





CITATION:
R. v. Guidolin, 2011
          ONCA 264



DATE: 20110411



DOCKET: C51566



COURT OF APPEAL FOR ONTARIO



Doherty, LaForme and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Daniel Guidolin



Appellant



Daniel Guidolin, appearing in person

Daniel Medd, as
amicus
          curiae

Benita Wassenaar, for the respondent



Heard:  March 21, 2011

On appeal from the finding of Justice
          Lauren Marshall of the Ontario Court of Justice on December 12, 2007
          declaring the appellant not criminally responsible on account of mental
          disorder.

Doherty J.A.:






I

Introduction

[1]

In June of 2007, the appellant confronted two
    women as they walked away from a bank machine.  He grabbed for the money in the hand of one of the women.  A struggle ensued.  The appellant managed to overcome the victim,
    take the money ($240.00) and flee the scene on a bicycle.  The incident was videotaped on the banks
    surveillance equipment.  Two days later,
    the police arrested the appellant after a brief struggle.  He was charged with one count of robbery and
    two counts of resisting arrest.

[2]

The appellant, who has an extensive criminal
    record stretching back over decades, was ordered detained pending trial.  While in custody, his fitness to stand trial
    was questioned and a psychiatric assessment was ordered.  The appellant was found unfit and a treatment
    order was made.  He was subsequently
    determined to be fit to stand trial.  He
    was held in a psychiatric facility from August 2007 to December 2007.

[3]

On December 12, 2007, the appellant, who was represented
    by counsel, advanced a not criminally responsible on account of mental disorder
    plea (NCRMD).  The Crown did not oppose
    that plea.  The parties agreed that the
    report of the psychiatrist, Dr. McDonald, would suffice and he was not required
    to give evidence.  The trial judge also
    heard a brief agreed upon description of the underlying offences.  She concluded that the appellant had
    established the NCRMD claim and remanded him to the jurisdiction of the Ontario
    Review Board (the Board) for disposition.  The appellant has been detained under orders of the Board since then.

[4]

The appellant was granted an extension of time
    to appeal the NCRMD finding in January 2010.  The perfection and hearing of the appeal were delayed for various
    reasons, including some concern with respect to the appellants fitness to
    instruct counsel.

[5]

At the hearing of the appeal, Mr. Medd, who had
    formerly represented the appellant, appeared as
amicus
.  The appellant
    appeared on his own behalf.

[6]

Mr. Medd submits that on the material placed
    before the trial judge, and in particular the psychiatric report of Dr.
    McDonald, the NCRMD verdicts were unreasonable.  He contends that this court should set aside those verdicts and enter
    convictions on the charges pursuant to s. 686(4) of the
Criminal Code
.  Mr. Medd
    further submits that this court should impose sentence, and that if possible
    the sentence should require the appellant to remain in the psychiatric facility
    at Whitby for some brief time to facilitate the appellants transition back
    into the community.

[7]

In his submissions, the appellant told the court
    that he agreed with Mr. Medd that the NCRMD verdicts should be set aside.  He was content that a conviction be entered
    on the robbery charge, but insisted that he had not assaulted the police and
    was not prepared to agree to convictions on those two charges.  The appellant told the court that he thought
    he was prepared to be released immediately and that he had plans to connect
    with various family members, including his elderly mother.

[8]

Ms. Wassenaar, for the Crown, submits that the
    psychiatric evidence was sufficient having
regard
to
    the agreement of the parties that NCRMD verdicts were appropriate.  Alternatively, she submits that if the
    verdicts are set aside, this court should enter convictions on all charges and
    impose a sentence in the mid-single digit penitentiary range.  The appellant has spent about three years and
    eight months in custody, most of it in maximum security psychiatric facilities.

II

Is the NCRMD Verdict Unreasonable?

(i)

The courts approach

[9]

A person found NCRMD may appeal on the basis
    that the finding is unreasonable or cannot be supported by the evidence:  s. 686(1
)(
a).  The reasonableness standard, like that
    applied to conviction appeals, requires that the appellant demonstrate that a
    trier of fact, acting reasonably and properly applying the law, could not have
    arrived at an NCRMD verdict:
R. v. Fraser
(1997), 33 O.R. (3d) 161 at
    p. 167 (C.A.).

[10]

The argument that the NCRMD verdicts were
    unreasonable raises an unusual problem in this case.  It was the appellant, through counsel, who
    raised the NCRMD claim at trial.  He
    carried the burden of proof on the balance of probabilities:  s. 16(3).  Having succeeded at trial, the appellant now finds himself claiming that
    the trial judge acted unreasonably in finding that the appellant had met his
    burden and established the NCRMD claim on the balance of probabilities.

[11]

There is no absolute bar preventing the
    appellant from challenging the NCRMD finding even where it was the appellant
    who raised the claim at trial.  However,
    finality concerns, as well as the need to preserve the effective operation of
    the mental disorder provisions in the
Code
,
    require that the court look very closely at any attempt to resile by way of
    appeal from an NCRMD verdict sought at trial.  The appellant has been under the jurisdiction of the Board for several
    years now.  They have made dispositions
    based on their expertise as applied to current psychiatric information.  Entertaining an appeal against an NCRMD
    verdict where the claim was advanced by the defence effectively allows that
    individual to circumvent the Boards ongoing jurisdiction and requires this
    court to make a disposition that does not have regard to the psychiatric and
    treatment developments that have occurred in the years between the NCRMD verdict
    and the hearing of the appeal.

[12]

When approaching an argument that an NCRMD
    verdict is unreasonable, where it was the appellant who sought that verdict at
    trial and the Crown agreed that the verdict was appropriate, this court should have
    regard to the position of the appellant and the consensual nature of the
    proceedings when assessing the adequacy of the material before the trial
    judge.  One can hardly expect that the
    medical opinion evidence will contain the detail that would be found in a
    contested proceeding, or that the medical evidence will answer all of the questions
    that could possibly have been raised had the matter been contested.

[13]

While acknowledging that the position of the
    defence at trial and the consensual nature of the proceedings are relevant to
    the reasonableness assessment, if on a generous reading of the evidence, the
    NCRMD finding cannot pass the reasonableness standard, that finding cannot
    stand regardless of the negative impact an order setting it aside may have on
    the appellants treatment and the protection of the public.

(ii)  The reasonableness of the verdicts


[14]

Section 16(1) provides:

No person is criminally responsible for an act
    committed or an omission made
while suffering from a mental disorder that
    rendered the person incapable of appreciating the nature and quality of the act
    or omission or of knowing that it was wrong.
[Emphasis added.]

[15]

There was ample evidence that the appellant
    suffers from a longstanding and serious mental disorder.  In his report, Dr. McDonald diagnosed him as
    having:

·

a schizoaffective psychosis;

·

polysubstance abuse; and

·

an
antisocial
    personality disorder.

[16]

There was also ample evidence that the
    appellants mental disorder was in all likelihood causative of his criminal
    conduct.  Further, his long criminal
    record, as well as Dr. McDonalds opinion, was evidence of his potential
    dangerousness.

[17]

However, as Mr. Medd correctly observes, s. 16
    is not triggered merely because an accused suffers from a mental disorder that
    is causative of criminal conduct, even if that disorder renders the accused a
    danger to the public.  The mental
    disorder can constitute a defence under s. 16 only if it has one of two
    effects.  It must either render the person
    incapable of appreciating the nature and quality of the act or render the
    person incapable of knowing that the act was wrong.  In this case, the NCRMD claim was based on
    the assertion that the appellants disorder rendered him incapable of knowing that
    his criminal conduct was wrong.

[18]

The meaning of wrong in the context of s. 16
    was explained in
R. v. Oommen
, [1994]
    2 S.C.R. 507, at p. 520:

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.

[19]

Nothing in the brief recitation of the facts
    surrounding the offences provided to the trial judge offered any support for
    the claim that the appellant did not know his conduct was wrong.  The viability of the NCRMD verdict turned
    entirely on Dr. McDonalds report.  As
    indicated earlier, the parties did not require him to give
viva voce
evidence.  The
    question becomes: do the contents of the report reasonably support a finding
    that the appellant, when he committed one or more of the offences, was
    incapable of knowing that what he was doing was wrong in the sense described
    in
Oommen
?

[20]

There are three potentially relevant passages
    from Dr. McDonalds report:

[1
]  At
this point I would regard Mr.
    Guidolin as Fit to Stand Trial.  I will
    comment on this point on the issue of criminal responsibility or lack
    thereof.
I am rather lukewarmly
    persuaded that this man qualifies, at least marginally, for a non-criminal
    responsibility finding.  This is not
    because he has no capacity to recognize the wrongfulness of his actions or
    specifically the most recent act of robbery, indeed he can, but he is
    substantially morally indifferent,
dismissively remarking at one point,
    All I did was grab the money.  When
    advised that the event in question had been recorded on video tape, he
    commented with some indignation, They had a camera?  But it was off hours!
.
He even acknowledged that he needed the money
    to buy drugs, as has his been his long term habit.  Despite making such obvious inculpatory
    remarks, he was substantially evasive on many topics, as if acutely sensitive
    to the possibility of making his situation worse by talking about it.

This is the logical lead-in to the only possible
    way of seeing this mans actions as falling within the NCR rubric, i.e. he is
    often acutely psychotic, delusional, disorganized, and unable to exercise the
    judgment of a normal person
(Oommen).  While he does have significant antisocial tendencies of longstanding and
    has a long criminal record going back many years, he also has a major psychotic
    disorder which is predictably aggravated by his substance abuse.

...

[2
]  Perhaps
the most relevant remarks he
    ever made about what might have been going on in his head at the time of the
    most recent robbery are the following: They seem to know ... that I need money ... thats what drove me to do
    it ... I tried to ignore them, but mom not there, I was in dire need ... I was
    arrested a couple of days later ... my picture was on TV.
It appeared that he was making references
    to auditory hallucinations, and he seemed to be suggesting that these had
    something to do with his committing the offence of robbery, but his account was
    disorganized and difficult to interpret.

...

[3
]  Although
the psychiatric picture with
    this man is a mixed one with a significant antisocial component,
I would
    support his candidacy for non-criminal responsibility status and would further
    remark that his manageability in the community without such disposition is
    totally unrealistic given his behavioural history.
[Emphasis added.]

[21]

In my view, nothing in the report provides a
    reasonable basis upon which an NCRMD verdict could be returned.  The first passage contraindicates an NCRMD
    verdict.  Dr. McDonald appears to accept
    that the appellant has the capacity to recognize the wrongfulness of his act,
    but simply does not care.  That state of
    mind does not constitute a defence under s. 16:
Oommen
at p. 521;
R. v. J.M.W.
(1998), 123 C.C.C. (3d) 245
    at para. 32 (B.C.C.A.).

[22]

In the first passage quoted above, Dr. McDonald also
    opines that the appellant is unable to exercise the judgment of a normal
    person (
Oommen
).  If this is intended as a description of the
    meaning of the word wrong from
Oommen
,
    the doctor has misunderstood that case.  The inability to exercise the judgment of a normal person is a long
    way removed from the incapacity to know that ones actions are wrong according
    to the normal standards applicable in the community.

[23]

There are references to auditory hallucinations
    in the second passage from Dr. McDonalds report.  Hallucinations can sometimes precipitate a valid
    s. 16 defence.  However, Dr. McDonald was
    not prepared to go any further than to indicate that the appellant seemed to
    be suggesting that his auditory hallucinations had something to do with his
    commission of the offences.  This is not
    an assertion that the appellant acted under the influence of any hallucination.

[24]

The final passage in Dr. McDonalds report is
    perhaps the best indication of the basis upon which he supported the NCRMD
    claim.  Dr. McDonald was obviously
    concerned about the appellants manageability in the community and saw the
    NCRMD verdict as the best way to protect the community and hopefully offer the
    appellant some treatment. While that approach is understandable from the
    perspective of the psychiatric clinician, it is not a proper basis in law for
    an NCRMD verdict.

[25]

In my view, there was no basis upon which a
    reasonable trier of fact could conclude that the NCRMD claims had been made out
    on the balance of probabilities.  Those
    verdicts must be set aside.

III

The Appropriate Remedy

[26]

The appellant,
amicus
, and Crown counsel all agreed that if the NCRMD verdict on
    the robbery charge was set aside, this court should substitute a conviction on
    the robbery charge pursuant to s. 684(4).  I think that is the proper order.  There is no doubt that the appellant committed the robbery.  Clearly, he would not raise an NCRMD defence
    if the matter was remitted for a new trial.  More importantly, the Crown has not suggested that it has any basis upon
    which to seek an NCRMD finding.  In those
    circumstances, an order entering a conviction on the robbery charge is the only
    appropriate order.

[27]

The appellant opposes convictions on the
    resisting arrest charges.  He advised
    this court that he did not commit those offences.  At trial, when asked to plead, it appears
    that the appellant was trying to make a distinction between the robbery charge
    and the resist arrest charges when he was interrupted by the trial judge and
    the proceedings were continued without the entry of any formal pleas.  The appellant is entitled to his day in court
    on the resist arrest charges if the Crown chooses to pursue those matters.  I would set aside the NCRMD verdicts on those
    counts and order a new trial on those charges.

IV

The Appropriate Sentence

[28]

In oral argument, Crown counsel and
amicus
agreed that this court should
    impose the appropriate sentence on the robbery charge.  At the end of oral submissions, the court
    reserved judgment and invited further written submissions from counsel on the
    assumption that the court might set aside the NCRMD verdicts.  Crown counsel and
amicus
have spoken with the personnel at the psychiatric facility
    where the appellant is being held and have provided helpful and detailed analyses
    of the available sentencing options as they see them.

[29]

Crown counsel, having had the opportunity to
    consider the question of sentence in more detail, has changed her position
    since oral argument.  She now submits the
    court should remit the matter to the trial judge for sentencing on the robbery
    conviction.  In her submission:

The trial court is better positioned to determine
    what resources are available and how they can be accessed.

[30]

Crown counsel anticipates that if sentencing is
    remitted to the trial judge, the appellant will be sentenced in late April or sometime
    shortly thereafter.  Counsel submits that
    the appellant could be released on bail pending his appearance in the trial
    court on the condition that he continue to reside in the psychiatric facility
    where he is presently being held.  Presumably, this would give the personnel at the facility the
    opportunity to assist the appellant in formulating a release plan.

[31]

Crown counsels suggestion is sensitive to the
    mental health problems faced by the appellant and the risk that he might pose
    were he immediately and unconditionally released into the community.

[32]

Like Crown counsel,
amicus
is very much aware of the challenges that the appellant
    presents to the sentencing process.  He
    submits, however, that no purpose would be served by remitting sentencing to
    the trial judge.  He also argues, based
    on his understanding of the relevant authorities, that no term of
a probation
order or conditional sentence could be imposed
    requiring the appellant to submit to the treatment regime of the psychiatric
    facility.  The appellant has indicated to
amicus
that he is opposed to any
    order that would require him to submit to treatment.
Amicus
takes the position that the appellant has effectively served a longer sentence
    than is merited by the offence.  He
    submits that while time served is not an available sentence for technical
    reasons, the appellant should not be punished any further.
Amicus
submits that it would be appropriate to place the appellant on probation for a
    short time period and only on the statutory probationary terms.

[33]

Having set aside the NCRMD verdict and entered a
    conviction on the robbery charge, the penalty to be imposed on the appellant
    must comply with the requirements of Part XXIII of the
Criminal Code
.  First and
    foremost in this case, the sentence must be proportionate to the gravity of the
    offence and the offenders responsibility:  s. 718.1.  A sentence which is not
    proportionate cannot be imposed even if, because of the appellants mental
    health problems, that sentence would benefit both the community and the
    appellant.

[34]

The appellant has spent about 44 months in
    custody since his arrest on these charges.  He has been detained in a psychiatric facility for all but the first few
    months of that time period.

[35]

The robbery conviction is a serious one.  I am sure the victims were terrified.  The appellant has a lengthy record, although
    most of the record involves property related crimes.  He has not been previously sentenced to a
    period of incarceration in the penitentiary.  Nothing in the psychiatric material that was before the trial judge would
    provide any grounds for mitigating the sentence.  Had the appellant pled guilty to robbery, a
    penitentiary sentence would have been an appropriate disposition under the
    sentencing principles and objectives outlined in Part XXIII of the
Code
.

[36]

Without attempting to fix a precise number as
    the appropriate credit for the appellants incarceration since his arrest, I
    am satisfied that the time he has spent in custody exceeds the time he would
    have been incarcerated had he pled guilty to the robbery charge in December
    2007 and received an appropriate sentence.  No further incarceration can be justified on any applicable sentencing
    principle.  Nor would any purpose be
    served by a probation order.

[37]

It may well be that the appellant should remain
    in a psychiatric facility.  However, to
    achieve that end, the authorities will have to look to the civil commitment
    process.

[38]

Any sentence that this court imposes on the
    robbery charge commences when that sentence is pronounced.  Consequently, a sentence of time served cannot
    be imposed.  Having regard to the time
    spent in custody and the nature of the offence and to ensure compliance with
    the technical requirements of the
Criminal
    Code
, I would impose a sentence of one day on the robbery charge: see
R. v. Mathieu
, [2008] 1 S.C.R. 723 at
    paras. 17-18.

V

Conclusion

[39]

I would allow the appeal, set aside the NCRMD
    verdicts on all counts, enter a conviction on the robbery charge, and direct a
    new trial on the resist arrest charges.  On
    the robbery charge (bearing in mind the three years and eight months spent in
    custody), I would impose a sentence of one day.

RELEASED:
DD  APR 11
    2011

Doherty J.A.

I agree H.S. LaForme
    J.A.

I agree G.J. Epstein
    J.A.


