



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Evans, 2012
    ONCA 412

DATE: 20120618

DOCKET: C53599

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Evans

Appellant

Joseph Di Luca and Breese Davies, for the appellant

Nadia Thomas, for the respondent

Heard: May 17, 2012

On appeal from the verdict of not criminally responsible
    on account of mental disorder entered by Justice Kathleen E. McGowan of the
    Ontario Court of Justice, dated August 15, 2005.

Pepall J.A.:

Background

[1]

On March 27, 2005, the appellant approached a couple in a van. The
    driver was in the process of making a withdrawal at a drive-through automatic
    teller machine (ATM). The appellant asked for help, stating that he was
    desperate and had a little girl. He implied that she needed some medical
    attention. The driver said no and suggested the appellant take her to a
    hospital instead of asking for money at an ATM. The appellant then thrust a
    large kitchen knife into the passenger compartment of the van and stated that
    he had AIDS and was desperate. The couple escaped and the driver called 911.
    The appellant was subsequently arrested and charged with one count of robbery
    and one count of possession of a dangerous weapon.

[2]

An assessment order was made to consider the appellants fitness to
    stand trial and his criminal responsibility. Dr. William J. Komer, a
    psychiatrist, interviewed the appellant and wrote a report dated June 23, 2005.
    Dr. Komer concluded that the appellant, who was 21 at the time, had a major
    mental illness consistent with schizophrenia, poly-substance abuse and an
    anti-social personality disorder. It was Dr. Komers opinion that, while the
    appellant was fit to stand trial, at the time of the alleged offences he was
    incapable of knowing the wrongfulness of his actions.

[3]

At his August 15, 2005 trial, the appellant, who was represented by
    counsel, pleaded guilty to the charge of robbery and joined the Crown in
    requesting a verdict of not criminally responsible on account of mental
    disorder (NCRMD) pursuant to s.16 of the
Criminal Code
, R.S.C. 1985,
    c. C-46 (the 
Code
). The Crown did not proceed with the charge of
    possession of a dangerous weapon on the basis that it was subsumed in the
    robbery charge.

[4]

At the trial, Dr. Komer testified that the appellant was NCRMD at the
    time of the offence. He based this opinion on his conclusion that the appellant
    suffered from a major mental illness, namely schizophrenia, and stated that the
    appellant also had a history of substance abuse and an anti-social personality
    disorder. Dr. Komers report was filed as an exhibit. He was not
    cross-examined.

[5]

In reliance on Dr. Komers evidence, the trial judge made a finding of
    NCRMD and remanded the appellant to the jurisdiction of the Ontario Review
    Board. The appellant has been detained under orders of the Board ever since.

[6]

The appellant now appeals the trial judges NCRMD verdict and also
    brings an application for the admission of fresh evidence.

Fresh Evidence

[7]

The fresh evidence reveals that in December 2007, Dr. Ellis, the appellants
    treating psychiatrist, expressed reservations about the appellants
    schizophrenia diagnosis. The appellants medication was reduced to see whether
    symptoms of psychosis would return. By May 2008, the appellants St. Thomas
    Regional Mental Health Care treatment team had ruled out a diagnosis of
    schizophrenia altogether. In November 2008, the appellants treatment team
    recommended an absolute discharge but this was not accepted by the Ontario
    Review Board. In January 2011, Dr. Ellis appeared as a witness before the
    Ontario Review Board. He testified that without medication, the appellant was
    functioning perfectly well. The appellant did not display the symptoms of
    schizophrenia and Dr. Ellis did not believe the appellant was schizophrenic in
    2005.

[8]

The proposed fresh evidence also includes a June 15, 2011 report of Dr.
    Mark Pearce of the Centre for Addiction and Mental Health. Dr. Pearce was asked
    whether the appellant would have met the s. 16 test absent a finding that he
    was suffering from schizophrenia. Dr. Pearce stated that he would likely not
    have been able to conclude on balance that the appellant was NCRMD at the time
    of the offence. In his opinion, the appellant would have been able to
    appreciate the nature and quality of his act and would have known its moral and
    legal wrongfulness.

[9]

At the direction of this court, Dr. Komer met with the appellant in
    November and December of 2011 and filed a report with the court dated January
    14, 2012. In his report, Dr. Komer reiterated his opinion that, at the time of
    the offence, the appellant was suffering from a mental disorder that rendered
    him incapable of knowing the wrongfulness of his actions and as such was NCRMD.
    Dr. Komer stated that although it is not typical for a person with
    schizophrenia to remain in remission of psychosis for several years without
    taking antipsychotic medication, this diagnosis could not be excluded. He
    raised the possibility of schizoaffective disorder (which differs from
    schizophrenia). He also stated that it was possible that the appellant had
    experienced a substance-induced psychosis at the time of the offence. When
    cross-examined on his report, Dr. Komer testified that the best fit for the
    appellant was a substance-induced psychosis.

Positions of the Parties

[10]

The
    appellant submits that in light of the fresh evidence, the NCRMD verdict
    amounts to a miscarriage of justice. The appellant was found NCRMD on the basis
    that he was suffering delusions as a symptom of schizophrenia. This diagnosis
    has now been ruled out by the appellants treating psychiatrist and Dr. Komer
    himself testified that the best fit for the appellant was a substance-induced
    psychosis. The appellant asks that the NCRMD verdict be quashed and a stay of
    proceedings entered. Alternatively, he asks that a conviction be entered and a
    sentence of time served be imposed.

[11]

The
    respondent submits that although the appellants progress to date suggests that
    he likely does not suffer from schizophrenia, he might more accurately have
    been diagnosed with schizoaffective disorder, which was capable of supporting
    the NCRMD verdict. If the appeal is allowed, the respondents position is that
    a stay of proceedings is not warranted. Rather, a conviction for robbery should
    be entered and a one day sentence plus probation and a s.109 weapons
    prohibition order should be imposed.

[12]

The
    respondent relies on
R.v.Bouchard-Lebrun
, 2011 S.C.C. 58 and concedes
    that: (a) if the psychotic symptoms exhibited by the appellant at the time of
    the offence were the product of self-induced drug intoxication, this would not
    support a finding of NCRMD; and (b) an antisocial personality disorder alone
    does not meet the s. 16 criteria for a finding of NCRMD.

Analysis

[13]

An
    individual is presumed to be criminally responsible for his or her actions. Section
    16(1) of the
Code
provides an exception to that general principle:

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.

[14]

A
    person found NCRMD may appeal on the basis that the verdict amounts to a
    miscarriage of justice: s. 686(1)(a)(iii) of the
Code
.

[15]

In
    this case, the appellant was found to be NCRMD on the basis that he suffered
    from schizophrenia. That diagnosis has been ruled out by the appellants
    treatment team. Additionally, Dr. Komer has testified that the best fit for
    the appellant at the time of the offence was a substance-induced psychosis. 
    The respondent concedes that a self-induced substance-induced psychosis would
    not support an NCRMD finding. In these circumstances, the NCRMD verdict cannot
    be sustained and should be set aside. It amounts to a miscarriage of justice.

[16]

On
    the issue of remedy, the appellant seeks a stay or, alternatively, a conviction
    with a sentence of time served. The respondent essentially agrees with the
    appellants alternative remedy, namely, a conviction for robbery with a one day
    sentence. However, the respondent submits that a term of probation and a
    mandatory s. 109 weapons prohibition order should also be imposed.

[17]

In
    our view, this is not one of those rare cases in which a stay of proceedings
    may be justified. Rather, a conviction should be entered and a sentence of one
    days imprisonment should be imposed.

[18]

As
    for the respondents request for a term of probation, this issue arose in
R.
    v. Guidolin
, 2011 ONCA 264, 280 O.A.C. 387, a decision which bears some
    resemblance to this case. There the accused was charged with a robbery that
    arose at a bank machine. He was also charged with resisting arrest. A finding
    of NCRMD was made based on a psychiatric report that the accused had a
    schizoaffective psychosis, engaged in poly-substance abuse and had an
    anti-social personality disorder. Relying on s. 686(1)(a)(i) of the
Code
,
amicus
contended that the NCRMD verdicts were unreasonable. This court
    noted at para. 16 that 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. In that case, the
    court held that there was no basis upon which a reasonable trier of fact could
    conclude that the NCRMD claim had been made out on a balance of probabilities
    and the verdicts were set aside. The appellant had spent approximately 44
    months in custody following his arrest and had been detained in a psychiatric
    facility for all but the first few months of that time period. The court was
    satisfied that the time that the appellant had spent in custody exceeded the
    time he would have been incarcerated had he pled guilty and received an
    appropriate sentence. No further incarceration was justified nor would any
    purpose be served by a probation order. A sentence of one days imprisonment on
    the robbery charge was imposed.

[19]

In
    this case, the appellant has spent seven years in custody since his arrest. As
    in
Guidolin
, the time spent in custody by the appellant is outside the
    range of any sentence he would have received had he pled guilty to the robbery
    charge in August 2005. A probation order is a form of punishment and cannot be
    justified given the appellants lengthy time in custody.

Disposition


[20]

Accordingly,
    for the reasons given, I would admit the fresh evidence, allow the appeal, set
    aside the NCRMD verdict, enter a conviction on the robbery charge and impose a
    sentence of one days imprisonment, together with a mandatory s. 109 weapons
    prohibition order.

Released: June 18, 2012 JL

S.E.
    Pepall J.A.

I
    agree John Laskin J.A.

I
    agree Cronk J.A.


