



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Trudel, 2015 ONCA 422

DATE: 20150611

DOCKET: C57792

Blair, Tulloch and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chantal Trudel

Appellant

On appeal from the verdict of not criminally responsible
    on account of mental disorder entered by Justice Lise Maisonneuve of the
    Ontario Court of Justice, dated December 10, 2008.

Chantal Trudel, acting in person

Jill R. Presser,
Amicus Curiae

Deborah Calderwood, for the respondent

Heard: February 11, 2015

Hourigan J.A.:

Overview

[1]

The appellant was found not criminally responsible by reason of a mental
    disorder (NCR) in relation to one count of aggravated assault. With the
    assistance of
amicus curiae
, she appeals. She seeks an order quashing both
    the NCR verdict and the trial judges finding that the
actus reus
of
    the offence was made out. She also seeks a new trial.

[2]

For the reasons that follow, I would dismiss the appeal.

Facts

[3]

According to the complainant, on October 25, 2008, he made arrangements
    with the appellant to have sex with her for $60. He paid her $20 up front. She
    used that money to purchase crack cocaine, which she smoked before the pair had
    sex. The complainant alleged that while they were lying on a futon after having
    sex, the appellant pulled out a knife and stabbed him in the chest, causing two
    wounds. She then fled the complainants apartment.

[4]

Investigating officers noted that there was blood on the futon and in
    other areas inside and outside the apartment. They seized a butcher knife with
    a three-inch blade, which the complainant claimed was used to stab him.

[5]

The complainant told police his attacker was a woman named Chantal. When
    the officers located the appellant, she had blood on her clothing and was
    wearing only one Adidas shoe, which formed a pair with a shoe the officers had
    found in the complainants driveway. The appellant was arrested and charged
    with aggravated assault.

[6]

On October 29, 2008, the appellant, her lawyer Joseph Addelman and Crown
    counsel attended before Fournier J. seeking a criminal responsibility assessment,
    on consent. Justice Fournier made an order for a 30-day NCR assessment. The
    appellant stated on the record that she would rather not go to the hospital
    for 30 days.

[7]

After Fournier J. noted the return date, the appellant inquired if she
    would be able to return home at that time. When Fournier J. replied that it was
    uncertain whether the appellant would be able to go home, she indicated that
    she felt the situation was not fair. The appellant was admitted to the Royal
    Ottawa Mental Health Centre for the 30-day NCR assessment on October 31, 2008.

[8]

On December 10, 2008, the appellant, Richard Addelman, and Crown counsel
    appeared before Maisonneuve J. (as she then was). Richard Addelman is the
    father and law partner of Joseph Addelman. Richard Addelman sought an
    adjournment of the trial to December 17, 2008, since both Joseph Addelman and Dr.
    Booth, the psychiatrist who oversaw the appellants NCR assessment, would be
    available on that date.

[9]

As counsel discussed the adjournment with Maisonneuve J., the appellant was
    attempting to communicate with Richard Addelman. Mr. Adelman told the court: Shes
    actually asking me if there is any way she can go to the hospital today. Crown
    counsel noted that the appellants bed in the hospital had been given to
    another patient when she returned to the Ottawa-Carleton Detention Centre
    following the 30-day NCR assessment, and that there was now a waiting list for
    hospital beds.

[10]

The
    complainant then asked: So next Wednesday when I get sentenced to NCR, Im
    still not going to be going [to the hospital]? Justice Maisonneuve explained
    that this would depend on the availability of hospital beds after the proceedings
    were complete the following week. While the appellant had objected to being
    admitted to the hospital for the NCR assessment in October 2008, her repeated
    inquiries during the December 10, 2008 proceedings suggest she wished to return
    to the hospital at that time.

[11]

Justice
    Maisonneuve then asked whether there was any possibility that the appellants
    trial could proceed later that same day, given that Dr. Booth was in the
    courthouse. Richard Addelman said that while Joseph Addelman was not available,
    he would review the report from the NCR assessment and attempt to get himself
    up to speed.

[12]

Justice
    Maisonneuve explained the change of plans to the appellant, who asked whether
    there would be a hospital bed available for her later that day. Justice Maisonneuve
    responded that there would not, but that moving forward with the proceedings
    later that same day would potentially allow her to get her name on the waiting
    list.

[13]

The
    trial took place that afternoon. Since Richard Addelman conceded that the
actus
    reus
of the offence was satisfied, the focus of the hearing was the NCR
    issue. Dr. Booth testified that in his opinion, the appellant was suffering
    from schizophrenia at the time of the offence, and that as a result, she did
    not know the wrongfulness of her actions. Richard Addelman did not
    cross-examine Dr. Booth, and neither party called any further evidence.

[14]

Justice
    Maisonneuve ruled that the appellant was NCR and explained to her that she
    would eventually return to the hospital. The appellant asked when this would
    occur, and Dr. Booth informed the court that it would likely be within one to
    two weeks. Justice Maisonneuve left the appellants disposition to be
    determined by the Ontario Review Board (ORB).

[15]

Since
    the order of Maisonneuve J., Joseph Addelman has represented the appellant at several
    ORB hearings. She has been unsuccessful in securing a discharge through the ORB
    process.

[16]

The
    appellant filed an application for an extension of time to appeal the order of Maisonneuve
    J. on July 29, 2013. On August 14, 2013, Rosenberg J.A. granted that
    extension.

[17]

The
    appellant filed fresh evidence on appeal, which was admitted on consent. In her
    fresh evidence affidavit she states that she was confused during her appearances
    before Fournier J. and Maisonneuve J.

[18]

The
    appellant claims that neither Joseph Addelman nor Richard Addelman informed her
    that a possible consequence of an NCR finding was indefinite detention in a
    mental health facility. According to the appellant, had she been advised about this
    potential consequence, she would not have consented to the assessment and she
    would have instructed her counsel to oppose the NCR finding.

[19]

The
    appellant says that after the NCR assessment, Joseph Addelman advised her that
    the Crown was seeking a two-year sentence on a guilty plea but that she also
    had the option of going to the hospital. She claims that Joseph Addelman told
    her that if she chose to go to the hospital, she would get out faster. She
    says that during this discussion Joseph Addelman did not warn her about the
    risk of indefinite detention or that she could possibly be detained in a mental
    health facility for longer than the proposed jail sentence.

[20]

The
    appellant claims that Joseph Addelman did not explain to her the legal test for
    an NCR finding. Further, he did not question her about how she felt when Dr.
    Booth was interviewing her or explain that it would be possible to challenge
    Dr. Booths evidence in court. She does not believe that she was shown Dr. Booths
    report. She says that had she reviewed it, she would have pointed out that
    there were many things

wrong
    with the report and would have explained that she had only agreed with Dr.
    Booths suggestions in order to complete the interview as quickly as possible.


[21]

The
    appellant says that at the time of her trial on December 10, 2008 she was so
    confused that she did not realize it was Richard Addelman who had attended court
    instead of Joseph Addelman. Had she been aware that her counsel of choice was
    not available, she claims she would have sought an adjournment.

[22]

Both
    Joseph Addelman and Richard Addelman filed affidavits. Joseph Addelman swears that
    he spoke with the appellant after her arrest and explained the NCR process and its
    consequences. He claims the appellant then instructed him to consent to an
    assessment. He further states that during the appellants NCR assessment period
    he spoke with her on numerous occasions. After receiving Dr. Booths NCR report,
    he says he reviewed it with the appellant and she did not dispute Dr. Booths
    findings. He says he repeated the possible consequences of an NCR finding to
    the appellant at that time.

[23]

According
    to Joseph Addelman, on both December 7 and 8, 2008, he spoke with the appellant
    and explained to her that she would be under the authority of the ORB if an NCR
    order was made. He says that during the December 8, 2008 consultation he
    specifically told her that the ORB might never allow her to live in the
    community unsupervised. He also states that he again reviewed Dr. Booths
    report with the appellant, and again she did not identify any issues. He states
    that the appellant instructed him not to oppose the Crowns request for an NCR
    finding.

[24]

Richard
    Addelman states in his affidavit that he attended court on December 10, 2008
    with the intention of adjourning the hearing. His understanding was that the appellants
    case would ultimately proceed by way of an NCR finding on consent and that the
    appellant was fully apprised of how her trial would proceed. He states that he
    had met the appellant in the past and that she knew him.

[25]

According
    to Richard Addelman, during the trial the appellant did not express any
    concerns about Dr. Booths report or his testimony. He says that had the
    appellant shown the slightest sign of confusion he would have adjourned the
    hearing. He concedes that he did not provide any advice to the appellant about
    whether to proceed with the NCR verdict.

[26]

Neither
    Joseph Addelman nor Richard Addelman made any notes of their discussions with
    the appellant.

Positions of
    the Parties

[27]

The
    appellant submits that the NCR finding was a miscarriage of justice and that a new
    trial should be ordered. She advances two grounds of appeal.

[28]

First,
    she argues that she was provided with ineffective assistance of counsel. This
    argument is based on her claim that counsel failed to ensure that when she
    consented to the NCR finding she understood the possibility she could be
    indefinitely detained. She was prejudiced by this failure because she would
    have resisted the NCR verdict had she understood its consequences. Further, she
    argues there is a reasonable possibility that the outcome of the trial would
    have been different had she opposed the NCR verdict.

[29]

Second,
    in the alternative, the appellant submits that she should be permitted to
    withdraw her consent to the NCR finding because she did not understand that she
    could be detained indefinitely when she gave this consent.
Amicus curiae
argues that this situation is analogous to the withdrawal of a guilty plea. Counsel
    argues that because the appellants consent was not informed, the verdict
    should be set aside and a new trial ordered.

[30]

On
    the first ground of appeal, the Crown submits that the appellant has not met
    her onus to establish ineffective assistance of counsel. There is, in the
    Crowns view, no evidence upon which this court can conclude that the outcome
    of the NCR hearing could reasonably be expected to have been different had the
    appellant contested the NCR verdict. Therefore, the appellant has not
    established prejudice. Moreover, even if prejudice could be established, this
    ground of appeal also fails on the performance prong of the analysis since
    there is no evidence that counsel for the appellant acted incompetently.

[31]

With
    respect to the second ground of appeal, the Crown rejects the contention that consent
    to an NCR finding is analogous to a guilty plea. The Crown bases this
    distinction on the fact that the accuseds consent is not a prerequisite to an
    NCR finding.

Analysis

(i) Ineffective Assistance of Counsel

[32]

The
    analysis of a claim of ineffective assistance of counsel proceeds upon a strong
    presumption that counsels assistance was competent:
R. v. G.D.B.
,
    2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27.

[33]

The
    onus is on the appellant to rebut this presumption by establishing both that
    counsel was incompetent and that this incompetent assistance resulted in a
    miscarriage of justice:
R. v. L.C.T.
, 2012 ONCA 116, 252 C.R.R. (2d)
    223, at para. 37.

[34]

Before
    the court will assess competence, however, the appellant must demonstrate she suffered
    prejudice:
G.D.B.
, at para. 29. Where the alleged prejudice relates to
    the reliability of the verdict rather than procedural fairness, like in this
    case, the accused must demonstrate there is a reasonable possibility that the
    result would have been different but for the alleged incompetence:
R.

v.

Dunbar
, 2007 ONCA 840, at para. 23
.

[35]

If
    the appellant has not met her onus on the issue of prejudice, it is undesirable
    and unnecessary for the court to consider the performance component of the
    analysis:
G.D.B.
, at para. 29.

[36]

Amicus
    curiae
did not submit that there was any expert evidence available at the
    time of trial or now that would suggest the appellant was not NCR at the time
    of the offence. Her submissions focussed on the failure of Richard Addelman to
    cross-examine Dr. Booth.

[37]

Specifically, she noted that Dr. Booths report referenced
    three versions of the offence as recounted by the appellant. According to
amicus
    curiae
, only one of these

versions
    of events  the second version  supported an NCR finding. In the second version
    the appellant admitted to attacking the complainant. She said she heard voices
    that led her to believe the complainant had killed her friend. As a result, she
    stabbed him.
Amicus curiae
submits that had Dr. Booth been
    cross-examined on his preference for the second version and had either the
    first or third version of events been advanced instead, the appellant may well
    have been acquitted of the offence or convicted without an NCR finding.

[38]


Amicus curiae
also argues that Dr. Booths report
    reveals potentially fruitful grounds for cross-examination because the report
    notes that the appellant denied experiencing psychiatric symptoms and was
    anxious to end the interviews. Further, the appellants delusional beliefs and
    auditory hallucinations were only disclosed following repeated questioning.

[39]

I would not give effect to these arguments.

[40]

In the first version of events proffered by the appellant in
    Dr. Booths report, she denied that she had stabbed anyone and that she knew
    the complainant. She also denied having any psychiatric symptoms. Given the
    physical evidence discovered by the police, the identification evidence provided
    by the complainant and the trial judges finding that the
actus reus

of the offence was established beyond a reasonable doubt, there is no
    reasonable possibility that the court would have accepted this bald denial by
    the appellant.

[41]

In
    the third version of events, the appellant said that the complainant had raped
    her and that she stabbed him because she was angry with him. She initially denied
    that she was experiencing any auditory delusions at the time of the offence but
    when pressed by Dr. Booth she reluctantly agreed she had been hearing voices.
    The appellant went on to clarify that she felt like she had been raped but
    acknowledged that she had agreed to have sex with the complainant. She said she
    regretted it afterward and admitted that she stabbed him.

[42]

I
    am not satisfied that had this third version of events been advanced at the
    trial there is a reasonable possibility that the outcome would have been
    different. The appellants claim that she was sexually assaulted was undermined
    by her subsequent clarification. Further, in this version of events, as in the
    version accepted by Dr. Booth, the appellant admitted that she was hearing
    voices at the time of the offence.

[43]

I
    also agree with the submission of the Crown that the potential areas of
    cross-examination identified by
amicus curiae
are entirely
    speculative. Dr. Booth is an experienced forensic psychiatrist with a
    history of treating the appellant. His report is reasonable and rooted in the
    evidence. It is also entirely consistent with the evidence of the appellant on
    this appeal that when she used drugs she often believed that people were
    trying to rob, beat or kill me or others around her and that on the day of
    the offence she was feeling unwell and confused. The fact that the appellant was
    reluctant to admit to experiencing auditory delusions is hardly surprising and
    does not cast any doubt on Dr. Booths findings.

[44]

There
    is nothing in the potential areas of cross-examination to support a finding that
    there is any reasonable possibility the result would have been different had
    Dr. Booth been cross-examined. This is especially so given that the appellant
    was not in a position to offer competing expert evidence that she was not NCR.

[45]

The
    appellant has not met her onus of establishing prejudice. As a result, her
    ineffective assistance of counsel ground of appeal must fail. It is not necessary
    to consider the performance prong of the analysis.

(ii) Withdrawal of
    Consent

[46]

In
    her second ground of appeal, the appellant argues that consent to an NCR
    finding is equivalent to a guilty plea, and that, consequently, the trial judge
    must be satisfied that the accused understands the nature of the NCR verdict.

[47]

On
    a guilty plea, the court and/or counsel undertake a plea inquiry, the focus of
    which is to determine whether the plea is voluntary and informed. This court
    has held that the
Charter

does not require that judges conduct
    this exact same inquiry before entering a verdict of NCR:
R. v. Quenneville
,
    2010 ONCA 223, 207 C.R.R. (2d) 360, leave to appeal to S.C.C. refused, [2010]
    S.C.C.A. No. 409.

[48]

It
    is unclear from the reasons in
R. v. Ohenhen
,
2008 ONCA 838, which is relied upon by
    the appellant, whether the panel was endorsing a guilty plea type test for the
    withdrawal of consent to an NCR finding. It appears that such a test was
    suggested to the court by Crown counsel. However, the court did not consider this
    issue in detail because it concluded there was no evidentiary basis to undermine
    the consent.

[49]

Although
    not cited by counsel, there is additional authority in this court for the
    proposition that, in certain circumstances, a trial judge should inquire into
    an accuseds understanding of an NCR verdict.

[50]

In
R. v. P.A.
, 2011 ONCA 673, at para. 8, this court held that the trial
    judges failure to explain the implications of an NCR assessment to the
    accused constituted a reversible error. The reasons do not address the facts
    surrounding this error in further depth. I note that this was only one example
    in a long list of errors identified on appeal, which also included a complete
    lack of evidence supporting the NCR verdict and serious procedural
    deficiencies.

[51]

In
R. v. Williams
, 2012 ONCA 695, the court ordered a new trial where the
    trial judge did not conduct a plea inquiry to determine whether the appellants
    guilty pleas were voluntary. After the finding of guilt, the trial judge
    granted the Crowns application to have the appellant declared NCR. This court
    held that the trial judge was also required to undertake an inquiry to ensure
    the appellant understood the consequences of an NCR finding.

[52]

In
    my view, the circumstances of the present case

can be distinguished from
P.A.

and

Williams
.
First, this

is not a
    case that involves other significant procedural deficiencies, such as the
    violations of s. 606(1.1) of the
Criminal Code
, R.S.C. 1985, c. C-46,
that were found in both
P.A.

and
Williams
.

[53]

Second,
    there was no evidence that the appellant, like the accused in
Williams

and in
P.A,
did not understand the consequences of the NCR verdict
     or that her consent was not voluntary or informed at the time it was given
.
On the contrary, the appellants clear statement at her December 10, 2008 court
    appearance that she wished to return to the hospital is consistent with the
    conclusion that she fully understood the implications of the NCR verdict and
    was making a conscious decision to obtain treatment in a hospital rather than
    go to jail. Further, unlike in
Williams
, where there was uncertainty
    regarding the accuseds fitness at the time of his guilty plea,

the
    appellant in this case was fit to stand trial, which indicates that she
    understood the nature and object of the proceedings and their possible
    consequences:
Quenneville
, at para. 19.

[54]

This
    case is more similar to
Ohenhen

than to
Williams

and
P.A.

Like in
Ohenhen
, the record demonstrates that the
    appellant requested the NCR verdict and understood its nature and consequences.
    While it may have been preferable had she done so, in these circumstances,
    there was sufficient evidence for the trial judge to be satisfied that the
    appellant fully understood the implications of an NCR finding without
    conducting further inquiries.

[55]

In
    any event, this ground of appeal is simply a recasting of the appellants first
    argument. The appellant is again arguing that she did not understand she could
    be detained indefinitely. In my view, this argument is properly advanced as
    part of an ineffective assistance of counsel claim and, for the reasons set out
    above, I would not give effect to this argument.

Disposition

[56]

For
    the foregoing reasons, I would dismiss the appeal.

Released: June 11, 2015 RAB

C.W.
    Hourigan J.A.

I
    agree R.A. Blair J.A.

I
    agree M. Tulloch J.A.


