



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Ellis, 2012 ONCA
    906

DATE: 20121221

DOCKET: C53178

Doherty, MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Ellis

Appellant

Dale Ives, for the appellant

Amy Alyea and Grace Choi, for the respondent

Heard and released orally: December 19, 2012

On appeal from the finding of not criminally responsible
    on March 11, 2009 by Justice Norman S. Douglas of the Ontario Court of Justice,
    sitting without a jury.

By
    the Court:

[1]

In the early morning hours of October 18, 2008, the appellant entered
    the home of his adoptive parents and attacked them with a club and sword. On
    December 22, 2008, he pleaded guilty to two counts of assault with a weapon
    contrary to s. 267(a) of the
Criminal Code
.

[2]

The Crown requested an assessment of the appellants mental condition
    pursuant to s. 672.11 of the
Criminal Code
. Dr. W.J. Komer conducted
    an assessment and concluded:

Mr. Ellis is, in my opinion, fit to stand trial and likely
    criminally responsible for his actions with regards to mental disorder. He
    reported having an appreciation of the nature and quality of his actions and a
    knowledge of their wrongfulness.

[3]

The trial judge granted the Crowns request for a second assessment. The
    defence did not oppose this request. Dr. Julian Gojer conducted the second
    assessment. He concluded:

His thinking at the time of the offences were dictated by
    irritational thoughts secondary to delusional ideation and in the setting of an
    active Schizophrenic illness. It is unlikely that at the time of the alleged
    offenses, Mr. Ellis would have been able to weigh the pros and cons of his
    actions. It is unlikely that he would have been able to exercise rational
    choice. He would not have known that his actions were morally wrong. He
    justified his actions based on delusional ideation. A s. 16(1) defence is
    available to him.

[4]

On March 11, 2009, the trial judge found that the appellant was NCR
    pursuant to s. 16 of the
Criminal Code
. Relying heavily on the
    testimony of Dr. Gojer, the trial judge concluded:

[Dr. Gojer] convinced me beyond a shadow of a doubt that this
    defendant, Mr. Ellis, suffers from probably schizophrenia and that whether that
    is the final diagnosis or not, it is clearly a disease of the mind that
    rendered him incapable of knowing that his actions were morally wrong. Having
    listened carefully to Dr. Gojer, I have come to the conclusion that Mr. Ellis
    is not criminally responsible for his actions.

[5]

Following this verdict, the Ontario Review Board, in a disposition dated
    May 21, 2009, ordered that Mr. Ellis be detained in the medium secure unit at
    Regional Mental Health Care St. Thomas.

[6]

By disposition dated September 28, 2010, the ORB ordered that Mr. Ellis
    be detained in the maximum secure facility at the Oak Ridge Division of the
    Mental Health Centre Penetanguishene. The ORB made a similar order in its most
    recent disposition dated December 21, 2011.

[7]

The appellant appeals the NCR verdict on two grounds.

[8]

First, the appellant asserts that he was denied the effective assistance
    of counsel at trial in two respects: first, trial counsel failed to follow the
    appellants instruction to oppose the second assessment; and second, trial
    counsels approach to, and actual conduct of, the NCR hearing resulted in an
    unfair process and an unreliable verdict.

[9]

To succeed on a claim of ineffective assistance of counsel, an appellant
    must establish that trial counsels acts or omissions constituted incompetence
    (the performance component) and that a miscarriage of justice resulted (the
    prejudice component): see
R. v. B. (G.D.)
, [2000] 1 S.C.R. 520 at
    para. 26.

[10]

In
    our view, the appellant cannot establish either component of the test. We have
    carefully reviewed the record and are of the opinion that trial counsels
    approach to the NCR hearing and his performance in it were entirely
    professional. Regarding the appellants specific complaint that his counsel did
    not comply with his explicit instruction to oppose a second assessment, the
    record does not support his assertion that this was his instruction, Dr. Komer
    supported a second assessment, and, indeed, the second assessment could have
    supported Dr. Komers opinion. In short, a second assessment was probably inevitable
    and desirable and it was a proper exercise of professional judgment for trial
    counsel not to oppose it.

[11]

Nor
    do we see the possibility of a different result flowing from a different
    approach to the case by trial counsel. There was a great deal of evidence about
    the appellants decline in interpersonal functioning and bizarre behaviour and
    actions to support a mental illness diagnosis and an NCR finding. Trial
    counsels conduct of the proceedings caused no prejudice to the appellant.

[12]

This
    case presented a difficult problem for defence counsel. The appellant, by his
    own admission, had committed two very serious assaults on his parents. The
    attacks and the surrounding circumstances suggested that the appellant may
    suffer from some sort of mental disorder. The appellant, however, had adamantly
    denied having any mental problems and indicated he acted as he did because he
    was drunk.

[13]

Counsel
    appreciated that the appellant faced either a long term in the penitentiary or
    an NCR finding and detention subject to subsequent order of the ORB. He knew
    that the expert opinion as to the appellants mental state was divided.

[14]

According
    to counsel, and we have no reason to reject this evidence, he canvassed the
    possible outcomes with the appellant. The appellant was adamant that he would
    not agree to an NCR finding or any statement to the effect that he was mentally
    ill. He also accepted, however, that counsel could proceed on the basis that he
    would not object to a further mental assessment and ultimately would not resist
    an NCR finding.

[15]

Counsel
    followed that strategy. We see nothing unethical or tactically unreasonable in
    that choice. Nor apparently did the appellant until sometime after his first
    ORB hearing. His trial counsel continued to act for him through the hearing.

[16]

The
    various examples put forward by counsel for the appellant in support of the
    contention that trial counsel provided incompetent representation at the NCR
    hearing lose their force when viewed through the lens of the trial strategy
    adopted by counsel.

[17]

Second,
    the appellant contends that the NCR verdict was unreasonable because no
    reasonable trier of fact could have concluded that the appellant lacked the
    capacity to exercise rational choice and to know that his actions were morally
    wrong.

[18]

We
    do not accept this submission. Before the attack on his parents, there had been
    a gradual decline in the appellants occupational, social and interpersonal
    functioning. Also before the attack, the appellant engaged in bizarre actions
    and experienced weird thoughts, such as speaking of zombies and cows and
    installing multiple bolts on his door and bars on his windows. The
    circumstances of the attack are also particularly troubling  the appellant
    walked four kilometres to his parents home and brutally attacked them with a
    club and sword while calling them Satanists. After the attack, the appellant
    provided inconsistent and unsupported explanations for his conduct, including
    an allegation about parental sexual abuse of his sister ten years prior, a
    fight with his mother, and heavy alcohol consumption. All of this conduct
    militated in favour of the NCR finding made by the trial judge. Coupled with
    the psychiatric report and testimony of Dr. Gojer, which the trial judge found
    credible, the NCR finding is far removed from being unreasonable.

[19]

Parenthetically,
    we observe that much of the extensive fresh evidence prepared by both parties,
    and especially the record of the three ORB dispositions made since the
    appellant was declared NCR (the appellant is now in a secure facility and there
    have been many problems with his behaviour) support, in hindsight, the NCR
    finding.

[20]

The
    appeal is dismissed.

Released: December 21, 2012 (D.D.)

Doherty J.A.

J.C. MacPherson J.A.

R.A. Blair J.A.


