peter N. Fraser, for the respondent

Heard: February 23, 2017

On appeal from the ruling of Justice C. Brewer of the
    Ontario Court of Justice, on April 22, 2014 dismissing the appellants
    application that he be declared not criminally responsible on account of mental
    disorder.

By the Court:

I.        Background

[1]

After a trial by judge alone, the appellant was convicted of five counts
    of robbery with a firearm and five counts of theft over $5,000.  The offences
    in question involved a string of armed robberies and thefts committed in
    January 2012.

[2]

Following the appellants convictions, the defence advanced a not
    criminally responsible on account of mental disorder (NCR) plea pursuant to
    s. 16(1) of the
Criminal Code
, R.S.C. 1985, c. C-46.

[3]

An NCR hearing was conducted on various dates between June 2013 and
    March 2014.  Two forensic psychiatrists testified: Dr. Julian A.C. Gojer, for
    the defence, and Dr. Treena Wilkie, for the Crown.  The two experts agreed on
    many issues, including: that the appellant suffers from a major mental illness
    (Dr. Wilkie  schizophrenia and substance abuse disorder; Dr. Gojer 
    schizoaffective disorder); that he was likely experiencing psychotic symptoms
    of his illness in the days leading up to the offences; that his behaviour was
    goal-directed at the time of the offences; that he was able to appreciate the
    nature and consequences of his actions; and that he knew his actions were legally
    wrong.

[4]

However, Dr. Wilkie and Dr. Gojer disagreed on whether, at the time of
    the offences, the appellant also knew that his actions were
morally
(as opposed to legally) wrong.  In their testimony, both experts confirmed that
    the appellants self-reports or statements during their interviews of him
    were the only evidence bearing on this critical issue.

[5]

Dr. Wilkie interviewed the appellant approximately one year after the
    date of the offences.  At the time of this interview, the appellant denied any
    auditory or visual hallucinations, although he thought people were watching
    him, for unknown reasons.  He told Dr. Wilkie that he committed the offences to
    make money to start a drug dealing business; that he did not hear voices when
    he committed the robberies; and that he was concerned that his parents would
    find out about his activities.  Based on these statements, Dr. Wilkie offered
    the opinion that the appellant understood the moral wrongfulness of his conduct
    and that he could engage in rational choice.  Consequently, in Dr. Wilkies
    view, the appellant was criminally responsible at the time of the offences.

[6]

In contrast, at Dr. Gojers interview with the appellant conducted about
    two years after the date of the offences, the appellant said that he had been
    hearing voices at the time of the robberies; that a song by the musician Jay Z
    was controlling his mind; that the voices he heard had told him to commit the
    robberies; and that he needed money to support a child he believed (without any
    evidence) was his.  Based on these statements, Dr. Gojer was of the opinion that
    the appellants experience of prominent psychotic symptoms at the relevant
    times would have prevented him from distinguishing between the moral and legal
    wrongfulness of his acts and, more likely than not, rendered him unable to
    exercise rational choice.  Consequently, in his view, the appellant was not
    criminally responsible for the offences.

[7]

For reasons dated April 22, 2014, the trial judge held that the opinions
    of the two psychiatric experts regarding whether the appellant knew that his
    actions were morally wrong, although admissible, were entitled to no weight
    because they were based on the appellants hearsay statements or self-reports to
    each expert and the appellant had not testified.  She therefore concluded that
    the defence had failed to meet its onus under s. 16(3) of the
Criminal Code
to establish, on a balance of probabilities, that the appellant was NCR at the
    time of the offences.

[8]

On June 9, 2014, trial defence counsel wrote to the trial judge, copied
    to the trial Crown, taking the position that the trial judge had erred in her ruling
    on the admissibility of the expert evidence of the two psychiatrists.  As
    detailed in his letter, trial defence counsel essentially maintained that the
    NCR hearing had proceeded on a misunderstanding about the admission of the
    appellants self-reports to Dr. Wilkie and Dr. Gojer for the truth of their
    contents, without the necessity of calling the appellant as a witness.

[9]

Specifically, trial defence counsel maintained that counsel had agreed
    at the NCR hearing that it would not be necessary to call all relevant medical
    parties involved in the psychiatric assessments of the appellant or the
    appellants parents, who had provided information to the two psychiatrists
    regarding the appellant, as witnesses at the NCR hearing.  Further, counsel had
    also agreed that the parents statements and the appellants self-reports to
    Dr. Gojer and Dr. Wilkie, as detailed in the experts reports, could be relied
    on by the trial judge for the truth of their contents, without the necessity of
    leading oral evidence from the appellant or his parents at the NCR hearing. 
    Trial defence counsel acknowledged in his letter, however, that counsel had not
    informed the trial judge about their agreement regarding the appellants self-reports
    to Dr. Gojer and Dr. Wilkie.

[10]

In these circumstances, trial defence counsel suggested in his letter
    that the trial judges NCR ruling may have been predicated on an assumption
    regarding the treatment of hearsay evidence that was not shared by counsel at
    the NCR hearing and, consequently, that both counsel probably share[d] the
    same concerns with respect to the underpinnings of [the trial judges]
    judgment.

[11]

Trial defence counsel therefore requested that the trial judge review
    her judgment as it relate[d] to the admissibility of the expert medical
    evidence.  In his letter, counsel stated:

I also concede that the onus was entirely on the defence with
    respect to establishing the section 16 defence and any fault with respect to
    appreciating concessions is entirely mine.  That is why I raise the motion to
    re-open the case  it is my perspective that it is not too late to remedy any
    miscommunication on the very important issue of admissibility of the expert
    evidence.

It may also be somewhat fair to argue that both [the trial
    Crown and trial defence counsel] were working on the same understanding.  To
    begin with the issue of Mr. Sualims testimony as being necessary to the issue
    of his defence was never raised at any point of the trial.  The issue of his parents
    narrative of facts relating to his psychosis at the proximate time of the
    offence was raised by your Honour but both [the trial Crown] and I immediately
    identified our common understanding that your Honour could rely on that hearsay
    without the necessity of calling either parent.  Retrospectively I wish I would
    have also clarified our position with respect to Mr. Sualim but that was not
    done.

[12]

No formal application to reopen the appellants NCR plea proceeding was
    made.

[13]

On September 4, 2014, the trial judge received oral submissions from
    both counsel regarding the matters raised in the June 9 letter.  For brief oral
    reasons delivered immediately after those submissions, she declined to alter
    her original NCR ruling.  Her reasons, in their entirety, read as follows:

Let me just say a few things with respect to the request to
    re-open, first, I am unaware of any authority that would permit me to re-open a
    case after a verdict has been rendered. I appreciate that Counsel are concerned
    about my misunderstanding of the agreement that they had arrived at with
    respect to the psychiatric evidence, but, in any event, this is not even a
    classic form of a request to re-open as there is not to be any evidence called
    to correct an accidental omission; this was more to ask me to reconsider my
    judgment.

In addition, the request to treat Mr. Sualims statement[s] to
    the two doctors for the truth I think puts me in an impossible situation.  What
    the defendant said to one doctor entirely conflicts with what he said to the
    other doctor.  The only difference between the opinions of the two doctors
    turns on what was said to them, in my opinion.  In my view, this case does not
    really turn on the credibility of the doctors, but on the reliability of the
    information given to them.  So, I am in effect, in my view, being asked to
    resolve an issue of credibility without having heard from the source of the
    conflicting information.  I realize that this is not a result that is
    satisfactory to anyone, but given the circumstances in which I find myself, I
    believe I have to stand by my original decision.

[14]

Shortly thereafter, a sentencing hearing was conducted.  The appellant
    was sentenced to a total of five and one-half years imprisonment after credit
    for pre-sentence custody, plus three years probation.

[15]

The appellant has served his sentence.  However, he remains in custody
    pending his potential deportation to Nigeria, a country to which he has not
    been since he was three years of age.  The appellant now appeals to this court
    from the dismissal of his NCR application.

II.       Issues

[16]

The appellant contends that this appeal turns on whether the trial judge
    erred in her treatment of the evidence of his self-reports to the two
    psychiatrists.  He submits that, in light of counsels agreement about the
    trial judges use of that evidence, described above, the trial judge erred by
    assigning no weight to the opinions of the experts on whether the appellant
    knew that his actions were morally wrong at the time of the offences.

[17]

In support of this contention, the appellant argued in his factum that
    the trial judge erred in according no weight to Dr. Wilkies and Dr. Gojers
    opinions:

(1)

by
    refusing to adhere to the parties agreement to admit the appellants evidence
    through [his] self-report[s] for [their] truth;

(2)

by
    misapprehending the experts evidence; and

(3)

by
    refusing to reopen the appellants NCR application to reconsider the expert
    evidence in light of counsels agreement regarding the admissibility and use of
    the evidence of the appellants self-reports.

III.       Discussion

[18]

In our view, it is unnecessary for the disposition of this appeal to
    address each of these arguments in detail.  For the reasons that follow, we are
    satisfied that the trial judge erred in her treatment of the appellants
    self-reports to the two experts and, consequently, in her assessment of the
    experts opinions.  As a result, a new NCR hearing is required.

[19]

We deal first with the appellants submission that the trial judge erred
    by failing to give effect to counsels agreement that the appellants
    self-reports to Dr. Wilkie and Dr. Gojer would be admitted for the truth of
    their contents without the necessity of calling the appellant as a witness at
    the NCR hearing.  We reject this submission.

[20]

During oral argument before this court, the Crown did not dispute that
    an understanding or agreement existed between the trial Crown and trial defence
    counsel at the time of the NCR hearing regarding the admissibility and use by
    the trial judge of the appellants self-reports to Dr. Wilkie and Dr. Gojer. 
    The agreement was to the effect that the appellants statements to Dr. Wilkie
    and Dr. Gojer, which formed the basis of their conflicting opinions regarding
    the appellants knowledge of the moral wrongfulness of his acts at the time of
    the offences, could be admitted and relied upon by the trial judge for the
    truth of their contents without the necessity of calling the appellant as a
    witness at the NCR hearing.

[21]

Importantly, the parties also accepted at the appeal hearing that the
    trial judge did not know of this agreement between counsel until after she had
    delivered her NCR ruling.

[22]

The transcripts of the NCR hearing bear this out.  They reveal that,
    during final submissions at the NCR hearing, the trial judge inquired of
    counsel if there was any agreement between them about whether she could rely,
    for the truth of its contents, on the evidence of the information furnished by
    the appellants parents to Dr. Wilkie and Dr. Gojer, although neither parent
    had testified.  Counsel agreed that she could do so.

[23]

However, neither counsel informed the trial judge of any similar
    agreement between them concerning the appellants self-reports to the two
    experts.  Counsels submissions did not address the admissibility of the
    appellants statements to the two psychiatrists.  Rather, it appears that
    counsel merely presumed the admissibility and use by the trial judge of the
    appellants statements for the truth of their contents.  Nor did the trial
    judge raise this issue.  In the result, the trial judge only learned of counsels
    agreement on this issue upon her receipt of the June 9 letter.

[24]

In these circumstances, the trial judge can scarcely be faulted for
    failing to give effect at the NCR hearing to an agreement or understanding
    between counsel of which she was unaware.  As the trial judge said in her NCR
    ruling:

I appreciate that the parties have urged me to rely on the
    defendants self-reporting in their written submissions, despite the fact that
    no mention of using such evidence for its truth was made on the record at
    trial.

[25]

This ground of appeal therefore fails.

[26]

The question then becomes whether the trial judge erred by failing to
    re-open the appellants NCR application when requested to do so, and whether
    she erred by concluding, notwithstanding the new information provided to her
    about counsels agreement at the NCR hearing, described above, that her
    original NCR ruling should stand.

[27]

In our view, the trial judge did err in her approach to these issues. 
    Two factors compel this conclusion.  First, in declining to reopen the
    appellants NCR application, the trial judge concluded that she lacked the
    authority to do so.  For convenience, we repeat the trial judges opening
    remarks in her ruling on the reopening request:

Let me just say a few things with respect to the request to
    re-open,
first, I am unaware of any authority that would
    permit me to re-open a case after a verdict has been rendered
.  I
    appreciate that Counsel are concerned about my misunderstanding of the
    agreement that they had arrived at with respect to the psychiatric evidence,
    but,
in any event, this is not even a classic form of a
    request to re-open as there is not to be any evidence called to correct an
    accidental omission; this was more to ask me to reconsider my judgment
. 
    [Emphasis added.]

[28]

Thus, the trial judge was under the impression that she had no
    jurisdiction to reopen the appellants NCR application because she had rendered
    a verdict and, further, because she was being asked to reconsider her ruling on
    the merits, rather than clarifying or amending her ruling for inadvertent
    omissions or errors.

[29]

The trial judge was mistaken in this regard.  A trial judge exercising
    the functions of both judge and jury in a criminal case is not
functus
following a finding of guilt until he or she has imposed sentence or otherwise
    finally disposed of the case:
R. v. Lessard
(1977), 30 C.C.C. (2d) 70
    (Ont. C.A.), at paras. 10-12;
R. v. Griffith
, 2013 ONCA 510, 116 O.R.
    (3d) 561, at para. 12.   The Crown does not suggest otherwise on this appeal.

[30]

In this case, trial defence counsel had requested the trial judge to
    reconsider her ruling on the admissibility of the expert reports at the NCR
    hearing.  This was a mischaracterization of the actual request made of the
    trial judge.  The June 9 letter, read as a whole, makes clear that the real
    issue upon which reconsideration by the trial judge was sought was not the
    admissibility of Dr. Wilkies and Dr. Gojers reports, which had been admitted
    and amplified by their testimony at the NCR hearing, but rather, the
    admissibility of those parts of their reports that detailed the self-reports made
    to them by the appellant.

[31]

The trial judges comments, quoted above, confirm that she was aware
    that she was being asked to reopen the appellants NCR application for the purpose
    of reconsidering her NCR ruling based on the new information about counsels
    agreement.  While the reopening request was made by trial defence counsel, it
    does not appear to have been opposed by the trial Crown.  Nor did the trial Crown
    dispute the existence of the agreement between counsel regarding the
    admissibility and use of the appellants self-reports, as asserted by trial
    defence counsel.

[32]

There is also a further, important consideration.  Because the trial
    judge treated the appellants self-reports to Dr. Wilkie and Dr. Gojer as
    hearsay at the NCR hearing, she concluded that no weight could be assigned to
    the experts opinions that were based on those self-reports.  As a result, in
    the trial judges view, there was no evidence before her upon which she could
    rely establishing whether the appellant understood the moral wrongfulness of
    his acts at the time of the offences.  Accordingly, the trial judge ruled that the
    appellants NCR defence failed because the appellant had not met his onus
    under s. 16 (3) of the
Criminal Code
.

[33]

In so holding, the trial judge did not attempt to reconcile Dr. Wilkies
    and Dr. Gojers competing opinions on the availability of an NCR defence.  Nor
    did she determine at the NCR hearing whether the opinion of one expert should
    be preferred over that of the other expert.

[34]

Similarly, the trial judge did not undertake these inquiries as a result
    of the defence reopening request.  Instead, in her ruling on that request,
    after expressing the view that she had no authority to reopen, the trial judge
    held that, because the appellants statements to the two psychiatrists were
    conflicting and the only difference between the opinions of the two doctors
    turns on what was said to them, she was unable to resolve the reliability of
    the appellants self-reports without having heard testimony directly from the
    appellant.  The trial judge thus concluded that she was not in a position to
    resolve the conflicting expert opinions.  She therefore did not attempt to do
    so, or to otherwise engage in an analysis of the experts competing opinions.

[35]

With respect, by proceeding in this fashion, the trial judge erred. 
    Contrary to her understanding, the trial judge had the power to reopen the
    appellants NCR application.  The appellants sentencing hearing had not taken
    place at the time of the reopening request.

[36]

Moreover, without further analysis, the experts opinions on whether the
    appellant appreciated the moral wrongfulness of his acts at the time of the
    offences could not be rejected simply because the appellants statements to the
    experts, upon which their opinions were based, were conflicting.

[37]

It was incumbent on the trial judge to come to grips with the expert
    evidence and to determine whether it could be reconciled, or whether one of the
    expert opinions could and should be preferred over the other.  It may be that,
    having undertaken the requisite analysis of both opinions, the trial judge
    would conclude that she was unable to rely on either experts opinion given the
    nature of the evidence before her, including the appellants inconsistent
    self-reports.  Conversely, the trial judge may have been able to conclude that
    one of the experts opinions was more reliable than the other.  But a conclusion
    on the issue could not be reached unless the trial judge had engaged in the
    necessary analysis of the experts opinions and the information on which they
    were based.

[38]

As we have explained, in the unusual circumstances of this case and for
    differing reasons, this did not occur, either at the NCR hearing or as a result
    of the defence request to reopen the appellants NCR application.  Instead, at the
    NCR hearing, the trial judge concluded that no weight could be attached to the
    experts opinions because the appellants self-reports to Dr. Wilkie and Dr.
    Gojer were hearsay and the appellant had not testified.  And in her ruling on
    the defence request to reopen the appellants NCR application, the trial judge concluded
    that, because the appellants self-reports to the two experts were conflicting
    and the appellant had not testified, she could not resolve the competition
    between the two experts opinions.

[39]

In sum, as a result of the way in which this matter unfolded, the
    fairness of the process, involving a particularly vulnerable accused at a
    hearing to determine his criminal responsibility for serious crimes  a proceeding
    with serious consequences  was tainted.  In these unique circumstances, in our
    opinion, the interests of justice dictate that the trial judges NCR ruling
    cannot stand.  It follows that a new NCR hearing is required.

Disposition

[40]

For the reasons given, the trial judges April 22, 2014 NCR ruling is
    set aside and a new NCR hearing is ordered.  It will be open to the parties, as
    they may be advised and as the trial judge may direct, to rely at the new
    hearing on the evidence already adduced at the original NCR hearing.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.

B.W. Miller J.A.

Released: March 02, 2017


