



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Szostak, 2012
    ONCA 503

DATE: 20120719

DOCKET: C49582

Rosenberg, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Henryk Szostak

Appellant

Brian Snell, for the appellant

Joanne Stuart, for the respondent

Heard: February 7, 2012

On appeal from the conviction entered on August 24, 2007 by
    Justice David A. Fairgrieve of the Ontario Court of Justice and the disposition
    of not criminally responsible dated August 24, 2007.

Rosenberg J.A.:

[1]

The appellant appeals from the finding that he was not criminally
    responsible on account of mental disorder after having been found guilty by
    Fairgrieve J. of criminal harassment and uttering a death threat. The
    appellants principal ground of appeal is that he did not receive effective
    assistance of counsel because counsel put his mental state in issue without his
    consent and otherwise breached the solicitor-client relationship. He also
    submits that the evidence did not make out the offence of criminal harassment
    and did not show that he was not criminally responsible on account of mental
    disorder.

[2]

For the following reasons, I would dismiss the appeal.

THE FACTS OF THE OFFENCES

[3]

At the time of the offences, in September 2006, the appellant was 68
    years of age. He had a severe drinking problem and had suffered a stroke some
    years earlier. He and his former common law wife, Hanna Mlodzianowska, had an eight
    year-old son.  The couple had separated when their son, Robert, was three years
    of age. The couple separated because the appellant had physically abused Ms.
    Mlodzianowska, causing her to go to a womens shelter on five occasions. Ms.
    Mlodzianowska had custody of the child, but she nevertheless felt it was
    important for the appellant to have contact with his son.  In the result, the
    appellant saw Robert on a more or less regular basis.

[4]

The offences originated in an incident at Ms. Mlodzianowskas apartment
    on September 2, 2006. The appellant suspected that something was wrong with
    Robert. Accordingly, he spied on the apartment with a pair of binoculars. He
    saw Robert playing with an adult male. They suddenly disappeared from view and
    so the appellant went to investigate. He testified that as he walked down the
    hallway, he heard Robert calling out, No, no, no! and a mans voice saying,
    Shut up, shut up! The appellant began to pound on the door and demanded to be
    let in.  He claimed that Robert was calling out to him for help.

[5]

Ms. Mlodzianowskas version of events was different. She testified that
    the appellant had never accepted that they were separated.  He wanted them to
    continue to live together. She had no intention of reconciling because it was
    a living hell when I lived with him and he just continues to annoy me and
    doesnt leave me alone. The evening of September 1, the appellant had banged
    on the door while she and Robert were inside.  She had not opened the door and,
    after some time, he left.

[6]

On September 2, Ms. Mlodzianowska was at work. She had left her son in
    the care of her friend, David Sevelka. On her way home from work, she received
    a call from Robert telling her that the appellant was pounding on the door. She
    told her son to keep the door closed. She was concerned about having to
    confront the appellant outside the apartment and so called the police. She also
    believed that the appellant may have been breaching a probation order. She did
    not want a confrontation because she knew the appellant could be physically
    aggressive and verbally abusive.

[7]

Police officers met Ms. Mlodzianowska outside the apartment where they
    found the appellant banging with his fists on the door. The appellant smelled
    of alcohol and was angry and yelling and demanding to see his son. He became
    louder and more aggressive when the police intervened. The police were able to
    escort the appellant away from the apartment door and then they arrested him
    for an offence under the
Liquor Licensing Act
, R.S.O. 1990, c. L.19
. Ms. Mlodzianowska
    returned to her apartment.

[8]

In the days following the incident at the apartment, the appellant made
    repeated telephone calls to Ms. Mlodzianowska. In the calls he swore at her,
    called her a prostitute, and threatened that she would not live very long if
    anything should happen to their son. He told her that if something happened to
    their son, he would know within 24 hours and she will leave the earth. The
    complainant saved 12 of the calls, which she provided to the police. The
    appellant had a history of calling her when he was drunk and leaving insulting
    and derogatory messages. As a result of the calls, the appellant was charged
    with criminal harassment and threatening.

THE TRIAL PROCEEDINGS

The Fitness Issue

[9]

At the opening of the trial on March 27, 2007, defence counsel, in the
    absence of the appellant, raised the issue of fitness to stand trial. He told
    the trial judge that this was the third time he had represented the appellant
    involving the same complainant and from speaking to him he had some concerns. 
    He said the following to the trial judge:

Hes been in custody for about six months. I have some concerns
    about his fitness. In other words, I think he knows who the Judge is and who
    the Crown is and who I am. My problem is that I try to explain the law to him
    and he doesnt seem to understand what I say to him. In other words, I say well
    this is what youre charged with and this is  and then he says to me okay well
    all I did was such and such and such and I says well yes and if you say that
    then youre guilty. And he says no Im not guilty and he goes on and on and he
    rants and raves, hes got a very short temper and swears up and down. Hes a
    very nasty unpleasant fellow apart from that. So I just wanted to alert you to
    that.

[10]

He went on
    to say that he believed the appellant to be brain-damaged and that the
    appellant had been in a psychiatric facility and was an alcoholic. Counsel said
    that he had no control over the appellant, who would not listen to him, but he
    was prepared to stay on and represent him unless the appellant did not want him
    to.

[11]

When the
    appellant was brought into the courtroom, the trial judge asked him some
    questions to try and determine if he understood the proceedings. When the trial
    judge read out the charges to the appellant, the appellant said that he did not
    understand the stupid accusation. He then continued on, saying that his son
    was calling on him to help and that he was only guilty of helping his son. 
    When asked if he was going to plead guilty or not guilty he said:

No, I consider myself a person who said that if something
    happens to the child the same thing will happen to the mother of the child. And
    what was the guy that was raping my kid. Yeah, this man, daddy help me, daddy
    help me.

[12]

The trial
    judge inquired as to whether the appellant understood the role of defence
    counsel.  The appellant said:

To explain that my behaviour, the way Im proceeding is not
    against the Constitution. That Im doing it for the defence of the child, the
    children and not some pervert.

[13]

The
    inquiry by the judge continued in this vein for some time further, with the
    appellant making statements focused on his defence that he was trying to
    protect his child.  He denied that he was harassing Ms. Mlodzianowska.  He
    repeatedly told the judge that he admitted telling her that if something bad
    happens to the child the same thing will happen to her.  At the end of the
    inquiry by the trial judge, Crown counsel submitted that it was apparent that
    the appellant had the limited cognitive capacity required for fitness to stand
    trial. Defence counsel was more focused on what he referred to as the
    delusional nature of his outlook on the situation [as] evidenced by the
    constantly repeated refrain of saying what happened as an excuse, as a defence
    to what he did when in fact its an admission of guilt. As a result, the
    appellant did not understand the significance of the outcome, i.e., that he
    could be sentenced if found guilty.

[14]

The trial
    judge asked defence counsel if he was seeking an assessment order with respect
    to fitness to stand trial and criminal responsibility. Defence counsel said
    that he was. The trial judge ordered a brief psychiatric evaluation by one of
    the psychiatrists from the Mental Health Court. The psychiatrist provided a
    brief oral report, apparently to Crown counsel, that the appellant was fit to
    stand trial. Defence counsel did not pursue the matter of fitness any further
    but in answer to a question from the trial judge said that he might seek an
    assessment of criminal responsibility after trial.

The Crowns Case

[15]

After the
    brief adjournment to deal with the fitness issue, Crown counsel called one of
    the investigating officers. She then called Ms. Mlodzianowska. I have
    summarized her evidence above and will deal with it further when addressing the
    grounds of appeal. Ms. Mlodzianowska testified in chief on March 27 and April
    19, 2007. Defence counsel cross-examined Ms. Mlodzianowska on April 19. The
    cross-examination was not lengthy but established that Ms. Mlodzianowska was
    aware of the appellants mental health and alcoholism issues. Defence counsel
    also confirmed that Ms. Mlodzianowska really just wanted the appellant out of
    her life and that she was tired of the messages he was leaving.

[16]

Defence
    counsel then called the appellant to testify. The appellant explained why he
    was concerned about the safety of his son on September 2, 2006. He admitted
    making telephone calls to Ms. Mlodzianowska in the following days and leaving a
    message to the effect that:

If something should happen to the child, the same thing will
    happen to you. If I find out that it was because of you that it was your fault
    and the fault of your friend, both of you will not live longer than 24 hours.

[17]

Crown
    counsel briefly cross-examined the appellant to establish that the appellant
    intended to scare the complainant. She also had the appellant confirm that he
    had left the voice messages and that he was harassing the complainant. Finally,
    she had the appellant confirm his criminal record. This completed the evidence.

[18]

In
    submissions, defence counsel stated that he had no submissions on the count of
    uttering a death threat. However, counsel submitted that the Crown had not made
    out the criminal harassment offence because the complainant did not fear for
    her safety. There were lengthy submissions by Crown and defence counsel on this
    issue. At the end of those submissions, the trial judge stated that he was
    finding the appellant guilty of both offences and would deliver written reasons
    at a later date.

The Abortive Sentence Proceedings

[19]

After the
    trial judge found the appellant guilty, Crown counsel suggested that there be a
    pre-sentence report. Defence counsel agreed that there should be a pre-sentence
    report. The trial judge then asked whether this was a case for a regular pre-Sentence
    report or is it a case where perhaps remand under the
Mental Health Act
because the source of your clients difficulties are probably psychiatric in
    nature, it might be of more assistance. At this point, defence counsel asked
    the trial judge to consider s. 672.11(b) of the
Criminal Code
, R.S.C. 1985, c. C-46
.  Section 672.11
    provides, in part, as follows:

672.11 A court having jurisdiction over an accused in respect
    of an offence may order an assessment of the mental condition of the accused,
    if it has reasonable grounds to believe that such evidence is necessary to
    determine



(b) whether the accused was, at the time of the commission of
    the alleged offence, suffering from a mental disorder so as to be exempt from
    criminal responsibility by virtue of subsection 16(1);

[20]

Section
    672.12 sets out when the court may order an assessment under s. 672.11(b):

672.12 (1) The court may make an assessment order at any stage
    of proceedings against the accused of its own motion, on application of the
    accused or, subject to subsections (2) and (3), on application of the
    prosecutor.



(3) Where the prosecutor applies for an assessment in order to
    determine whether the accused was suffering from a mental disorder at the time
    of the offence so as to be exempt from criminal responsibility, the court may
    only order the 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.

[21]

The trial
    judge asked whether there was any basis for doubting the appellants criminal
    responsibility. Defence counsel said: I think he believes what he said about
    what he heard through the door, he mightve been hallucinating I guess because
    of alcoholism.  The trial judge then asked defence counsel if he was raising
    the issue of criminal responsibility. Defence counsel said that he was. Crown
    counsel opposed the assessment order on the basis that there was no evidence
    that the appellant was suffering from a mental disorder at the time. The trial
    judge ordered the not criminally responsible assessment because it had been
    raised by the defence.

[22]

After
    court appearances in May and June, a report from the Centre for Addiction and
    Mental Health (CAMH) was filed with the court on June 29, 2007. The case was
    then adjourned to July 13, 2007. On that date, Crown counsel now said that she
    was not opposed to a finding of not criminally responsible on account of mental
    disorder (NCRMD). Defence counsel, however, then informed the trial judge that
    he had written instructions not to use any defence of not criminally
    responsible. He read out his instructions from the appellant in court:

My instructions to you are as follows:

Please be sure that under any conditions and for any
    circumstances (whatsoever) that you Mr. Czuma do not (you are not to use) any
    defence of criminally not responsible in defence of my matters.

[23]

Defence counsel
    then stated: So although Im aware that the Crown could raise the issue of not
    criminally responsible at any time, I will not be able to do that. The trial
    judge then asked if Crown counsel was raising the issue of criminal
    responsibility. She said that she was not. However, when the trial judge said
    that he might raise the issue, Crown counsel said that she was content to ask
    for the hearing on the basis of the report. They agreed to schedule the NCRMD
    hearing. The hearing was set for July 27, 2007.

[24]

On July
    27, 2007, Crown counsel stated that she had received information that the
    complainants boyfriend, Mr. Sevelka, had been charged with some offences
    involving weapons and assaults on police officers. Crown counsel stated that
    she wanted to look into the matter further but in the meantime she would call
    the author of the report, Dr. J. Rootenberg.

The NCRMD Hearing

[25]

Dr. Rootenberg
    testified on the hearing that the appellant lacked the capacity to understand
    that his acts were morally wrong by reason of a mental disorder, namely
    alcohol-related dementia. An important consideration for Dr. Rootenbergs
    finding was that the appellant was suffering from a delusion in believing that
    his son was in danger from Mr. Sevelka. In the course of the hearing, Crown
    counsel indicated that she had received information that Mr. Sevelka was now
    facing charges in relation to incidents involving Ms. Mlodzianowska. At the
    insistence of the trial judge, Crown counsel agreed to call Ms. Mlodzianowska
    and Mr. Sevelka on the NCRMD hearing. It was apparent that the trial judge
    wanted to be sure about the facts concerning the initial confrontation at Ms.
    Mlodzianowskas apartment. He considered it important to determine whether the
    appellant really was having a delusion about whether the appellants son was in
    danger from Mr. Sevelka.

[26]

On August
    20, 2007, both Ms. Mlodzianowska and Mr. Sevelka testified about the incident
    at the apartment. Mr. Sevelka in particular confirmed that he had not done
    anything to Robert and that Robert was not calling out for the appellant nor was
    he telling Robert to shut up. Ms. Mlodzianowska testified that Mr. Sevelka
    had never harmed Robert and that he had a good relationship with Robert.

[27]

Mr.
    Sevelka was cross-examined at some length by defence counsel about the
    incidents for which he had been arrested. These incidents occurred in September
    2007, one year after the events involving the appellant. In one incident, Mr.
    Sevelka had an argument with Ms. Mlodzianowska, which led to her leaving the
    apartment with Robert with the assistance of some neighbours. In a second
    incident a few days later, when Ms. Mlodzianowska returned to her apartment
    with police officers, Mr. Sevelka threatened the officers with a chain.  He had
    to be subdued by the officers with a taser. In another incident, Mr. Sevelka
    telephoned a police officer and threatened him. Mr. Sevelka testified that at
    the time of these incidents he was on several medications, including methadone,
    and was also drinking, and that this had led to his erratic behaviour.

[28]

The
    defence did not call any evidence on the NCRMD hearing. Crown counsel then made
    submissions in support of an NCRMD finding. Defence counsel, in his
    submissions, stated that his written instructions were that the appellant did
    not suffer from alcohol-related dementia and was fully aware of what he was
    doing and that he simply overreacted. He suggested that Mr. Sevelkas evidence
    was problematic and therefore the appellants evidence as to what he heard on
    September 2 should not be rejected. He submitted that Dr. Rootenbergs evidence
    did not support an NCRMD finding as it may have been that the appellant was
    simply drunk and not suffering from alcohol-related dementia at the relevant
    times.

[29]

On August
    24, 2007, the trial judge provided two sets of written reasons. The first dealt
    with the trial on the merits and the second set out his reasons for finding the
    appellant not criminally responsible on account of mental disorder.

THE TRIAL JUDGES REASONS

The Threatening and Harassment
    Charges

[30]

The trial
    judge noted that the defence conceded that the threatening charge had been made
    out but argued that the Crown had not proven criminal harassment. This argument
    turned on whether the Crown had proved the requirement in s. 264 of the
Criminal
    Code
that Ms. Mlodzianowska reasonably feared for her safety. The argument
    was based on the fact that Ms. Mlodzianowska had never actually testified that
    she was afraid of the appellant or feared him. Rather, she had talked about
    being annoyed but getting used to it. However, the trial judge noted that the
    complainant also testified that she was tired of the appellant leaving the
    messages, that he was harassing her all the time, and that he could be violent
    and had been violent in the past. When asked whether the appellant was capable
    of carrying out the threats, the complainant testified: I dont know. Hes not
    very stable. The appellant had also physically assaulted the complainant in
    the past and she had gone to shelters before separating from the appellant
    because she was afraid of him. The appellant also interfered with her freedom
    by imposing himself all the time, coming to the apartment drunk, leaving
    abusive telephone messages and repeating the same things over and over.

[31]

The trial
    judge was satisfied that the offence had been made out even though the
    complainant had not actually used the word fear. He reasoned that in the
    context of s. 264, fear for [ones] safety included a state of anxiety or
    apprehension concerning the risk of substantial psychological harm or emotional
    distress, in addition to physical danger or harm.  The trial judge found the
    following facts that established the requisite element of fear for safety:

Having identified the essential ingredient of the criminal
    harassment offence in that way, I think it is obvious that the complainants
    state of mind here that resulted from the accuseds repeated communications
    constituted the requisite reasonable fear for her safety. That she did not use
    the word fear in her testimony is of no consequence, in my view. As Justice
    Cory pointed out in
McCraw
,
supra
at p. 528, people outside the
    legal profession do not generally communicate in the language of the
Criminal
    Code
. What is relevant is whether the necessary inference can be drawn
    from the evidence and whether the requisite finding can be made beyond a
    reasonable doubt. Moreover, I do not think that the fact that the complainants
    state of anxiety and psychological distress was accompanied by a degree of
    concern for the accuseds welfare or sympathy for him because of his own
    unfortunate circumstances negates the fear for her safety that Mr. Szostaks
    conduct caused her.

I accept Ms. Mlodzianowskas evidence that the accused has
    assaulted her in the past and that she has reasonable grounds for a continuing
    concern that he could be violent again, particularly given his alcohol abuse
    and the unpredictable nature of his behaviour when he is intoxicated. I also
    accept her evidence that although she has repeatedly told him to leave her
    alone, and despite violations of probation orders and other court orders
    prohibiting contact with her that have led the police to intervene on past
    occasions, Mr. Szostak has continued to harass her, to cause her to feel that
    she is being stalked in her own apartment building, and to prevent her from
    experiencing the peaceful life, as she put it, to which she is certainly
    entitled.

I am satisfied, then, that the evidence proves beyond a
    reasonable doubt that the accuseds repeated communications caused Ms. Mlodzianowska
    to fear for her safety, in the sense required by s. 264(1), and that her fear
    was, in the circumstances, entirely reasonable.

The NCRMD Finding

[32]

The trial
    judge held that the Crown had satisfied the burden of proof that the appellant
    was not criminally responsible on account of mental disorder. The trial judge
    accepted the evidence of Ms. Mlodzianowska and Mr. Sevelka as to what happened
    at the apartment on September 2 and that the appellants perception of what was
    happening was completely unfounded and derived from his delusional belief
    associated with his dementia. This was not simply the result of a transitory
    state of intoxication but a fixed delusional belief that was a consequence of
    his mental disorder. Because of his beliefs, the appellant felt completely
    justified in his actions, including the telephone calls to the complainant. The
    trial judge accepted Dr. Rootenbergs evidence that the appellants conduct was
    consistent with the disorganized, delusional ideation, typical of
    alcohol-related dementia. He also took into account that there was no evidence
    contradicting that of Dr. Rootenberg. After reviewing cases from the Supreme
    Court of Canada and this court, the trial judge concluded as follows:

In the present case, I am satisfied that Mr. Szostak believed
    that he was justified in threatening Ms. Mlodzianowska with death and in
    repeatedly leaving the abusive phone messages because, in his own mind, given
    his delusional misperception of a danger to his son, he thought he was entitled
    to engage in that conduct in order to protect the child. In the circumstances,
    I find that it has been established, certainly on a balance of probabilities,
    that he was deprived of the ability to rationally evaluate his conduct and to
    know that his death threats and criminal harassment of the complainant were
    morally wrong.

The Fresh
    Evidence

[33]

The
    appellant filed fresh evidence and the Crown filed evidence in response. The
    appellant filed a short affidavit. The two important paragraphs are as follows:

3.       I hired Michael Czuma to represent me. The trial
    started on March 27, 2007. Mr. Czuma talked about my mental health without my
    instructions. I immediately asked Legal Aid for a different lawyer. They did
    not let me change my lawyers.

4.       After I was found guilty, Mr. Czuma tried to get me
    declared Not Criminally Responsible. I did not want him to do this. On July 12,
    2007, I gave him a letter telling him not to do this.

[34]

Crown
    counsel cross-examined the appellant on his affidavit in July 2011. During
    cross-examination, the appellant seemed to resile from some parts of his
    affidavit. Thus, the appellant stated that he was not sure that his counsel
    spoke about his mental health without his instructions. He also said that he
    was upset with his counsel because counsel was not advancing his explanation
    for his conduct, not because counsel was talking about his mental health.

[35]

The
    appellant was then shown his application to Legal Aid Ontario to change counsel
    dated March 28, 2007 (the day after the first trial date). It is apparent that
    someone helped the appellant fill out the application. The reason for the
    application is stated as follows:

[Applicant] felt solicitor did not represent him in court.
    Also, there is a language barrier. App. requires solicitor who speaks Polish.

[36]

It became
    apparent during cross-examination that the appellant had considerable
    difficulty remembering what happened in court. However, he did agree with Crown
    counsel that the first time he told his counsel not to raise the issue of his
    mental health was in the letter that counsel read to the court on July 13,
    2007. The appellant also could not remember that he had retained Mr. Czuma
    to represent him before the Ontario Review Board after the trial judge found
    the appellant not criminally responsible.

[37]

In
    re-examination there was a confusing interchange between the appellant and Mr.
    Snell:

Q.      Did Mr. Czuma ever talk to you about you coming to
    hospital instead of jail?

A.      Something like this did happen.

Q.      And what did you tell him about that?

A.      That I preferred to be at the hospital rather than at
    jail.

Q.      Is that what Mr. Czuma was saying to you?

A..     I think so.

Q.      And in this letter you tell him you do not want that;
    is that right?

A.      I think so.

Q.      Were you upset with him that he thought you should go to
    hospital?

A.      I think so.

[38]

As part of
    the fresh evidence, the appellant filed Mr. Czumas response to the application
    to Legal Aid Ontario to change counsel. In this response, counsel stated that
    he speaks Polish better than the lawyer that the appellant wants to retain. In
    answer to the question, Are your clients expectations and instructions
    reasonable?, counsel wrote:

Client is brain-damaged & hopelessly alcoholic. His
    instructions have never been reasonable.

[39]

In answer
    to the question, What efforts have been made to restore the solicitor client
    relationship?, counsel wrote:

As far as I was aware, the relationship is fine  All it can be
    given Mr. Szostaks mental deficits.

[40]

Counsel
    stated that he was willing to continue to act for the appellant. Legal Aid
    Ontario refused to authorize the change of counsel.

[41]

The other
    proposed fresh evidence concerns the complainants then boyfriend, Mr. Sevelka.
    It will be recalled that Mr. Sevelka testified at the NCRMD hearing. On appeal,
    the appellant sought to introduce a transcript of guilty plea proceedings on
    December 13, 2007. The transcript shows that Mr. Sevelka pleaded guilty to
    several charges, including a charge of assault on the complainant on September
    23, 2007, approximately one month after he testified at the appellants trial.
    The facts read in at the guilty plea proceedings indicate that Mr. Sevelka had
    been taking methadone and anxiety medicine but also drinking. When the
    complainant attempted to leave the apartment with her son, Mr. Sevelka grabbed
    her and tried to pull her back in. The complainant struggled with Mr. Sevelka,
    which allowed her son to leave. Mr. Sevelka had a pair of carpet scissors in
    his hands while he continued to try and pull the complainant back into the
    apartment. The complainant got the attention of some neighbours who tried to
    calm Mr. Sevelka down. The complainant did not want to call the police at that
    time.  However, a week later she attended at a police station because she
    feared an escalation of violence due to drugs and alcohol abuse. The
    complainant returned to her apartment with several police officers. One of the
    officers had to use a taser to subdue Mr. Sevelka when he threatened police
    with a metal chain.

THE ISSUES

[42]

The
    appellant raises the following issues:

(1)

The finding of guilt for criminal harassment was unreasonable as there
    was no evidence that the complainant feared for her safety.

(2)

The NCRMD hearing was fatally
    flawed by procedural errors:

(i)      The
    requirements for a Crown application for an assessment under s. 672.12 were not
    made out;

(ii)
There
    were no grounds for
ordering an
    assessment under                    s.
672.11;

(iii)
The
    trial judge had no jurisdiction to initiate an NCRMD

hearing
    over the objection of the defence.

(3)

The fresh evidence concerning Mr.
    Sevelka should be admitted and shows that the NCRMD finding was unreasonable.

(4)

Irrespective of the fresh
    evidence, the NCRMD finding was unreasonable.

(5)

The appellant was denied the
    effective assistance of counsel because defence counsel put the appellants
    mental condition into issue without instructions. The ineffective assistance
    was manifested by:

(i)

defence counsel failed to remove himself from the record, when the
    appellant requested a change of counsel;

(ii)

defence counsel raised the appellants
    fitness to stand trial in the appellants absence and without instructions;

(iii)

defence counsel had no instructions to
    seek an assessment of the appellants mental condition; and

(iv)

the appellant was denied effective
    assistance of counsel during the NCRMD hearing.

ANALYSIS

The Criminal Harassment Charge

[43]

As was the
    case before the trial judge, the appellant does not take issue with the finding
    of guilt respecting the threatening charge. He does challenge the conviction
    for criminal harassment on the same basis as was done at trial, that the Crown
    had not proven that the complainant feared for her safety as is required for a
    conviction under s. 264. Counsel for the appellant submits that while the
    appellant clearly harassed Ms. Mlodzianowska, the conviction for criminal
    harassment was unreasonable. He submits that the evidence only shows that the
    complainant was tired of the appellants behaviour and that she deserved a
    better life.

[44]

In my
    view, the element of fear is made out by the circumstantial evidence,
    notwithstanding the lack of an express statement by the complainant that she
    was afraid or in fear of the appellant.  The complainant testified to being
    harassed and stalked by the appellant. She referred to prior incidents of
    violence by the appellant and of having to go to womens shelters in the past
    because she was afraid of the appellant. She knew him to be violent and
    unpredictable when he had been drinking and he was frequently drunk as a result
    of his chronic alcoholism. She testified that, I didnt feel safe and felt
    that he has no right to be stalking me in my building. The voice messages left
    by the appellant reinforce his unstable and unpredictable nature. He referred
    to the complainant in extremely degrading terms and threatened to kill her
    should anything happen to their son. Perhaps nothing speaks more clearly to the
    complainants state of mind than the fact that on September 2 she called the
    police to assist her in entering her own apartment. The officer who arrested
    the appellant on that occasion testified that the complainant appeared to be
    frightened. She did not want to go near the accused.

[45]

In my
    view, the trial judge had sufficient evidence to find that the complainant
    feared for her safety. The finding of guilt on that count was reasonable and
    supported by the evidence.

The NCRMD Finding

The Procedural Issues

[46]

The
    appellant submits that the process leading to the finding of NCRMD was flawed
    by procedural errors. His first submission is that it was the Crown that sought
    the assessment and the conditions for obtaining an assessment at the instance
    of the Crown as set out in s. 672.12(3) of the
Criminal Code
were not
    established. I do not accept this submission. The process towards the NCRMD
    finding was set in motion by defence counsels application for an assessment following
    the finding of guilt. The transcript clearly discloses that defence counsel was
    seeking the assessment order. Crown counsel initially opposed the application
    and sought only a pre-sentence report, because she would be asking for a
    substantial term of imprisonment. I will deal with the question whether in
    seeking the assessment, defence counsel provided ineffective assistance below,
    as part of my examination of that issue.

[47]

The
    appellants second submission is that the conditions prescribed in s. 672.11
    for ordering an assessment were not made out. That section allows for making an
    order for an assessment of the mental condition of the accused if the court
    has reasonable grounds to believe that such evidence is necessary to determine
     (b) whether the accused was, at the time of the commission of the alleged
    offence, suffering from a mental disorder so as to be exempt from criminal
    responsibility by virtue of subsection 16(1).

[48]

At the
    time he made the order, the trial judge had the evidence from the complainant
    and the appellant, as well as the transcripts of the abusive and rambling voice
    messages left by the appellant, and he had observed the appellants outbursts
    in the courtroom.  The complainant referred to the appellants bizarre, insane
    statements to her. For example, she testified that the appellant told her he
    was banned from public buses from St. Catherines to Toronto because the bus
    drivers were her lovers. She testified that the appellant was an alcoholic and
    that he had suffered a stroke.

[49]

In my
    view, the requirements of s. 672.11 were made out. That section does not
    require that there be reasonable grounds to believe that the accused actually
    is exempt from criminal liability under s. 16 of the
Criminal Code
; it only
    requires that there be reasonable grounds to believe that evidence of the
    accuseds mental condition is necessary to determine if the accused is exempt
    from criminal liability. There was evidence that the appellant suffered from a
    mental disorder, but an assessment was necessary to determine if that mental
    disorder rendered him incapable of knowing that his acts were wrong.

[50]

Third, the
    appellant submits that it was the trial judge who initiated the NCRMD hearing and
    he had no jurisdiction to do so. I do not need to consider the jurisdiction
    issue since I am satisfied that Crown counsel, not the trial judge, sought the
    NCRMD hearing. She was entitled to do so in accordance with the procedure laid
    down in
R. v. Swain
, [1991] 1 S.C.R. 933.

The NCRMD Finding

[51]

The
    appellants submission that the NCRMD finding is unreasonable relies in part,
    but does not depend, upon the fresh evidence concerning Mr. Sevelka. The
    appellant submits that Dr. Rootenbergs opinion that the appellant did not
    appreciate his acts were wrong was premised on a finding that the appellant was
    delusional in believing that his son was in danger on September 2. The fresh
    evidence supports the appellants version of events and makes it likely that
    his son was calling for help.

[52]

I would
    not admit the fresh evidence concerning Mr. Sevelkas guilty plea. The test for
    fresh evidence as set down in decisions of the Supreme Court of Canada and this
    court can be summarized as follows for the purposes of this case.

1.       The
    evidence should generally not be admitted if, by due diligence, it could have
    been adduced at trial;

2.       The
    evidence must be relevant in that it bears upon a decisive or potentially
    decisive issue;

3.       The evidence must be
    credible; and

4.       The evidence must be
    such that if believed, it could have affected       the result.

See e.g.,
R. v. J.A.A
.,
    2011 SCC 17, [2011] 1 S.C.R. 628, at para. 7.

[53]

In my
    view, the evidence could not have affected the result. Mr. Sevelkas guilty
    plea proceedings concerned events more than one year after the events for which
    the appellant was on trial. There was no evidence that Mr. Sevelka was mixing
    alcohol with drugs on September 2, 2006 or that he represented any kind of
    danger to the appellants son on that date. The proposed fresh evidence does
    not undermine the trial judges finding that the appellant wrongly believed
    that his son was at risk.

[54]

The
    appellant submits that irrespective of the fresh evidence, the finding of NCRMD
    was unreasonable. The trial judge found that the appellant suffered from a
    paranoid delusion that caused him to wrongly believe that his son was at risk
    and that he was accordingly justified in threatening the complainant with death
    and harassing her. The trial judge also accepted that the appellant suffered
    from alcohol-related dementia. The trial judge found that alcohol-related
    dementia is a mental disorder. The appellant does not dispute this finding. The
    trial judge also found that because of this mental disorder the appellant did
    not know that his acts were wrong. The appellant challenges this latter
    finding.

[55]

The trial
    judge referred to the leading cases on the meaning of the phrase rendered the
    person incapable of ... knowing that [the act or omission] was wrong, as found
    in s. 16(1) of the
Criminal Code
. His critical finding applying that law
    is contained in this paragraph from his reasons:

In the present case, I am satisfied that Mr. Szostak believed
    that he was justified in threatening Ms. Mlodzianowska with death and in
    repeatedly leaving the abusive phone messages because, in his own mind, given
    his delusional misperception of a danger to his son, he thought he was entitled
    to engage in that conduct in order to protect the child. In the circumstances,
    I find that it has been established, certainly on a balance of probabilities,
    that he was deprived of the ability to rationally evaluate his conduct and to
    know that his death threats and criminal harassment of the complainant were
    morally wrong.

[56]

I agree
    with the trial judges analysis and his findings. In my view, he properly
    applied the law, particularly as set down in
R. v. Oommen
, [1994] 2
    S.C.R. 507. As in this case, the accused in
Oommen
suffered from
    delusions. The important part of the analysis in
Oommen
as it applies in
    this case is that the inquiry under s. 16(1) as it relates to knowing the act
    was wrong focuses not on a general or abstract capacity to know right from
    wrong but, rather, on the capacity to know whether the particular act was wrong
    in the circumstances. Further, the accuseds delusional belief need not amount
    to an established defence such as self-defence. As McLachlin J. wrote at p. 520
    of
Oommen
:

There is no suggestion in the authorities that the accused must
    establish that his delusion permits him to raise a specific defence, such as
    self-defence. The issue is whether the accused possessed the capacity present
    in the ordinary person to know that the act in question was wrong having regard
    to the everyday standards of the ordinary person.



Thus the question is not whether, assuming the delusions to be
    true, a reasonable person would have seen a threat to life and a need for
    death-threatening force. Rather, the real question is whether the accused
    should be exempted from criminal responsibility because a mental disorder at
    the time of the act deprived him of the capacity for rational perception and
    hence rational choice about the rightness or wrongness of the act.

[57]

In this
    case, the appellant did have a general understanding of the difference between right
    and wrong and even appreciated that his actions were illegal. However, he also
    felt compelled to threaten and harass the complainant to protect his son and
    believed he was justified in taking this course of action. In the words of
    McLachlin J. in
Oommen
, he was deprived of the capacity for rational
    perception and hence rational choice about the rightness or wrongness of his
    acts.

[58]

Put
    another way, the appellant did not know that his acts were morally wrong as
    that concept was explained by Lamer C.J.C. in
R. v. Chaulk
, [1990] 3
    S.C.R. 1303, at p. 1354-56:

Viewed from this perspective, it is plain to me that the term
    "wrong" as used in s. 16(2) must mean more than simply legally wrong.
    In considering the capacity of a person to know whether an act is one that he
    ought or ought not to do, the inquiry cannot terminate with the discovery that
    the accused knew that the act was contrary to the formal law. A person may well
    be aware that an act is contrary to law but, by reason of "natural
    imbecility" or disease of the mind, is at the same time incapable of
    knowing that the act is morally wrong in the circumstances according to the
    moral standards of society.



[T]he insanity defence should not be made unavailable simply on
    the basis that an accused knows that a particular act is contrary to law and
    that he knows, generally, that he should not commit an act that is a crime. It
    is possible that a person may be aware that it is ordinarily wrong to commit a
    crime but, by reason of a disease of the mind, believes that it would be
    "right" according to the ordinary morals of his society to commit the
    crime in a particular context. In this situation, the accused would be entitled
    to be acquitted by reason of insanity.

[59]

Accordingly,
    I would not give effect to this ground of appeal. In my view, the finding of
    NCRMD was reasonable.

Ineffective Assistance of Counsel

[60]

The
    appellants submissions about ineffective assistance of counsel centre on his
    trial counsels actions in making the appellants mental state an issue in the
    proceedings. The appellant submits that his trial counsel acted without
    instructions in putting his mental state in issue even before the trial began
    and again at the end of the trial when counsel sought a s. 672.11 assessment. Counsel
    should have applied to the trial judge to remove himself from the record when
    the appellant sought to change counsel. Finally, counsel should have sought a
    mistrial when he received explicit instructions not to raise the NCRMD defence.
    Counsels actions resulted in a miscarriage of justice since it is clear that,
    but for those actions, NCRMD would never have been an issue in the case.

[61]

The appellant
    also submits that his trial counsel failed to effectively defend against the
    Crowns application to have the appellant found NCRMD. Trial counsel failed to
    seek out a contrary medical opinion and did not effectively cross-examine Dr.
    Rootenberg.

The Test for Ineffective
    Assistance of Counsel

[62]

This
    appeal, in part, presents the issue of ineffective assistance of counsel in an
    unusual context. Some aspects, such as the allegations concerning the actual
    conduct of the NCRMD hearing, are the standard fare of ineffective assistance
    cases. The other allegations  the manner in which the appellants mental state
    was put in issue and the seeking of the assessment at the end of the trial
    without instructions  are different. The submissions in this case thus engage
    both branches of ineffective assistance of counsel as described in
R. v. G.D.B.
,
    2000 SCC 22, [2000] 1 S.C.R. 520, at para. 28:

Miscarriages of justice may take many forms in this context. In
    some instances, counsel's performance may have resulted in procedural
    unfairness. In others, the reliability of the trial's result may have been
    compromised.

[63]

Whether
    the alleged ineffective assistance engages the procedural unfairness or
    reliability branch, the appellant must show that a miscarriage of justice occurred.
    Whichever branch is engaged,
R. v. G.D.B.
instructs, at para. 29, that
    the appellate court should first consider whether prejudice has occurred. Only
    then will the court consider the performance component.

[64]

I have no
    difficulty in concluding that in the general sense the appellant was prejudiced
    by the course of the proceedings. Had the appellant been prosecuted and
    convicted for these offences without reference to his mental state, he would, at
    worst have received a penitentiary term of two to three years, less credit for
    pre-sentence custody. Having been found NCRMD, the appellant was subject to
    indefinite detention until he was no longer a significant threat to the safety
    of the public: see s. 672.54 of the
Criminal Code
. The appellant has now
    been detained in a hospital for five years. The consequences of a finding of
    NCRMD can be so profound that a high degree of procedural fairness and
    scrupulous attention to the rights of the accused are required.

[65]

However,
    prejudice cannot be examined simply at the general level. It is necessary to
    examine each of the allegations made by the appellant to determine whether they
    contributed to a finding of NCRMD that would not have been made but for
    counsels conduct.

The Legal Aid Issue

[66]

One issue
    can be quickly resolved. The appellant submits that when the appellant applied
    to change counsel, defence counsel was bound to apply to have himself removed
    from the record. The chronology is important. The first day of trial was March
    27. On that day, defence counsel raised the question of the appellants fitness
    to stand trial. The trial judge questioned the appellant and satisfied himself
    that there were grounds to believe that the appellant was not fit. A
    psychiatrist conducted a brief assessment and reported that the appellant was
    fit.  All parties accepted that finding and the trial proceeded with the
    examination in chief of Ms. Mlodzianowska. The following day, the appellant
    applied to Legal Aid Ontario to change counsel to another lawyer. I have set
    out the contents of the application and defence counsels response.

[67]

On this
    state of the record, defence counsel was not required to apply to remove
    himself from the record. Whether or not the appellant would be permitted by
    Legal Aid Ontario to change counsel was a matter between the appellant and
    Legal Aid. The fact that Legal Aid refused to grant the application did not
    prevent the appellant from discharging his counsel. From defence counsels
    point of view there was no breakdown of the relationship. There is no evidence
    that the appellant attempted to discharge defence counsel. Over the many
    succeeding dates when the case was before the trial judge, the appellant never
    told the judge that he wanted to discharge defence counsel.

[68]

Finally,
    the cross-examination of the appellant on his fresh evidence affidavit
    demonstrates that the appellants dissatisfaction with counsel leading to the
    application to Legal Aid Ontario concerned counsels conduct in advancing his
    defence on the merits, not his raising the appellants mental state:

Q.      So can I summarize your concern with your lawyer, Mr.
    Czuma, as being because he was not advancing your explanation to the Court?

A.      Yes.

Q.      It was not because he was talking about your mental
    health issues in court?

A.      No. Simply, I expressed  I expressed my objections. 
    The child told me: Daddy help me.

The Fitness to Stand Trial
    Issue

[69]

I am also
    of the view that no question of ineffective assistance of counsel arises
    because defence counsel raised the question of the appellants fitness to stand
    trial. As an officer of the court, counsel was entitled, perhaps even bound, to
    raise the fitness issue. He could not proceed with the trial of a possibly
    unfit client unless that issue was dealt with.  Michel Proulx and David Layton,
    in
Ethics and Canadian Criminal Law
(Toronto: Irwin Law, 2001),

at
    p. 155, deal with the issue as follows:

It may be that, after obtaining expert advice, the lawyer feels
    it necessary to launch a fitness hearing and to present evidence. We believe
    that this drastic step may be justified in limited circumstances. After all, by
    undertaking the conduct of the case in court, the lawyer is arguably implicitly
    representing that the accused is fit to stand trial. Certainly, the lawyer is
    proceeding on the assumption that the client is exercising some level of
    decision making authority within the bounds of a workable professional
    relationship. If the relationship is fractured by reason of real fitness
    issues, nonetheless proceeding to conduct the trial undermines the clients
    autonomy and the proper role of counsel.

[70]

While
    trial counsel apparently did not have expert advice to inform his view that the
    appellant might be unfit, he had acted for the appellant for years and was not
    only aware of his mental state but that it had deteriorated over time. If, as I
    believe it to be the case here, counsel has a good faith basis for doubting his
    clients fitness to stand trial, he is entitled to raise that issue with the
    court. As the Quebec Court of Appeal noted in
R. v. Steele
(1991), 63
    C.C.C. (3d) 149, at pp. 172-73, one of the rationales underlying the law
    relating to fitness is the requirement that accused persons be present for
    their trial. Presence means more than physical presence; it includes the
    capacity to understand the nature of the proceedings.

[71]

I need not
    decide whether counsel is entitled to raise the issue against the wishes of the
    client since on this record the appellant has not shown that he had instructed
    his counsel not to raise the fitness issue.

[72]

I do have
    misgivings about the manner in which defence counsel raised the fitness issue,
    that is, by initiating a dialogue with the trial judge in the absence of the
    appellant, a dialogue that included confidential matters, most particularly what
    the client had told him about the events of September 2 and thereafter. Defence
    counsel should not have disclosed solicitor-client communications without
    instructions from the appellant and should not have raised the fitness issue
    until the appellant had been brought into court. That said, there was no
    suggestion that what took place was part of the trial so as to infringe the
    requirement of s. 650 of the
Criminal Code
that an accused be present
    for the whole of his or her trial. Further, when the appellant did enter the
    courtroom, the subsequent proceedings in his presence provided a reasonable
    basis for concern that he was not fit to stand trial, sufficient for the trial
    judge to direct an assessment.

[73]

In the
    end, the fitness issue was not further pursued and, but for what occurred after
    the finding of guilt, there is no reasonable basis for believing that the brief
    digression while fitness was confirmed had any impact on the subsequent
    proceedings. In other words, the fitness inquiry did not prejudice the
    appellant and it is not necessary to further pursue this aspect of counsels
    performance.

The Request for the Assessment

[74]

In my
    view, counsels request for an assessment under s. 672.12 did prejudice the
    appellant since it set in motion the chain of events that led to the finding of
    NCRMD and indefinite detention. The appellant has established that, but for
    that request, he would simply have been sentenced. The proceedings at the time
    the request was made show that neither Crown counsel nor the trial judge were
    interested in embarking on an inquiry into whether the appellant was NCRMD.
    Crown counsel actively opposed the application for an assessment. She wanted
    the trial judge to order that a pre-sentence report be prepared because she was
    seeking a lengthy prison sentence. The trial judge was naturally concerned
    about the appellants mental state but before defence counsel raised the issue
    of NCRMD, the trial judge was thinking simply in terms of a remand under the
    provincial
Mental Health Act
, R.S.O. 1990, c. M.7, to gather information
    for the purposes of sentencing. Thus, after Crown counsels request for a
    pre-sentence report, the trial judge said:

All right. Is this a case for a regular Pre-Sentence report or
    is it a case where perhaps remand under the
Mental Health Act
because
    the source of your clients difficulties are probably psychiatric in nature, it
    might be of more assistance.

[75]

The trial
    judge no doubt had in mind the holding in
R. v. Snow
(1992), 10 O.R.
    (3d) 109 (Gen. Div.), at pp. 116-17 that while s. 672.12 (formerly s.
    672.11(e)) does not provide for the making of an assessment order for the
    purposes of sentencing, a report for that purpose can be obtained under s. 22
    of the
Mental Health Act
.

[76]

Given the
    finding of prejudice, it is therefore necessary to consider counsels
    performance. In my view, this requires a determination whether counsel required
    instructions to apply for an assessment order and whether the appellant has
    shown that his trial counsel acted without instructions in seeking the
    assessment.

[77]

I should
    begin by saying that I am satisfied that where, as here, the accused is fit,
    counsel is not entitled to advance the NCRMD defence against the wishes of the
    accused. I would go further and hold that counsel must have instructions before
    advancing the NCRMD defence. This control over the defence is a necessary
    consequence of the values of dignity and autonomy that underlie our adversarial
    system.  As Lamer C.J. said in
Swain
, at p. 972:

Given that the principles of fundamental justice contemplate an
    accusatorial and adversarial system of criminal justice which is founded on
    respect for the autonomy and dignity of human beings, it seems clear to me that
    the principles of fundamental justice must also require that an accused person
    have the right to control his or her own defence. The appellant has properly
    pointed out that an accused will not be in the position of choosing whether to
    raise the defence of insanity at his or her trial unless he or she is fit to
    stand trial. If at any time before verdict there is a question as to the
    accused's ability to conduct his or her defence, the trial judge may direct
    that the issue of fitness to stand trial be tried before matters proceed
    further (see Criminal Code, s. 543, now s. 615).
Thus, an accused who has
    not been found unfit to stand trial must be considered capable of conducting
    his or her own defence.

An accused person has control over the decision of whether to
    have counsel, whether to testify on his or her own behalf, and what witnesses
    to call. This is a reflection of our society's traditional respect for
    individual autonomy within an adversarial system. In
R. v. Chaulk, supra
,
I indicated that the insanity defence is best characterized as an exemption to
    criminal liability which is based on an incapacity for criminal intent.
In
    my view, the decision whether or not to raise this exemption as a means of
    negating criminal culpability is part and parcel of the conduct of an accused's
    overall defence.
[Emphasis added.]

[78]

Proulx and
    Layton reach a similar conclusion in their discussion at p. 158. As they say,
    Simply put, defence counsel should not impose his or her views on the client
    in this regard. For the purposes of an inquiry into effective assistance I see
    no distinction between counsel acting against the clients wishes and counsel
    acting without instructions. The constitutional right to control the conduct of
    the defence prevents defence counsel from raising the NCRMD defence against the
    instructions of the client. Minimal standards of effectiveness of performance
    require counsel to inform the client of the options available, including
    possible pleas, possible defences and possible excuses, such as NCRMD. For
    counsel to proceed with a NCRMD defence without instructions is simply a
    demonstration of a failure to provide adequate advice and hence an adequate
    defence. Provided the accused is fit to stand trial, counsel must obtain
    instructions about decisions fundamental to the defence of the case. In my
    view, that includes obtaining instructions as to whether or not to pursue a
    NCRMD defence. Accused persons provided with all the necessary information may
    act irresponsibly and against their own best interests, but that is their
    right.  As this court said in
R. v. Taylor
(1992), 11 O.R. (3d) 323,
    at p. 338:

An accused who has not been found unfit to stand trial must be
    permitted to conduct his own defence, even if this means that the accused may
    act to his own detriment in doing so. The autonomy of the accused in the
    adversarial system requires that the accused should be able to make such fundamental
    decisions and assume the risks involved.

[79]

I
    acknowledge that there is a societal interest in a mentally ill offender not
    being convicted. This interest was expressed by Gonthier J. speaking for
    himself and La Forest J. in
Swain
,
at p. 1038:

This principle [sanity as an essential element to criminal
    responsibility] which is stated in mandatory terms in s. 16 of the
Criminal
    Code
, R.S.C. 1970, c. C-34, pertains to the integrity of the justice
    system itself. While an accused in exercising his right to conduct his defence
    as he sees fit may choose not to invoke this principle, it remains incumbent
    upon the justice system to ensure that it is respected. In other words, even
    though this principle benefits the accused, it is not open to him to deny it [
sic
]
    effect, any more than he is entitled to assume guilt when he is innocent.

[80]

But, as
    that excerpt makes clear, the accused retains the right not to advance the
    defence. Societys interest, to the extent that it is inconsistent with the
    accuseds, is vindicated by Crown counsel assuming the burden of proving that
    the accused was NCRMD.  It is not for defence counsel, however well intentioned,
    to pursue a course of action without proper instructions.

[81]

The
    question remains: did defence counsel have instructions to pursue the NCRMD
    defence? The burden is on the appellant to prove that counsel acted without
    instructions. The record is far from clear on this issue. The appellants
    affidavit is short and equivocal:

After I was found guilty, Mr. Czuma tried to get me declared
    Not Criminally Responsible. I did not want him to do this. On July 12, 2007, I
    gave him a letter telling him not to do this.

[82]

Attempts
    by Ms. Stuart and Mr. Snell at the cross-examination and re-examination to
    clarify the timing of the instructions were not entirely successful. There are,
    in fact, parts of the appellants cross-examination and re-examination that
    support the view that at one time defence counsel did have instructions to
    pursue a NCRMD defence, or at least to put the appellants mental state in
    issue. During cross-examination, the appellant said the following:

Q.      Youre not sure if Mr. Czuma spoke about your mental
    health without your instructions or with your instructions.

A.      Without my instructions.

Q.      But youre not sure about that?

A.      I am not sure.

Q.      Okay.

A.      However, I am certain 80 percent.



Q.       So when you say in your affidavit that Mr. Czuma
    raised your mental health without your consent, because thats what youve said
    there, are you talking about the fact that Mr. Czuma raised concerns that you
    did not understand what was going on, on that day, being the trial?

A.      Yes, yes.

Q.      Thats what you were upset with?

A.      I was upset because of the allegations.

Q.      Of the criminal charges?

A.      Yes, yes.



Q.      Did you tell your lawyer that you were upset that your
    mental health was an issue at your trial?

A.      No. I think so. I dont know.



Q.      And this transcript [of July 13, 2007] shows your
    lawyer reading this letter [of July 12, 2007] to the  into the record at court
    at your trial.  Do you think this was the first time you told your lawyer, Mr.
    Czuma, that you were upset that he was raising your mental health as a concern
    in your trial?

A.      Thats correct.

Q.      Thats the first time you told him this?

A.      Yes.

[83]

And then
    there is the equivocal re-examination set out above, which I repeat here for
    convenience:

Q.      Did Mr. Czuma ever talk to you about you coming to
    hospital instead of jail?

A.      Something like this did happen.

Q.      And what did you tell him about that?

A.      That I preferred to be at the hospital rather than at
    jail.

Q.      Is that what Mr. Czuma was saying to you?

A..     I think so.

Q.      And in this letter you tell him you do not want that;
    is that right?

A.      I think so.

Q.      Were you upset with him that he thought you should go
    to hospital?

A.      I think so.

[84]

There is
    little other evidence to shed light on the issue. We do know that when defence
    counsel had clear instructions not to raise the NCRMD defence, he complied with
    those instructions. Regrettably, counsel were unable to obtain an affidavit
    from Mr. Czuma.

[85]

There is
    no question that in advancing this ground of appeal, the appellant is hampered
    by the impact of his mental illness on his recollection and perhaps even his
    ability to accurately communicate. That said, there is no suggestion that the
    appellant was unfit when he made his affidavit or during the cross-examination.
    Mr. Justice Watt presided over the cross-examination of the appellant on his
    affidavit.  He conducted an inquiry that demonstrated the appellants fitness
    to testify.

[86]

In my
    view, the appellant has not established that his counsel did not have
    instructions to advance the NCRMD defence following the finding of guilt. And,
    as I have said, when those instructions changed, his counsel complied and did
    not pursue the NCRMD defence. Further, counsel actively opposed the Crowns
    attempt to have the appellant found NCRMD.

Counsels
    Performance during the NCRMD Hearing

[87]

In
    my view, the appellant has not shown that he was prejudiced by counsels
    performance during the NCRMD hearing. Counsel opposed the Crowns application
    and cross-examined Dr. Rootenberg and Mr. Sevelka. He brought out those points
    that could lead to a finding that the appellant was criminally responsible, in
    particular, that there was substance to the appellants belief that his son was
    being abused and that the appellant was not delusional.

[88]

Defence
    counsel did not call any expert or other evidence to contradict the Crowns
    case. However, the appellant has not shown that any such evidence existed. No
    attempt was made on the appeal to adduce fresh evidence to show that the
    appellant was criminally responsible at the time he committed the offences.

DISPOSITION

[89]

Accordingly,
    I would dismiss the appeal.

Signed:        M. Rosenberg
    J.A.

I agree E.A.
    Cronk J.A.

I agree H.S.
    LaForme J.A.

Released: MR July 19, 2012


