



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Cotterell, 2013 ONCA 446

DATE: 20130625

DOCKET: C55826

Doherty, Simmons and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Craig Cotterell

Appellant

Erin Dann, for the appellant

Marcella Henschel, for the respondent

Heard and released orally: May 24, 2013

On appeal from the decision of the Summary Convictions
    Appeal Court dated July 9, 2012 by Justice Anne Mullins of the Superior Court
    of Justice, dismissing the appeal from the conviction entered on January 18,
    2007 by Justice J.J. Keaney of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant applies for leave to appeal from
    the decision of a summary conviction appeal court judge dismissing his appeal
    from two not criminally responsible (NCR) verdicts.


[2]

In our view, leave to appeal must be granted and
    this appeal must be allowed.


[3]

The appellant pleaded guilty in the Ontario
    court to three offences: theft under; threatening to use a weapon during an
    assault and uttering a death threat.


[4]

Prior to the pleas being entered the Crown
    requested an assessment to determine whether the appellant was criminally
    responsible. The appellant opposed this request but it was granted nonetheless.


[5]

Despite the appellant's consistent opposition to
    NCR verdicts, and despite the presence of
amicus
, the hearing to determine whether the appellant was NCR proceeded
    virtually as if the issue was uncontested.


[6]

The hearing proceeded on the same day an
    assessment report opining that the appellant suffers from schizophrenia and could
    qualify for an NCR defence was received. Prior to the hearing, and after they
    had an opportunity of reviewing the assessment report, Crown counsel,
amicus
and the trial judge met in chambers.


[7]

The hearing then proceeded in what can only be
    described as a summary fashion.


[8]

The assessment report was admitted as an exhibit
    without comment on whether the author would testify.


[9]

After very brief submissions from counsel and
amicus
, the trial judge invited the appellant to make submissions.
    Although the trial judge told the appellant he was entitled to say anything he
    wished, in essence he directed the appellant to make sentencing submissions on
    the theft under charge.


[10]

The trial judge proceeded to sentencing
    immediately. He found the appellant guilty on the theft under charge based on
    the appellant's conduct in attempting to conceal his activities in the store,
    but entered verdicts of NCR on the assault charge and the uttering threats
    charge based on the assessment report. The charges forming the subject matter
    of the NCR verdicts were referred to the Ontario Review Board without further
    submissions.


[11]

On his appeal to the summary conviction appeal
    court, the appellant raised substantially the same issues he seeks to raise in
    this court: i) he was improperly excluded from the judicial pre-trial; ii)
    given his status as an unrepresented litigant, the trial judge failed in his
    duty to assist him; and iii) the verdicts were inconsistent and unreasonable.

The summary
    conviction appeal court judge rejected these grounds.


[12]

In all the
    circumstances, this is an appropriate case in which to grant leave to appeal.
    The procedural errors alleged, although specific to this case, are sufficiently
    meritorious having regard to the serious impact on the appellants liberty
    interest to justify granting leave.

[13]

In our view, having regard to the appellants
    consistent opposition to an NCR verdict, the trial judge failed to do enough to
    ensure that the unrepresented appellant understood his procedural rights at the
    hearing.


[14]

For example, the trial judge did not inform the
    appellant of his right to testify or to call other evidence, of his right to cross-examine
    the author of the assessment report or of his right to obtain another
    assessment report. The trial judge never raised the possibility of differing
    verdicts on the various charges and he never made clear to the appellant that
    he (the appellant) was entitled to make submissions on the NCR issue. In the
    light of the appellant's position on the NCR issue, it was essential that he
    understand these rights.


[15]

No evidence was adduced before us concerning
    what happened at the in-chambers conference that preceded the appellant's
    guilty pleas. In the absence of such evidence, we are reluctant to draw any
    inferences.


[16]

In our view, however, at a minimum, it was
    incumbent on the trial judge to confirm on the record that such a meeting had
    taken place. Moreover, in the light of the failure of
amicus
to make any statements on the record confirming the appellant's
    position concerning his procedural rights, it was incumbent on the trial judge
    to ensure that the appellant understood those rights.


[17]

We have no doubt that the participants in this
    hearing were motivated by a desire to do what they perceived was in the
    appellant's best interests, and in that regard, they may well have been
    correct. Nonetheless, in all the circumstances, in our view, the criminal
    responsibility hearing was so lacking in an appearance of fairness as to give
    rise to a miscarriage of justice.


[18]

We do not accept the appellant's argument that
    the NCR verdict was unreasonable. In the assessment report, Dr. Pallandi said:

However, his own account is radically
    divergent from that contained in official records where he was behaving in a
    bizarre fashion including using weapons in an unpredictable and clearly
    psychotic fashion.  As such, one would be very concerned about [the appellants]
    self-report as it relates to his mental state at the critical moments.

If one were to ascribe relatively more weight to
    the official or independent version of his mental state at the time of the
    commission of the offences, one would be certainly compelled to believe that he
    would have been unable to know the wrongfulness of his actions, or at least to
    have access to that requisite knowledge given the overall burden of his illness
    that he was experiencing.

In short, although [the appellant] tends to disagree,
    I am of the opinion that he would, in fact, qualify for a defence of Not
    Criminally Responsible on account of Mental Disorder concerning the present
    offences.


[19]

In our view, standing unchallenged, this opinion
    could provide a basis to ground the NCR verdicts.


[20]

The appeal is allowed, the Not Criminally
    Responsible verdicts are set aside and a new trial is ordered.

Doherty
    J.A.

Janet
    Simmons J.A.

G.R.
    Strathy J.A.


