



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Anderson, 2021 ONCA 333

DATE: 20210519

DOCKET:
C66970

Watt, Hoy and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Duane Jeffrey Anderson

Appellant

Terrance Luscombe
, for the appellant

Dena Bonnet
,
    for the respondent

Heard: March 24, 2021 by video conference

On appeal from the verdict of not criminally
    responsible on account of mental disorder entered by Justice David M. Stone of
    the Ontario Court of Justice, dated June 19, 2018.

By the Court:

[1]

On June 19, 2018 the appellant was found not
    criminally responsible on account of mental disorder (NCRMD) at the
    conclusion of proceedings before a judge of the Ontario Court of Justice. He
    appeals that finding on the basis that he did not appreciate the nature of the
    proceedings that resulted in the verdict. In addition, he never intended to
    admit the conduct that formed the basis of the several offences with which he
    was charged or the conclusion of the psychiatrist who conducted the
    court-ordered assessment.

[2]

At the conclusion of the appellants
    submissions, we dismissed the appeal. We promised to provide reasons for that
    decision. Those reasons follow.

The Background Facts

[3]

As a result of a series of events at his
    mothers home, the appellant was charged with arson, unlawful confinement,
    assault with a weapon, mischief and failure to comply with an undertaking. He
    elected trial by a judge and jury and had a preliminary inquiry.

The Preliminary Inquiry

[4]

Over three days, evidence was given about the
    circumstances underlying the offences with which the appellant was charged. His
    mother and brother testified about how the events began and continued before
    and after his mother called 911. The officers who responded to the 911 call
    also gave evidence of their observations and interactions with the appellant.

[5]

An investigator from the Office of the Fire
    Marshal explained that the fire that occurred at the appellants mothers home
    had been intentionally set. The fire had been started by igniting a mixture of
    methyl alcohol (fondue fuel) and mineral oil (four-stroke motor oil).

The Exit Pre-Trial

[6]

At the conclusion of the case for the Crown at
    the preliminary inquiry, Crown counsel advised the presiding judge of the
    counts on which he (Crown counsel) would be seeking committal. The presiding
    judge did not rule on the issue of committal.

[7]

Crown and defence counsel agreed to conduct an
    exit pre-trial with the preliminary inquiry judge.

The Assessment Order

[8]

After the exit pre-trial concluded, the
    parties returned to the courtroom later the same day. Crown counsel sought an
    order for an assessment report under s. 672.11 of the
Criminal Code
, R.S.C. 1985, c. C-46
. The purpose of
    the report was to obtain evidence of whether the appellant was, at the time of
    the commission of the offences charged, suffering from a mental disorder so as
    to be exempt from criminal responsibility under s. 16(1) of the
Criminal
    Code
.

[9]

The
    preliminary inquiry judge advised counsel of his provisional conclusions about
    committal. However, counsel did not request, and the judge did not make, any
    formal order of committal or discharge on the counts contained in the
    information.

[10]

On his own
    motion, the preliminary inquiry judge concluded that he had reasonable grounds
    to believe that evidence of the appellants mental condition was necessary to
    determine the issue of the appellants criminal responsibility for the offences
    charged. The judge remanded the appellant for 60 days to Ontario Shores Centre
    for Mental Health Services so that the assessment could be carried out.

The Exit Pre-Trial Resumes

[11]

About two months later, after the parties had
    received and reviewed the Assessment Report from Ontario Shores, they returned
    before the preliminary inquiry judge. They resumed the exit pre-trial.

[12]

When the parties returned to the courtroom,
    defence counsel advised the preliminary inquiry judge that he (defence counsel)
    had met with the appellant both before and after the initial exit pre-trial.
    Counsel explained that he had read and discussed the contents of the report
    with the appellant including its conclusion. The appellant, counsel said, was
    aware of the contents of the report and the conclusion of its author, Dr.
    Pytyck. According to counsel, the appellant was willing to acknowledge and
    accept the psychiatrists opinion as expressed in her report.

The Re-Election

[13]

Through counsel, the appellant indicated he
    wanted to re-elect his mode of trial. Counsel waived re-arraignment and
    indicated the appellants wish to be tried in the Ontario Court of Justice
    before the preliminary inquiry judge. The appellant confirmed his wish to
    proceed in this way. The Crown consented to the re-election. The appellant
    entered a plea of not guilty.

[14]

The parties agreed that in deciding the case,
    the presiding judge could rely on the evidence adduced at the preliminary
    inquiry together with the synopses that Crown counsel had read into the record.

The Positions of the Parties at Trial

[15]

The trial Crown, relying on the evidence adduced
    at the preliminary inquiry and the content of the synopses, asked the trial
    judge to find the appellant committed the acts that formed the basis of the
    offences on which the judge had indicated he would commit the appellant for
    trial. On the basis of the opinion of the forensic psychiatrist who conducted
    the assessment, the Crown invited the trial judge to find the appellant not
    criminally responsible on account of mental disorder on the affected counts.

[16]

Defence counsel made no further submissions.

The Decision of the Trial Judge

[17]

In brief reasons, the trial judge found the
    appellant not guilty on two counts. On the remaining counts, the trial judge
    found that the appellant committed the acts that formed the basis of the
    offences, but was at the time suffering from a mental disorder that exempted
    him from criminal responsibility for those offences.

[18]

After entering the special verdict of NCRMD, the
    trial judge declined to conduct a disposition hearing but referred the matter
    to the Ontario Review Board (ORB) to hold a disposition hearing. The
    appellant remains under the supervision of the ORB.

The Grounds of Appeal

[19]

In this court, the appellant advances a single
    ground of appeal. He says that the trial judge erred in failing to ensure that
    the appellant understood the procedure that was being followed and its
    consequences for him. In support of this ground, the appellant relies on
    materials tendered for admission in this court to supplement the trial record.

The Failure to Ensure the Appellants Understanding of the
    Proceedings

[20]

The single ground of appeal advanced by the
    appellant alleges that a miscarriage of justice occurred because the trial
    judge failed:

i.

to explain the process of a NCRMD plea to the
    appellant; and

ii.

to conduct an inquiry to ensure that the
    appellants admission of the circumstances of the predicate offences was
    voluntary, informed and unequivocal.

[21]

Some further background is necessary to situate
    this claim of error in its proper setting.

The Additional Background

[22]

The parties have enhanced the trial record with
    affidavit material from the appellant and trial counsel. No issue is raised
    about admissibility.

[23]

The appellant is currently subject to a
    detention order. He is confined to the Forensic Psychiatric Rehabilitation Unit
    at Ontario Shores Centre for Mental Health Services.

The Affidavit of the Appellant

[24]

On at least a dozen occasions between 2004 and
    2017, the appellant was assessed or treated at Lakeridge Health in Oshawa and the
    Centre for Addiction and Mental Health. The diagnoses have varied. Alcohol and
    Substance Abuse Disorder. Depressive Disorder. Antisocial Personality Disorder.
    Narcissistic features. Anger management problems. Schizophrenic Disorder 
    Schizoaffective Type. And most recently, Schizoaffective Disorder  Bipolar
    Subtype. The appellant also believes that he has an acquired brain injury from
    several sports-related concussions. Over two decades ago, he lapsed into a coma
    after a fall.

[25]

The appellant says that he did not understand
    that the proceedings after his re-election would result in a finding of NCRMD and
    deprive him of his right to have a trial. He believed that he was remanded to
    Ontario Shores so that he could receive psychiatric treatment and remain fit
    for his trial.

[26]

The appellant cannot recall having received any
    advice from trial counsel about the meaning, process or consequences of a NCRMD
    finding. He felt drowsy and had difficulty following the proceedings.

[27]

The appellant claims he did not intend to accept
    the facts as outlined in the preliminary inquiry or the allegations included in
    the synopses read by Crown counsel after the re-election. He did not intend to
    accept the NCRMD assessment and the conclusions expressed by the examining
    psychiatrist. He did not wish to give up his right to have a trial and to
    testify in his own defence.

The Affidavit of Trial Counsel

[28]

Trial counsel (not counsel on appeal) has
    practiced law for nearly one and one-half decades, including about ten years as
    defence counsel in criminal cases. He assumed carriage of the appellants case
    from prior counsel (now counsel on appeal) about two months before the
    preliminary inquiry. He spoke and met with the appellant in advance and on each
    day of the inquiry. The original election had been made and the preliminary
    hearing dates set by previous counsel with whom trial counsels associate had
    met. During his meetings with the appellant before and during the preliminary
    inquiry, trial counsel explained what he anticipated would happen in the
    courtroom and assessed the appellants condition. Three times during the
    preliminary inquiry, the appellant disrupted the examination of witnesses.

[29]

At the conclusion of the evidence at the
    preliminary inquiry, trial counsel conceded committal on several counts. Crown
    counsel acknowledged that the appellant should be discharged on others. As
    trial counsel had indicated when the preliminary inquiry began, he requested an
    exit pre-trial with the presiding judge. The Crown agreed.

[30]

When the exit pre-trial ended, defence counsel
    met with the appellant. Counsel explained that if the appellant were convicted,
    the Crown would seek a sentence of three to five years, and that the
    preliminary inquiry judge considered a sentence of five years appropriate.
    Counsel advised the appellant of the judges opinion about sentence.

[31]

Trial counsel told the appellant that the judge
    was going to order an NCR assessment. Counsel explained that the assessment
    would be done at a hospital. The appellant would meet with doctors who would
    prepare a report for the court. Trial counsel and the appellant had talked
    about the NCR process on prior occasions. Counsel pointed out that if the
    appellant were found NCRMD, he (the appellant) would remain in hospital for an
    indeterminate time. His release would be up to the ORB and the appellants own
    progress. The appellant agreed to proceed with the NCR assessment, or at least
    did not oppose it.

[32]

After trial counsel had received the assessment,
    he met with the appellant both before and after the exit pre-trial reconvened
    before the presiding judge. Counsel reviewed the report with the appellant
    focusing on:

[T]he sections entitled Medications,
    Medical History, Psychiatric History, the file information from Lakeridge
    Health, the description of Mr. Andersons account of the events, Functional
    Inquiry, Course in Hospital, Mental Status Examination and Psychiatric
    Opinions and Recommendations.

The appellant seemed to understand the
    contents of the report, including Dr. Pytycks conclusions, and that the report
    would be put before the trial judge who would decide whether the appellant
    would be found NCRMD.

[33]

Trial counsel repeated his prior discussions with
    the appellant about the procedure in NCR cases and what would happen were the
    appellant to be found NCRMD and be subject to the supervision of the ORB.
    Counsel explained that if the appellant wished to go ahead with the NCR
    process, his trial in the criminal court would end and his case would be
    transferred to the ORB.

[34]

Trial counsel described his explanation of the
    courtroom procedure in these terms:

I spoke to Mr. Anderson about the procedure
    that would happen in court. I explained to him that if he wanted to accept the
    NCR verdict, we would convert the preliminary inquiry into a trial before
    Justice Stone. We would ask the judge to apply the evidence from the
    preliminary inquiry to the trial along with some additional reports. I said
    that the reports were essentially information that was already before the judge
    because they related to witnesses who had already testified at the preliminary
    inquiry. I explained that we would not dispute that evidence. This meant that
    while he was not admitting the evidence was true, he also would not be offering
    any evidence or argument to contradict it. As a result, the judge would likely
    accept the evidence and base his decision on it.

The Psychiatric Report

[35]

Dr. Jennifer Pytyck, a forensic psychiatrist at
    Ontario Shores, conducted the court-ordered psychiatric assessment of the
    appellant. She outlined the appellants extensive history of psychiatric
    treatment for substance abuse, agitation, aggression, suicidal ideation and
    schizophrenia. In her opinion, the appellant suffered from Schizoaffective
    Disorder  Bipolar Subtype. He displayed significant psychotic symptoms during
    the assessment period.

[36]

Dr. Pytyck concluded that, at the time of the
    predicate offences, the appellant showed significant symptoms of mania and
    psychosis. He had the delusional belief that his mother and brother were trying
    to steal from, and harm, him. His mother was hiding a secret twin sister. The
    appellant believed he was infested with insects. The appellant acknowledged that
    he was suicidal at the time of the alleged offences, which he denied
    committing.

[37]

Dr. Pytyck explained that, although the
    appellant may have understood the nature and quality of his conduct at the time
    of the offences, he likely lacked the faculty of rational perception with
    respect to his understanding of their wrongfulness.

The Arguments on Appeal

[38]

The appellant says that this appeal should be
    decided on the basis of the trial record as amplified by the affidavits filed
    in this court by the appellant and trial counsel. Neither affiant was
    cross-examined. This enhanced record enables this court to evaluate whether the
    appellant understood the nature of the proceedings and knowingly participated
    in them.

[39]

Before an accused may be found NCRMD, a trial
    court must make a finding that the accused committed the acts that formed the
    basis of the offence charged. Such a finding can only be made on the basis of
    evidence adduced at trial or where the accused admits those acts by pleading
    guilty. Neither happened here.

[40]

The appellant points out that when an accused
    pleads guilty, the presiding judge must conduct a plea comprehension inquiry.
    This ensures that the plea is voluntary, informed and unequivocal. No such
    inquiry took place here.

[41]

The appellant accepts that in some cases in
    which an accused does not, or cannot, admit that they committed the acts that
    formed the basis of the offences charged, it is common practice for the accused
    to:

i.

enter a plea of not guilty;

ii.

not contest the factual allegations of the Crown; and

iii.

make no submissions about or acquiesce in a finding of guilt.

(This procedure enables an accused to
    challenge any pre-trial rulings in this court, something a plea of guilty would
    foreclose.) Although not required in all cases, an inquiry similar to a plea comprehension
    inquiry is required in some, among them this case.

[42]

In this case, the appellant continues, he was
    more of a spectator or bystander than a participant in the proceedings that
    resulted in the NCRMD verdict. Nothing akin to a plea comprehension inquiry
    occurred. The proposed course of the proceedings was never explained to him in
    the courtroom. The appellants participation was extremely limited. Affirming
    his re-election. Acknowledging his return to Ontario Shores and supervision by
    the ORB
after
the verdict had been rendered. This despite
    well-documented, longstanding and severe mental health issues. Counsels
    inquiries are not a surrogate for the obligations of the trial judge to ensure
    the appellants understanding of the procedure followed and its consequences
    for the appellant.

[43]

The respondent demurs. Although the appellant does
    not contend that trial counsel provided ineffective assistance, his position
    pivots on whether he was properly apprised of the implications of the procedure
    followed and the consequences of a NCRMD verdict. The evidentiary foundation
    for the claim of uninformed participation is that the appellant cannot now
    recall conversations with trial counsel about the procedure to be followed, the
    NCRMD verdict, or its consequences for him. A review of the record of the
    proceedings as enhanced by the affidavit evidence affords no basis for the
    conclusion that a miscarriage of justice has occurred.

[44]

The underlying circumstances, the respondent
    says, belie the claim of uninformed participation. Throughout the three-day
    preliminary inquiry and the NCR proceedings, the appellant exercised several
    procedural and substantive rights. He was represented throughout by counsel
    with whom he had many conversations and discussions before and during the
    preliminary inquiry and before the NCR hearing. The preliminary inquiry
    involved a full preview of the case for the Crown. The witnesses were cross-examined,
    aided by information that could only have been provided by the appellant. As a
    result of exit pre-trials, the appellant was made aware of the strength of the
    case against him, the offences on which he would likely be ordered to stand
    trial, and the likely sentencing disposition were he to be convicted after
    trial.

[45]

This is not a case, the respondent
    continues, in which a plea inquiry was required. Absent a plea of guilty, no
    plea comprehension inquiry was required
.
    Nor did the fact that the appellant did not expressly admit the conduct that
    formed the basis of the offences charged require a plea comprehension inquiry.
    The additional evidence makes it clear that the appellant, who was fit to stand
    trial, had several discussions about the NCR verdict, its consequences for him
    and the procedural steps necessary to achieve that result. That he understood
    the process and its consequences is confirmed by his positive response when the
    verdict had been rendered:

THE COURT: So, the upside of this is that you will
    be returned to the Ontario Shores facility[.]

...

That means you will not ever have to face a
    judge and jury trial, this matter will be effectively concluded as far as this
    Court is concerned and I will be turning you over in effect to the Ontario Review
    Board[.]

...

Any questions, Sir?

ANDERSON: No, Sir. No, Your Honour, Im okay.

The Governing Principles

[46]

Precedent and principle, some substantive, some
    procedural in origin, help determine whether the appellant has been the victim
    of a miscarriage of justice.

[47]

The
Criminal Code
defines mental disorder. A mental disorder, s. 2

instructs us, is a disease of the
    mind. However, what the
Criminal Code
does not say is that, without more, a person who
    commits an offence when suffering from a mental disorder at the time of doing
    so has a defence to the charge. Or that they are excused from having committed
    it. This is because neither is so: Dennis J. Baker,
Textbook of
    Criminal Law
, 4th ed.

(London: Thomson Reuters, 2015), at para. 30-012.

[48]

What the
Criminal Code
does say is that some mental disorders may be so
    severe that they deprive an accused of the capacity for criminal intent. This
    occurs when the mental disorder deprives the accused of the capacity to
    appreciate the nature and quality of their conduct, or of the capacity to know
    that their conduct is wrong. It is in these instances, because of an incapacity
    for criminal intent, that the
Criminal Code
permits mental disorder to operate as an exemption
    from criminal liability:
R. v. Chaulk
, [1990] 3 S.C.R. 1303, at pp. 1321-23;
Criminal
    Code
, s. 16(1).

[49]

This exemption from criminal responsibility
    on account of mental disorder does not require entry of a designated or
    different plea. Said in a different way, there is no special plea of not
    criminally responsible on account of mental disorder. Section 606(1) of the
Criminal
    Code
describes the pleas available to
    an accused who is called upon to plead. Those pleas are the general pleas of guilty
    or not guilty, or the special pleas authorized by Part XX. Sections 607(1) and
    (2) describe the special pleas authorized by Part XX. Not among them is a special
    plea of not criminally responsible on account of mental disorder:
R.
    v. G. (D.M.)
, 2011 ONCA 343, 275 C.C.C
    (3d) 295, at para. 43.

[50]

Where an
    accused enters a plea of guilty, s. 606(1.1) of the
Criminal Code
requires the presiding judge to conduct the plea comprehension inquiry
    before accepting and giving effect to the plea. The purpose of this inquiry is
    to enable the presiding judge to be satisfied that the guilty plea is voluntary
    and informed and that the facts alleged by the Crown support the charge to
    which the plea has been entered. The failure of the judge to conduct a full
    plea comprehension inquiry does not affect the validity of the plea:
Criminal Code
, s. 606(1.2).

[51]

Neither s.
    606 nor any other
Criminal Code
provision requires or authorizes a plea
    comprehension inquiry where the plea entered is not guilty.

[52]

A plea of not
    guilty is an accuseds formal, in-court
denial
of having committed
    any offence to which the plea is entered. By pleading not guilty, an accused
    provides notice to the Crown and the trier of fact that the accused requires
    the Crown to prove each essential element of the offence to which the plea was
    entered beyond a reasonable doubt by evidence that is relevant, material and
    admissible. A plea of not guilty does not involve any admission by an accused
    about any essential element of the offence or the ability of the Crown to prove
    it:
G. (D.M.),
at paras. 40, 49 and 52;
R. v. P. (R.),
2013 ONCA 53, 295 C.C.C. (3d) 28, at para. 41, leave to appeal
    refused, [2013] S.C.C.A. No. 133.

[53]

Although the
    exclusive language of s. 606(1) forecloses a formal plea of
nolo contendre
, a practice which approaches its functional equivalence has developed in
    this province. The procedure is invoked frequently, but not exclusively, when
    the adequacy of the case for the Crown depends on certain evidence the
    admissibility of which is contested by the accused and is subject to pre-trial
    challenge and a ruling on admissibility. If the evidence is admitted, under a
    plea of not guilty, the accused accepts the case for the Crown, whether based
    on an agreed statement of facts or otherwise, and adduces no defence evidence.
    A finding of guilt follows. When this occurs, the accused preserves the right
    to challenge the evidentiary ruling on appeal, a right foreclosed if the plea
    had been guilty and could not be set aside on appeal. See
R. v. Fegan
(1993), 80 C.C.C. (3d) 356 (Ont. C.A.), at pp. 359-62;
R. v. Faulkner
, 2018 ONCA 174, 407 C.R.R. (2d) 59, at para. 92; and
R. v. Lopez-Restrepo
, 2018 ONCA 887, 369 C.C.C. (3d) 56, at paras. 25-26.

[54]

The procedure just described is not without
    its potential pitfalls. When this procedure is proposed, the presiding judge
    should engage in the functional equivalent of a plea comprehension inquiry to
    confirm the accuseds understanding of what is at stake by proceeding in this
    way:
Lopez-Restrepo
, at para. 27.
    Where an inquiry is not conducted, it is for the reviewing court to determine
    whether the absence of a formal inquiry has resulted in a miscarriage of
    justice because it compromised the fairness of the proceedings or contributed
    to an unreliable verdict:
P. (R.),
at para. 66.

The Principles Applied

[55]

As we will explain, we do not give effect to
    this argument. Despite some imperfections in the proceedings, we are satisfied
    that no miscarriage of justice occurred. Nothing that occurred or failed to
    occur compromised the overall fairness of the proceedings or the reliability of
    the NCRMD verdict.

[56]

As the amplified record in this case plainly
    shows, the appellant was represented throughout by competent defence counsel
    who, in accordance with the appellants original election, concluded a full three-day
    preliminary inquiry. The entirety of the case for the Crown was revealed under
    oath. The eyewitnesses. The responding police officers. The investigator from
    the Office of the Fire Marshal. The witnesses were cross-examined. The
    appellant and counsel spoke both prior to and each day of the preliminary inquiry.
    Counsel explained what he anticipated would unfold at each days proceedings.
    He also wanted to assess the appellants condition, especially in light of the
    appellants interruption of the proceedings during the evidence of his mother,
    his brother and a police officer.

[57]

As he foreshadowed at the outset of the
    preliminary inquiry, defence counsel and Crown counsel jointly requested an
    exit pre-trial with the (then) preliminary inquiry judge. After the initial
    exit pre-trial had been conducted, defence counsel told the appellant that if
    the case proceeded to trial and convictions were recorded, the Crown would seek
    a penitentiary sentence of three to five years. Defence counsel explained that
    the trial judge considered a sentence of five years would be appropriate.

[58]

In addition to the discussion about the sentence
    the Crown would seek on conviction after trial, the appellant and counsel
    discussed the NCR process. They had discussed this on prior occasions. Counsel
    explained that the judge was going to order an NCR assessment. This would take
    place in a hospital. The appellant would meet with doctors. The doctors would
    prepare a report for the judge. Counsel pointed out that if he (the appellant)
    were found NCRMD, he would remain at the hospital without a scheduled date for
    release. That release, counsel indicated, would depend on how well the
    appellant did in treatment. That release would be up to the ORB. The appellant
    agreed to proceed with the NCR assessment.

[59]

When the trial judge made the assessment order,
    he explained to the appellant that the assessment was for the purpose of
    deciding whether the appellant was exempt from criminal responsibility for the
    offences with which he was charged.

[60]

Counsel received the assessment report before
    the exit pre-trial resumed. He met with the appellant both before and after the
    exit pre-trial. He reviewed the report by summarizing the relevant portions
    including the Mental Status Examination and Psychiatric Opinions and Recommendations.
    The appellant appeared to understand the contents of the report, and that the
    report would be put before the judge and relied upon by him to decide whether
    he (the appellant) should be found NCRMD.

[61]

Counsel repeated the discussions he and the
    appellant had earlier had about the NCR process. Counsel explained what would
    happen to the appellant when he came under the authority of the ORB. Counsel
    told the appellant that if he wished to go ahead with the NCRMD process, his
    trial in the criminal court would be over. His case would be transferred to the
    ORB.

[62]

Counsel elaborated on what would happen in the
    courtroom if he wished to pursue the NCRMD process. The preliminary inquiry
    would be converted into a trial. The judge would be asked to apply the evidence
    given at the preliminary inquiry, along with some additional information. Defence
    counsel would not dispute that evidence. This meant that although the appellant
    would not be admitting that the evidence was true, he would not be offering any
    evidence or argument to contradict it. The judge would likely accept that
    evidence and base his decision on it.

[63]

In their discussion, the appellant and counsel
    also spoke about the option of a trial. Counsel would have explained the
    appellants right to have a trial but also advised the appellant that he did
    not see any viable defence arising out of the evidence.

[64]

In counsels view, the appellant understood his
    choices of trial and NCRMD. The appellant seemed engaged in the conversation
    with counsel and indicated that he wished to proceed along the path to a NCRMD verdict.

[65]

When proceedings resumed in the courtroom,
    defence counsel indicated that the appellant wished to avail himself of the
    NCR finding and proceed in that fashion today. In answer to a question from
    the presiding judge, defence counsel indicated that the appellant would
acknowledge and accept
the contents and
    conclusions of the psychiatric report which counsel had reviewed and discussed
    with the appellant.

[66]

The appellant confirmed defence counsels
    statement that he (the appellant) wished to have his case dealt with that day
    by the presiding judge. Defence counsel entered a plea of not guilty. The Crown
    asked that the trial judge consider the evidence that he had heard when
    presiding over the preliminary inquiry. Crown counsel then read a summary of
    the evidence of various witnesses who had testified at the preliminary inquiry
    and filed the psychiatric report prepared by Dr. Pytyck on the basis of the
    assessment order.

[67]

Defence counsel indicated that he did not
    dispute the evidence adduced at the preliminary inquiry or the additional
    allegations of the Crown. The defence called no evidence and made no
    submissions.

[68]

In brief reasons, the trial judge indicated his acceptance
    of the evidence adduced at the preliminary inquiry and the additional reports
    read in by Crown counsel. He found the appellant not guilty on two counts and
    entered acquittals. On the remaining counts, the trial judge found the
    underlying facts established to the standard of proof required, but that the
    appellant was not criminally responsible for that conduct on account of mental
    disorder.

[69]

As proceedings concluded, the following exchange
    occurred:

THE COURT: So, the upshot of this is that you
    will be returned to the Ontario Shores facility, is that correct?

[DEFENCE COUNSEL]: Thats my understanding,
    Your Honour.

THE COURT:  Okay.

[CROWN COUNSEL]:  Yes, sir.

THE COURT: That was mine as well, and they
    will work with you there until such time as the Ontario Review Board reviews
    and disposes of your matter. That means that you will not ever have to face a
    judge and jury trial, this matter will be effectively concluded as far as this
    Court is concerned and I will be turning you over in effect to the Ontario
    Review Board.

I heard some very interesting evidence in this
    case, Mr. Anderson, I hope you are able to apply yourself to some of the things
    that were said in the report by Dr. Pytyck and hopefully we will not see you
    back in a place like this.

ANDERSON:  No, thatd be great.

THE COURT:  Any questions, Sir?

ANDERSON:  No, Sir. No, Your Honour, Im okay.

[70]

In this case, the appellant was charged with
    several offences alleged to have been committed at his mothers home in the
    presence of his mother and brother. Police responded to a 911 call made by the
    appellants mother and witnessed some of the alleged offences as they
    continued. On the evidence adduced at the preliminary inquiry, which formed
    part of the record on which the verdict was rendered, no viable defence
    emerged.

[71]

No issue was raised about the appellants
    fitness to stand trial. He was represented by the same counsel throughout the
    proceedings with which we are concerned. The preliminary inquiry. The exit
    pre-trials. The order of an assessment to determine criminal responsibility.
    The re-election of mode of trial. The procedure to be followed. The
    consequences of that procedure. No claim of ineffective assistance is advanced.

[72]

The appellant says that he did not understand
    that the hearing before the trial judge would result in a NCRMD finding without
    a trial. He did not intend to accept the facts based on the evidence adduced at
    the preliminary inquiry and the additional summary read by the Crown. Nor did
    he intend to accept Dr. Pytycks assessment and conclusion. He claimed an
    inability to recall any advice by trial counsel about the meaning, process or
    repercussions of a NCRMD finding.

[73]

Trial counsel paints a very different picture.
    He and the appellant met and discussed the case before, during and after the
    preliminary inquiry during which the entirety of the case for the Crown was
    disclosed. Counsel also apprised the appellant of the discussions at the exit
    pre-trials. The sentencing position of the Crown and the judge  on conviction,
    a penitentiary sentence of three to five years  was also discussed.

[74]

During discussions about the exit pre-trials,
    defence counsel explained that the judge intended to remand the appellant to a
    hospital for a psychiatric assessment of the appellants criminal responsibility.
    This issue was not new for counsel and client. They had previous discussions
    about it. The appellant raised no issue about the process to him.

[75]

When counsel received the assessment report, he
    reviewed its significant features with the appellant and explained the NCRMD
    procedure and its consequences for the appellant. The appellant decided what he
    wanted to do.

[76]

The affidavit of trial counsel satisfies us that
    when proceedings resumed in the courtroom after completion of the exit
    pre-trials, the appellant was sufficiently aware of the options available to
    him about how the case would proceed. He was acquainted with the NCR process,
    the likelihood of a NCRMD verdict and its consequences of hospitalization and
    supervision by the ORB. Indeed, some of these aspects had been reiterated in
    open court. He participated in the re-election of mode of trial and accepted
    entry of a plea of not guilty, both features that counsel had previously
    explained to him. He was not required to abandon his prior disavowal of the
    underlying events or the diagnosis or conclusion of Dr. Pytyck, as would have
    been the case had he entered a plea of guilty.

[77]

The trial judge was not required to conduct a
    plea comprehension inquiry under s. 606(1.1) in the absence of a plea of
    guilty. Although it would have been preferable had the trial judge satisfied
    himself by inquiry of the appellant at the outset that the appellant was aware
    of the nature and effect of the proposed procedure, the affidavit of trial
    counsel satisfies us that the appellants participation was voluntary, informed
    and unequivocal. The appellants subsequent colloquy with the trial judge
    confirms as much.

[78]

Nothing that occurred or failed to occur in the
    trial proceedings rendered those proceedings unfair or the NCRMD verdict
    unreliable.

Disposition

[79]

For these reasons the appeal was dismissed.

Released: May 19, 2021 DW

David Watt J.A.

Alexandra Hoy J.A.

I.V.B. Nordheimer J.A.


