





CITATION:
R. v. Krivicic, 2011 ONCA 703



DATE: 20111114



DOCKET: C50605



COURT OF APPEAL FOR ONTARIO



Blair, Juriansz JJ. A. and Pepall J. (
ad hoc
)



BETWEEN



Her Majesty the Queen



Respondent



and



Elvis Richard Krivicic



Appellant



Elvis Richard Krivicic, acting in person



Paul Burstein, as
amicus curiae

Alexander Alvaro, for the respondent



Heard: October 26, 2011



On appeal from the verdict of not criminally responsible by
          reason of mental disorder entered by Justice Gary F. Hearn of the Ontario
          Court of Justice dated February 27, 2007.



Pepall J. (
ad hoc
):



A.

Introduction

[1]

The central issue on this appeal is whether the trial judge made an
    error in law by failing to adequately consider the appellants fitness to stand
    trial.

[2]

On February 27, 2007, the appellant entered guilty pleas to a single
    count of criminal harassment and two counts of failure to comply with his
    recognizance of bail.  He was found not criminally responsible on account of a
    mental disorder (NCR).  Since that time, he has been in custody at a mental
    health care facility.

[3]

The appellant filed an appeal against his conviction and sentence and
    challenged the NCR finding.  The appellant asserts his innocence and submits
    that he has been denied due process and a right to a trial.

[4]

After the appellant had discharged a number of appellate counsel, this
    court appointed Mr. Paul Burstein to act as
amicus curiae
on the appeal.
     He advised the court that the appellant, who was present in court for the
    appeal, does not accept that he suffers from a mental disorder and opposes the
    submissions of
amicus
.

[5]

Relying on s. 686 (1)(a)(ii) of the
Criminal Code
, R.S.C., 1985,
    c. C-46, a
micus
submits that the trial judge erred in law by failing to
    make necessary inquiries on whether to hold a fitness hearing and, relying on
    s. 686 (1)(a)(iii) of the
Code
, that there was a miscarriage of
    justice.  He asks that the court set aside the trial judges finding that the
    appellant was NCR at the time of the alleged offences and declare that the
    appellant was unfit to stand trial when he entered guilty pleas in February
    2007.  Alternatively,
amicus
asks that the matter be remitted to the
    trial court for a hearing to properly determine the appellants fitness to
    stand trial.

[6]

Amicus
argues that the trial record and the proposed fresh
    evidence show that there were reasonable grounds to believe that the appellant
    was unfit to stand trial on February 27, 2007.  In particular, the appellants
    rare mental disorder, erotomania, rendered him incapable of understanding the
    possible consequences of the proceedings.  This mental disorder gave rise to
    the NCR finding and equally should have raised concerns about the appellants
    fitness to stand trial.
Amicus
submits that the issue of the
    appellants fitness was never litigated and does not appear to have been the
    subject of a formal psychiatric assessment.

[7]

Amicus
advances the argument so that the appellant may avail
    himself of a possible stay of proceedings in the event he no longer poses a
    significant threat to the safety of the public and a stay is in the interests
    of the proper administration of justice.

[8]

For the reasons that follow, I would dismiss these arguments and order
    that the appeal be dismissed.

B.

Background

(i)     The
    Charges

[9]

The harassment charge alleged that between September 23, 2006 and
    November 7, 2006, the appellant harassed Katherine Eileen Dietrich by
    repeatedly communicating with her and with Paul and Connie Dietrich, causing
    Katherine Eileen Dietrich to reasonably fear for her safety and that of Paul
    and Connie Dietrich.  The failure to comply charges alleged that on December
    18, 2006, and January 11, 2008, the appellant failed to abstain from
    communicating or associating or having any contact with Katherine Eileen
    Dietrich, Paul and Connie Dietrich, and Sandra Dietrich.

[10]

In early September, 2006, the police received a complaint from Sandra
    Dietrich reporting that the appellant had been calling her residence on
    numerous occasions and asking to speak with Katie Dietrich.  The appellant
    also attended Sandra Dietrichs residence in his attempt to deliver flowers to
    Ms. Dietrich.  The police spoke with the appellant and received his assurance
    that he would stop trying to contact Ms. Dietrich through the family of Sandra
    Dietrich.

[11]

On September 23, 2006, Connie and Paul Dietrich, the parents of Ms.
    Dietrich, received a telephone message from the appellant.  The appellant also
    attended at their residence with flowers.  The appellant was told that Ms.
    Dietrich did not live there and to stop coming by their residence.  Ms.
    Dietrichs parents subsequently received numerous letters and several telephone
    messages from the appellant.

[12]

Ms. Dietrich provided the police with a statement indicating that she
    did not know the appellant, even though they had attended the same high school
    some years ago.  She stated that she did not want to have any contact with the
    appellant.  While Ms. Dietrich did not live in the same area as the appellant,
    she indicated that she and her parents were afraid for their personal safety.

[13]

The appellant was arrested on November 16, 2006, and charged with
    criminal harassment contrary to s. 264 of the
Code
.  On November 17,
    2006, he was released on a recognizance of bail with his mother as surety. 
    Despite having a bail condition prohibiting further contact with Ms. Dietrich
    and her parents, the appellant attempted to contact Ms. Dietrich again, by
    letter, on December 18, 2006.  In this letter, he reiterates his love for her
    and implores her not to send him back to jail.

[14]

The appellant was again arrested on December 20, 2006.  He was further
    charged with breaching the no contact provision of his bail and with criminal
    harassment.  The appellant was held in custody.  On January 2, 2007, the
    appellant was released on a recognizance of bail with his mother as surety.  He
    was also ordered to meet Dr. William J. Komer, a psychiatrist, for an
    examination on January 5, 2007.

[15]

On January 11, 2007, the appellant sent another letter to Ms. Dietrich. 
    He also telephoned her parents.

[16]

On January 12, 2007, the appellant turned himself into the police and
    was arrested on another charge of failing to comply with his recognizance of
    bail.  He has been in custody ever since.

(ii)    Dr.
    Komers Reports

[17]

Dr. Komer met with the appellant on January 5 and January 12, 2007.  Dr.
    Komer provided a report to the court on January 24, 2007.  He was not formally
    asked to address fitness to stand trial but he did so nonetheless.  He reported
    that the appellant had a major mental illness, namely a delusional disorder. 
    Dr. Komer stated that the appellant was aware of the nature and object of the
    proceedings and their potential consequences and that he would be able to
    meaningfully communicate with counsel and follow court proceedings.  He
    reported that in his opinion, the appellant was fit to stand trial.  Dr. Komer
    also opined that at the time of his alleged offences, the appellant was
    suffering from a mental disorder that rendered him incapable of knowing the
    wrongfulness of his actions.  He stated that the appellant was in need of
    psychiatric treatment, support, and monitoring that would best be initiated
    from within a psychiatric hospital setting.  The appellant was, in Dr. Komers
    opinion, at high risk for having further conflicts with the law and a potential
    significant threat to the safety of the public.

[18]

On January 30, 2007, the trial judge conducted a pretrial.  With
    the consent of the Crown and defence counsel, the trial judge made a s. 48
    order for the assessment of the appellants criminal responsibility with
    regards to mental disorder.

[19]

Dr. Komer reported to the court again on February 21, 2007.  He stated
    that the appellant was aware of the nature and object of the proceedings and
    their potential consequences and would be able to meaningfully communicate with
    counsel and follow court proceedings.  He stated twice in his report that in
    his opinion, the appellant was fit to stand trial.  As in his January 27, 2007
    report, he opined that the appellant had a delusional disorder and at the time
    of his alleged offences, he was suffering from a mental disorder that rendered
    him incapable of knowing the wrongfulness of his actions.

[20]

In his report, Dr. Komer addressed the appellants description of the
    circumstances surrounding his alleged offences.  The appellant expressed the
    belief that he did not do anything morally wrong and that the alleged victim
    was interested in him and used the whole neighbourhood to send him messages. 
    He wanted the alleged victim to come clean.  He said that he thought the
    alleged victim liked him, maybe loved him, and wanted to have contact with
    him.  The appellant described his last letter to the complainant stating that
    the letter was to get her to speak up in his defence about the charges.  He
    said he wanted the alleged victim to speak the truth.

(iii)  Outcome of
    the Trial

[21]

On February 27, 2007, the appellant appeared for trial.  He was
    represented by counsel and his parents were present in court.  There was no
    fitness to stand trial hearing.  Both of Dr. Komers reports were before the
    court.  Both the Crown and the defence agreed that the appellant was NCR.  The
    appellant pled guilty to the single count of criminal harassment between
    September 23, 2006 and November 7, 2006 and to both counts of failure to
    comply.  In his reasons, the trial judge noted that the matter had been
    judicially pre-tried and the issues were discussed in further detail than might
    have been advanced that day.  He observed that the appellant had been the
    subject of a number of assessments and referred to both of Dr. Komers reports.

[22]

There is no evidence that any concern about the appellants fitness to
    stand trial was in issue on February 27, 2007.  None of the appellants
    counsel, the Crown or the trial judge raised any concern.  There is also no
    suggestion of ineffective assistance of counsel, although
amicus
investigated
    this issue.

[23]

The trial judge found the appellant to be NCR on all counts and referred
    the matter to the Ontario Review Board (the ORB) for a disposition hearing
    pursuant to section 672.47(1) of the
Code
.

[24]

The ORB held its initial disposition hearing on March 30, 2007.  Dr.
    Komer testified before the ORB and stated that delusional disorders like the
    one experienced by the appellant are typically harder to treat because they
    tend to be more ingrained.  The ORB concluded that the appellant remained a
    significant threat and he should continue to be detained.

(iv)   Application
    for Admission of Fresh Evidence

[25]

Amicus
brought an application for the admission of fresh evidence
    to assist the court in determining whether there were reasonable grounds to
    believe that the appellant was unfit to stand trial on February 27, 2007. 
    The fresh evidence consisted of an affidavit of Dr. Derek Pallandi, a staff
    forensic psychiatrist at the Law and Mental Health Programme at the Centre for
    Addiction and Mental Health.

[26]

Dr. Pallandi did not assess the appellant.  Nonetheless, he concluded
    that he had reasonable grounds to believe that the appellants mental disorder
    prevented him from understanding the possible consequences of the legal
    proceeding, even though he may well have understood the general nature of that
    proceeding and may have been able to communicate with his counsel.  Dr.
    Pallandi opined that the appellant was diagnosed as suffering from a mental
    disorder commonly referred to as delusional disorder  erotomanic type.  This
    type of delusional disorder is almost always an all encompassing one and would
    define the mentally ill individuals decision-making in every aspect of his or
    her life.  It typically produces, in the mentally disordered individual, a
    fixed set of delusional beliefs that another person has a deep amorous interest
    in the delusional individual, even though that other person may not know the
    mentally disordered individual or may have repeatedly expressed a lack of such
    interest.

[27]

Dr. Pallandi stated that as the appellants delusional beliefs included
    the false belief that the complainant would never do anything to harm him,
    those delusional beliefs would have prevented the appellant from understanding
    the possible consequences of the proceedings.  The appellants mental disorder
    would have caused him to believe that he would be exonerated at trial if the
    complainant were brought to court because she would inevitably testify that she
    was in favour of the appellants efforts to contact her.  Due to the delusional
    disorder, the only possible consequence of a fair trial would be a finding of
    not guilty.  He pleaded guilty because he believed that this would resolve the
    matter more quickly and expedite his release.

[28]

Even though he had not assessed the appellant at any time, Dr. Pallandi
    stated that his review had provided him with adequate information upon which to
    provide an expert opinion on the probability that the appellant was unfit to
    stand trial on these charges in February of 2007.  His review consisted of the
    record of proceedings concerning the February trial, reports to the court dated
    August 22, September 29, 2008 and January 27, 2009 from Dr. Angus McDonald, a
    psychiatrist, and evidence of Dr. Arun Prakash, a psychiatrist, given on
    July 17, 2009 before Flynn J. in Kitchener, Ontario.

[29]

On September 29, 2008, Dr. McDonald conducted an NCR assessment for
    other charges that had been laid against the appellant in May, 2008.  Dr.
    McDonald wrote that he did not regard the appellant as unfit although his
    fitness at best is not robust.  In his January 27, 2009 report, Dr.
    McDonald wrote that we are doing little or nothing to maintain his Fitness to
    Stand Trial which has not been in question for a considerable period.

C.

Analysis

[30]

Section 2 of the
Code
defines unfit to stand trial as meaning:

unable on account of mental
    disorder to conduct a defence at any stage of the proceedings before a verdict
    is rendered or to instruct counsel to do so, and, in particular, unable on
    account of mental disorder to

a)

understand
    the nature or object of the proceedings,

b)

understand
    the possible consequences of the proceedings, or

c)

communicate
    with counsel.

[31]

Pursuant to section 672.22 of the
Code
, an accused is
    presumed fit to stand trial unless the court is satisfied on the balance of
    probabilities that the accused is unfit to stand trial.  The court 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 whether the accused is
    unfit to stand trial: section 672.11.  In addition, under s. 672.23, where the
    court has reasonable grounds, at any stage of proceedings before a verdict is
    rendered, to believe that the accused is unfit to stand trial, the court may
    direct, of its own motion or on application of the accused or the prosecutor,
    that the issue of fitness of the accused be tried.  An accused or a prosecutor
    who makes an application has the burden of proof that the accused is unfit to
    stand trial.

[32]

Unlike s. 16 of the
Code
, which is concerned with an
    accuseds mental state at the time of the offence, s. 2 is concerned with an
    accuseds mental state at any stage of the proceedings before a verdict is
    rendered.  As stated by Sopinka J. in
R. v. Whittle,
[
1994]
    2 S.C.R. 914, at p. 933,

[t]he fact that an accused is not
    criminally responsible within the meaning of s. 16 does not mean that he or she
    is unfit to stand trial.  If the contrary were true there would be little
    purpose in providing for the plea authorized by s. 16.  Most persons who
    suffered from the mental disorder defined in the section would be exempted from
    trial and would not get to plead until they had recovered subsequent to the
    date of the offence.

[33]

The statutory definition of unfit to stand trial found in s. 2 was added
    to the
Code
effective February 4, 1992, and it essentially codified the
    existing case law on the subject.

[34]

This court first addressed the definition in s. 2 in
R. v. Taylor
(1993),
    11 O.R. (3d) 323 (C.A.)
.
In that case it was conceded that the accused
    met the first two criteria found in s. 2, but the parties disagreed over
    whether the third, namely the ability to communicate with counsel, had been
    met.  Unlike this case, the
amicus
in
Taylor
took the position
    that the accused was fit to stand trial.
Amicus
advocated a limited
    cognitive capacity test in which the presence of delusions would not vitiate
    the accuseds fitness to stand trial unless the delusion distorted the
    accuseds rudimentary understanding of the judicial process.  The court examined
    the rationale for the fitness rules, stating at p. 338:

the accused must have
    sufficient mental fitness to participate in the proceedings in a meaningful
    way.  At the same time, one must consider that principles of fundamental
    justice require that a trial come to a final determination without undue
    delay.  The adoption of too high a threshold for fitness will result in an
    increased number of cases in which the accused will be found unfit to stand
    trial even though the accused is capable of understanding the process and
    anxious for it to come to completion.

In
    addition, adopting a high threshold of fitness, including a best interests
    component, derogates from the fundamental principle that an accused is entitled
    to choose his own defence and to present it as he chooses.

()

The limited cognitive capacity test strikes an
    effective balance between the objectives of the fitness rules and the
    constitutional right of the accused to choose his own defence and to have a
    trial within a reasonable time.

[35]

The limited cognitive capacity test was adopted by the Supreme
    Court of Canada in
R. v. Whittle.
Sopinka J. stated at p. 933 of that
    case that s. 2 required limited cognitive capacity to understand the process
    and to communicate with counsel.

[36]

This court elaborated on the appropriate inquiry in
R. v.
    Morrisey,
2007 ONCA 770, (2007) 87 O.R. (3d) 481, leave to appeal to S.C.C.
    refused, [2008] S.C.C.A. No. 102.  Blair J.A. stated at para. 36 that an
    accused must be mentally fit to stand trial in order to ensure that the trial
    meets minimum standards of fairness and accords with principles of fundamental
    justice: [m]eaningful presence and meaningful participation at the trial,
    therefore, are the touchstones of the inquiry into fitness.

[37]

Amicus
submits that following
Taylor
, the focus of the
    fitness inquiry has been on the accuseds ability to communicate with counsel
    and there has been little consideration of the other two branches of s. 2 of
    the
Code
, namely understanding the nature or object of the proceedings
    and understanding the possible consequences of the proceedings.

[38]

In this case, the trial judge had reviewed both of Dr. Komers reports. 
    Both of Dr. Komers reports expressly addressed all three of the branches found
    in s. 2 of the
Code
.  The record does not suggest that fitness was only
    examined with respect to the third branch or that Dr. Komer misunderstood the
    section 2 criteria.  The trial judge was alert to and addressed his mind to the
    issue of fitness.  He was entitled to rely on Dr. Komers reports.

[39]

In addition, the appellant was represented by counsel, and neither the
    Crown nor the defence raised any challenge nor expressed any concern regarding
    the appellants fitness to stand trial.

[40]

Furthermore, the record, including the appellants correspondence to the
    complainant requesting that she help him and stop talking with the prosecutors
    and the police, was not inconsistent with a conclusion of fitness.  There is
    also nothing in the record to suggest that the appellant believed the
    complainant would come to his rescue were he to enter a plea of guilty.  The
    evidence before the trial judge did not show that the appellant was probably
    unfit to stand trial.

[41]

In my view, there was no error in law on the part of the trial judge nor
    a miscarriage of justice.

[42]

As for the fresh evidence,
Palmer v. The Queen,
[1980] 1 S.C.R.
    759, at p. 775

provides that an appellate courts overriding
    consideration in exercising its discretion to admit fresh evidence must be the
    interests of justice.  The evidence must be relevant, credible, and reasonably
    expected to have affected the result.  The evidence should generally not be
    admitted if, by due diligence, it could have been adduced at trial, although
    this general principle will not be applied as strictly in criminal cases as in
    civil cases.  A failure to meet the due diligence requirement should not
    override accomplishing a just result: see
R. v. Warsing,
[1998] 3
    S.C.R. 579, at para. 56
.

[43]

Certainly with the exercise of due diligence, the fresh evidence could
    have been proffered at trial.  Even if one ignores that fact, Dr. Komer
    concluded, in two separate reports close to the time of trial, that the
    appellant was fit for trial.  Dr. McDonald assessed the appellant in 2008 and
    2009 and considered him fit to stand trial on different charges.  Both
    physicians opinions are more reliable indicators of the appellants state of
    mind at or near the time of his trial than is Dr. Pallandis four years later.  In
    his cross-examination, Dr. Pallandi agreed that in principle, Dr. Komer was in
    a more advantageous position to assess fitness.  Dr. Pallandi also testified
    that it was possible that counsel could convey to the appellant the possible
    consequences of the proceedings and that the appellant must have been aware
    that certain consequences would flow from a plea of guilty as opposed to a plea
    of not guilty.

[44]

In the circumstances, I would not admit the fresh evidence.  However,
    even if it were admitted, it would not alter the result, for the reasons
    expressed above.

[45]

The appeal is therefore dismissed.

S.E. Pepall J.

I agree R.A. Blair
    J.A.

I agree R.G. Juriansz
    J.A.

RELEASED:  November 14, 2011


