



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Williams, 2012
    ONCA 695

DATE: 20121016

DOCKET: C45773

Sharpe, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Williams

Appellant

Justin Williams, acting in person

Paul Burstein and Bernadette Saad,
amicus curiae

Scott Latimer, for the respondent

Heard:  October 2, 2012

On appeal from the conviction entered on August 28, 2005 and
    the sentence imposed on December 1, 2005 by Justice Richard D. Schneider of the
    Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

At the conclusion of oral argument, we announced that, for reasons we
    would later provide, the appeal was allowed, the pleas of guilty and consequent
    findings of guilt and of not criminally responsible on account of mental disorder
    (NCRMD) were set aside and a new trial ordered on the counts of failure to
    appear and common nuisance.  These are our reasons.

The Background

[2]

About two months after he had been found unfit to stand trial and
    remanded to the Centre for Addiction and Mental Health (CAMH) subject to a
    treatment order, the appellant appeared with counsel before the judge presiding
    in the Mental Health Court at Old City Hall in Toronto.

[3]

The offences with which the appellant was charged included several
    counts of failing to comply with release and probation orders and single counts
    of causing a disturbance and of common nuisance. With the exception of the
    common nuisance count, which is exclusively indictable, Crown counsel elected
    to proceed summarily.

The Fitness Hearing

[4]

Proceedings began with a fitness hearing.

[5]

The presiding judge had the benefit of a very recent psychiatric report
    from CAMH that described the appellants fitness as arguable and variable. The
    reporting psychiatrist pointed out that the issue of the appellants fitness to
    stand trial would have to be established at his next court appearance because
    his mental condition fluctuated markedly from day to day. The psychiatrist
    noted that the appellant would likely plead guilty to the charges even if he were
    unable to recollect what issues are in question.

[6]

A forensic psychiatrist testified at the fitness hearing.  She described
    the appellant as marginally fit. She gave evidence that the appellants
    fitness tended to fluctuate very rapidly.  She expressed concern about the
    appellants poor attention span, confusion, and the extent of his
    disorganization.

[7]

Crown and defence counsel were in agreement that the appellant was then
    fit to stand trial. The presiding judge was clearly concerned about the appellants
    fitness and the variability of his condition, but found him fit to stand trial.

The Plea Proceedings

[8]

After the finding of fitness, counsel for the appellant indicated that
    the appellant wanted to have a bail hearing.  After a brief adjournment while
    the judge dealt with other cases, counsel for the appellant returned, waived the
    bail hearing and consented to the appellants detention.

[9]

The appellant interrupted proceedings to indicate that he wanted to
    plead guilty to the charges. Trial counsel confirmed that the appellant wanted
    to plead guilty then and there.  Counsel also advised the judge, and the Crown
    confirmed, that the Crown intended to have the appellant assessed for criminal
    responsibility and, ultimately, to have him found NCRMD.

[10]

The
    appellant was arraigned and entered pleas of guilty to all charges. Crown
    counsel read a summary of the relevant facts and the appellants counsel
    confirmed their correctness. The circumstances of the common nuisance offence
    were that the appellant lit and smoked some cigarettes around the pumps at a
    gas station in downtown Toronto.  He refused to stop until arrested by police.

[11]

The
    presiding judge did not conduct a plea inquiry to satisfy himself that the
    pleas of guilty were voluntary.  Nor did he attempt to determine whether the
    appellant understood that the plea of guilty was an admission of the essential
    elements of each offence or that the appellant understood the nature and
    consequences of his pleas, especially Crown counsels announced intention to
    seek a verdict of NCRMD.

[12]

The
    presiding judge entered findings of guilt on all the charges to which the
    appellant had pleaded guilty.

The Assessment Order

[13]

Following
    the entry of the findings of guilt, counsel discussed the Crowns request for
    an assessment on the issue of criminal responsibility. It was made clear by
    both defence and Crown counsel that the Crown would be seeking a finding of
    NCRMD when proceedings resumed after the assessment.

[14]

One
    month after the appellant had entered his pleas of guilty and had been found
    guilty of all offences by the presiding judge, he appeared at the hearing to
    determine his criminal responsibility for two offences: failure to appear in
    court and common nuisance.

The Criminal Responsibility Hearing

[15]

Crown
    counsel called an experienced forensic psychiatrist involved in the appellants
    assessment to give evidence on the issue of criminal responsibility.  The
    doctor explained that the appellant suffered from a chronic major psychiatric
    disorder, in all likelihood a schizoaffective psychosis, that rendered him
    incapable of appreciating the nature and consequences of his conduct of smoking
    near the gas pumps. Nor would the appellant have the capacity to remember when
    he was required to be in court and actually get himself there.

[16]

The
    psychiatrist said it was almost impossible to carry on a conversation with the
    appellant, especially about the circumstances of the common nuisance offence.
    The appellants response when asked about the offence was to laugh
    inappropriately and to talk about something else. The appellant told the doctor
    that he was going to plead guilty to the charges even though he displayed no
    understanding about the charges.

[17]

The
    appellant testified on the inquiry into his criminal responsibility. He
    admitted that he was standing about five feet away from the gas pumps.  He said
    that smoking near gas pumps could cause an explosion that could hurt people,
    including himself.  He appreciated that his conduct was wrong.

[18]

In
    cross-examination, the appellant testified that he didnt know what he was
    doing when smoking by the gas pumps or appreciate the danger of doing so
    including causing an explosion.  He admitted he had no capacity to remember to
    come to court.

[19]

After
    brief argument, the presiding judge entered a verdict of NCRMD on the counts of
    common nuisance and of failure to appear in court, and remanded the appellant
    to CAMH to await a disposition hearing by the Ontario Review Board.

[20]

Convictions
    were recorded on all other counts and concurrent non-custodial sentences
    imposed.

The Initial Appeal

[21]

The
    appellant filed an inmates notice of appeal against conviction almost seven
    months after the NCRMD hearing. The appeal was abandoned several years later
    and dismissed as abandoned by a panel of this court.  A year ago, another panel
    of the court ordered that the appeal be re-opened in connection with the
    finding of NCRMD.  Subsequently, Mr. Burstein was appointed
amicus
.

This Appeal

[22]

Amicus
advances two grounds of appeal in support of his position that the underlying
    findings of guilt should be set aside.  He submits that the appellants guilty
    plea was invalid because it was involuntary, uninformed, and equivocal.
Amicus
argues further that counsel who represented the appellant at trial provided
    assistance that fell below the standard of reasonable professional competence.

[23]

The
    respondent took the position that the appellants pleas of guilty were
    voluntary, informed and unequivocal, thus should not be set aside.  According to
    the respondent, the appellants claim of ineffective assistance of counsel
    should also fail.

[24]

Without
    objection, we received evidence that was not available to the presiding judge.
    The fresh evidence included the affidavits of the appellant and trial counsel,
    as well as transcripts of their respective cross-examinations.

The Validity of the Guilty Pleas

[25]

The
    cumulative effect of several circumstances satisfies us that, in this case, the
    failure of the presiding judge to conduct a plea inquiry vitiates the
    appellants pleas of guilty, the findings of guilt, and of NCRMD that
    followed.  We reach this conclusion for several reasons.

[26]

First,
    as the various assessment reports and the evidence adduced at the fitness
    hearing that preceded entry of the guilty pleas made clear, the appellant
    suffered from a chronic and severe major mental illness with psychotic
    features.  He functioned intellectually in the Extremely Low Range.  The
    fitness of the appellant to stand trial, itself not a rigorous standard, was in
    a state of constant flux drifting from one side of the line to the other and
    back again.  The appellant displayed poor attention, some confusion, and
    varying degrees of disorganization.  As the presiding judge observed:

I dont know that after reading this and hearing Dr. Chatterjee
    we could have any confidence that at the magic moment the stars are aligning
    such that he can plug into the trial process.

[27]

Second,
    in two psychiatric assessments completed shortly before the proceedings under
    appeal, the author, a very experienced forensic psychiatrist, indicated that
    during his interview the appellant volunteered that he would plead guilty to
    the charges although he didnt know or couldnt remember what the charges were.

[28]

Third,
    at the conclusion of the fitness hearing, the presiding judge observed:

Dr. Chatterjee says that, while marginal, hes just over the
    line. So I suppose on a balance of probabilities Ill find that hes fit,
    although I do have concerns about, and I know that this is a concern of mine,
    not necessarily one thats reflected in the case law, whether there isnt a
    prospective element to the issue of fitness.

[29]

Fourth,
    some of the appellants own remarks during the proceedings that immediately
    followed the finding of fitness, but before entry of his pleas of guilty
[1]
raise questions about the extent of the appellants understanding of the
    proceedings.  After the judge remanded the appellant for an assessment of his
    criminal responsibility, the appellant asked:

So  so what do I get for my  for these charges?

[30]

Fifth,
    a valid plea of guilty includes an understanding on the part of an accused that
    the plea is an admission of the essential elements of the offence to which the
    plea has been entered. The appellant pleaded guilty to common nuisance. The
    fresh evidence materials, which include affidavits and cross-examinations of
    the appellant and trial counsel, as well as the statement of facts recited by
    Crown counsel in support of the plea, cast doubt on the extent to which the
    agreed facts could support a finding of guilt and whether the appellant
    understood
[2]
the essential elements of the offence and actually admitted them.

[31]

Sixth,
    the nature of the proceedings in this case, an application by the Crown to have
    the appellant declared NCRMD after a finding of guilt, required an inquiry to
    ensure the appellant understood the consequences of a finding of NCRMD.

[32]

The
    appellants considerable experience with the criminal justice system appears to
    consist of arrests associated with his panhandling activities and prosecutions
    for failure to abide by release forms or probation orders.  He pleads guilty
    and is sentenced to time served or required to comply with a probation order. 
    He returns to the streets on the day of sentence or shortly thereafter.

[33]

In
    this case, the appellant pleaded guilty to failure to appear in court and common
    nuisance. The latter offence involves smoking cigarettes too close to some gas
    pumps and failing to move on when told to do so.  Although his lawyer had
    explained the NCR procedure and consequences to him shortly after Crown
    counsels intention to pursue such a path became clear, it was incumbent on the
    presiding judge to satisfy himself by inquiry into the extent and currency of
    the appellants understanding:  see
R. v. P. (A.)
, 2011 ONCA 673, at
    para. 8.

Conclusion

[34]

It
    was for these reasons that we allowed the appeal, set aside the pleas of
    guilty, findings of guilt and NCRMD, and ordered a new trial. It will be up to
    Crown counsel, mindful of the nature of the offences and the time that has
    elapsed between their alleged commission and this decision, to determine
    whether to proceed afresh, or to utilize provincial mental health legislation
    to facilitate the treatment the appellant so obviously requires.

Robert Sharpe J.A.

E.E. Gillese J.A.

David Watt J.A.





[1]
The appellant interrupted proceedings during discussions about a bail hearing
    to say I just want to plea to the  



[2]
The appellants cross-examination reveals a person who appears to agree with
    nearly every suggestion made by the questioner, even if a later answer plainly
    contradicts one given earlier.


