R. v. Vassell, 2013 ONCJ 333

COURT FILE NO. 13 501, 13 17107, 13 20134, 13 906 and 13 910 Citation: R. v. Vassell, 2013 ONCJ 333 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MATTHEW D. VASSELL Application heard by Justice Lloyd Dean on May 30, 2013 S. Cote ….……………………………………………………………………………… for the Crown M. O’Hearn …………………………………………………………………………… for the Accused RULING ON S.672.12 (3)(

b) APPLICATION DEAN J.: Introduction 1 This matter is before the court as a result of an application by the Crown on May 30, 2013, pursuant to

section 672.12 (3)(

b) ofthe Criminal Code. The application is contested by the accused. Background 2 The accused faces charges on five separate Informations. The charges relate to allegations of uttering death threats and breachesof probation. The charges cover a time period from on or about the fifth day of March 2013 up until on or about the sixth day of May2013. The Crown has elected to proceed by way of indictment on all charges. As of the date of the application before the court theaccused remains in custody on the charges. 3 On April 30, 2013 my colleague, Justice G.

DeMarco ordered an assessment with respect to fitness of the accused to stand trial. That assessment was as a result of an application brought by the accused. 4 The assessment was performed by Dr. William Komer. In his report dated May 13, 2013, he gave the opinion the accused was fitto stand trial. It was also the doctor's opinion that there may be an issue with the accused criminal responsibility with regard to mentaldisorder at the time of his alleged offences. Dr. Komer recommended the accused be assessed regarding his criminal responsibility.

Asa result, on May 30, 2013, the Crown brought the application that is the subject matter of this ruling. Position of the Parties 5 The Crown argues the report of Dr. Komer provides the court with reasonable grounds to make the order for assessing whetherthe accused was not criminally responsible as result of a mental disorder (“NCRMD”). The Crown relies on two cases to support itsapplication, R. v. Wride [1997] M.J. No. 508 (Man. Q.B.) and R. v. Dodangoda (ON CJ), [2007] 47 O.R. (3d) 428(O.C.J.).

6 Defence counsel questions the timing of the application, arguing the Crown has not met its burden of proving the accused has committed the offences, and therefore suggest the application of the Crown is premature. Having said that, defence counsel went on to focus its argument on the report of Dr. Komer, and argues it does not provide enough evidence to meet the test of “reasonable grounds to doubt”, as required by s. 672.12 (3) (b). To support its argument the defence relies on the cases of R. v. Rackham [2012] B.C.J. No. 2811 (B.C. Prov. Ct.) and R. v. John Doe [2011] O.J. No. 52 (S.C.J.) . Analysis 7 The following Criminal Code sections are relevant with respect to my ruling: 16.

(1) 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.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue . 672.11 A court having jurisdiction over an accused in respect of an offence 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 ... (

b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1).... 672.12

(1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or , subject to subsections (2) and (3), on application of the prosecutor. …

(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if (

a) the accused puts his or her mental capacity for criminal intent into issue; or (

b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder. 672.21(1) In this section, "protected statement" means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction. …

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of …

(

e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mentaldisorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity forcriminal intent into issue, or if the prosecutor raises the issue after verdict; … [Emphasis added] 8 Prior to February 4, 1992 the provisions of the Criminal Code which dealt with the mentally ill were based on Britain's CriminalLunatics Act, 1800 (U.K.) c. 94, which was drafted in the early 1800s.

The main provisions allowed the Lieutenant-Governor to issue awarrant to keep an "insane" offender indefinitely in a forensic hospital. In R. v. Swain, (SCC), [1991] 1 S.C.R. 933,the provisions were found to be antiquated and unconstitutional. The main provisions were struck down by the Supreme Court. Thecourt held that giving the Crown an unrestricted right to raise the issue of NCRMD against the wishes of the accused violated theaccused’s s. 7 Charter right to control his or her own defence, but that right was not absolute.

The court identified two importantobjectives capable of grounding a s. 1 Charter limitation on the s. 7 right of the accused. In order to satisfy those objectives, the courtheld that the s. 7 right would be minimally impaired if the common law rule were altered to permit the Crown to raise NCRMD in twosituations. First, when the accused puts his or her mental capacity for criminal intent into question, the Crown is entitled to leadevidence of insanity to provide the trier of fact with a complete picture.

Second, once the trier of fact has made a finding of guilt, butbefore a conviction is entered, the Crown may lead evidence to show that the appellant should be found NCRMD. The court ruledpostponing the introduction of the NCRMD issue until after there has been a finding of guilt preserved the s. 7 right of the accused tomake fundamental decisions about the conduct of his or her defence against a criminal charge. 9 As a result, the entire part of the Criminal Code addressing mental disorder (except s. 16) was repealed and replaced. Ninety-fivesections were enacted in 1992.

The sections comprehensively address the process and procedure when someone might be unfit to standtrial and the effect of being found not criminally responsible by reason of mental disorder.

Section 16 was amended accordingly. 10 Some might wonder if after the new provisions were enacted whether the procedure set out in Swain, supra, limiting when theCrown can lead evidence to show the accused was NCRMD is still applicable. 11 As set out above, s. 672.12 (1) states, 672.12

(1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on applicationof the accused or, subject to subsections (2) and (3), on application of the prosecutor. [Emphasis added] 12 Does the use of the words “at any stage of the proceedings” apply to the court, the accused and the prosecution? Does the use ofthe word “or” before the reference is made to the prosecution eliminate the phrase “at any stage of the proceedings” from applying to theprosecution?

I have looked to cases decided since the enactment of the provisions in 1992 to see if the authorities still applied the rulingmade in Swain. Review of case law 13 In the case of Wride, supra, a 1997 case relied on by the Crown, the Manitoba Court of Queen’s Bench upheld the trial judge’sdecision to order an assessment of the accused with respect to NCRMD on the application of the Crown and contested by the defence. Itwould appear from reading the case the Crown brought the application prior to any evidence being called. There appears to have beentwo main arguments by the defence.

The defence argued allowing the Crown to bring the application undermined the accused’s right tocontrol his defence and his right to silence. The other argument surrounded the fact the Crown proceeded by indictment and wastherefore according to the defence precluded from bringing the application. While the court reproduced s. 672.12 in its entirety and

made clear references to subsection 3(b), nothing was said explicitly about the court regarding the timing of the application. No mentionof the Supreme Court’s ruling of Swain is made. The fact that one of the arguments from defence counsel was that if the application wasallowed it would undermine the defence, would lead me to believe the Queen’s Bench, by upholding the Provincial court judge’s ruling,had no concern about the timing of the application. 14 The other case relied on by the Crown, Dodangoda, supra, involved a decision to order an assessment regarding NCRMD afterthe accused had been convicted.

To be fair to the Crown, the case was not put forward for the purpose of supporting the Crown’s timingof the assessment application. 15 The Alberta Court of Appeal in R. v. Wells, 2004 ABCA 371, appears to be of a different view than the Manitoba Queen’s Benchwhen it sated at paragraph 10: [10] The Crown’s ability to raise the issue of an accused’s mental capacity is governed by the decision of the Supreme Court ofCanada in Swain. Swain confirmed that when an accused does not want to rely on a s. 16 defence of NCRMD, the Crown may raise theissue independently.

By doing so the Crown helps ensure that an accused is not wrongly convicted. However, in order to be minimallyintrusive on the accused’s right to control the conduct of his defence, the Crown must wait to raise the issue until the trier of fact hasdecided the accused is guilty of the offence. If the accused is acquitted, the Crown cannot raise the issue. 16 In 2004, Brophy J., in the case of R. v. Weir [2004] O.J. No. 4819 (O.C.J.), in a judgment given orally stated: 1 This issue comes to me today for a ruling on an application that has been made by the crown attorney with respect to Mr.

BrianClifford Weir, to find him not criminally responsible for the offences that he is before the court on; this, of course, dealing with mattersin which Mr. Weir has plead not guilty and has been found guilty, if I can say so, on a provisional basis until this matter is dealt with.This is pursuant to the procedure that has been dictated in R. v.

Swain, a 1991 decision of the Supreme Court of Canada, reported at (SCC), 63 C.C.C. (3d) 481. 2 The protocol that has been adopted as a result is that the defence did not wish to advance this position, and the crown is proscribedfrom doing so unless it has been raised by the defence in the trial proper, or alternatively, and this has occurred in this case, after therehas been a trial on the merits of the case itself, and the crown is then in a position at what might be described as the sentencing stage, tobring the application. 3 With respect to this matter, in the trial proper, the crown, with the cooperation of the defense, read in the facts, and as a result of thefacts being received by the court and not contested, there was a finding of guilty.

So the crown was then at liberty, pursuant to Swain, tobring this application. 17 In the case of R. v. John Doe [2011] O.J. No. 52, Trotter J. of the Ontario Superior Court described the issue before him asfollows: This application raises questions about when, and on what basis, a court may make an assessment order pursuant to s. 672.11 of theCriminal Code. 18 John Doe was before Trotter J. as a result of having been committed to trial on a number of offences. The Crown applied for anassessment to determine whether, at the time of the alleged offences, Mr.

Doe was suffering from a mental disorder of such a magnitudethat he was not criminally responsible by virtue of s. 16 of the Criminal Code. The trial was to take place a few months after the date ofthe ruling on the application. Mr. Doe resisted the application.

The argument led by defence counsel surrounded whether the Crown hadproduced sufficient evidence to meet the requirements of s. 672.12 (3)(b), specifically stated as “reasonable grounds to doubt that theaccused is criminally responsible”. 19 While Trotter J. states in the first paragraph of his ruling that the matter before him concerns ”when” a court may make anapplication, nothing further is mentioned about the timing of the application in the rest of his decision. His ruling focuses on thewording found in s. 672.11, “reasonable grounds to believe”.

He ultimately concludes the material before him does not meet thatcondition. That leads me to believe that he was not referring to the timing of the application by using the word “when”. He must havebeen referring to the conditions that must be met before the court may make an assessment order. The issue of timing does not appear tohave been on the minds of the parties or Trotter J.. There is no mention of the Supreme Court’s ruling in Swain.

20 In the 2008 Ontario Court of Appeal judgment, R. v. Pietrangelo, 2008 ONCA 449 , 233 CCC (3d) 338, the courtreferred to the Supreme Court’s ruling in Swain and stated: [48] In R. v. Swain, (1991), (SCC), 63 C.C.C. (3d) 481, the Supreme Court of Canada held that giving the Crownan unrestricted right to raise the issue of NCRMD against the wishes of the accused violates the accused’s s. 7 Charter right to controlhis or her own defence. However, Swain also held that the right to control one’s own defence is not absolute.

The court identified twoimportant objectives capable of grounding a s. 1 Charter limitation on the s. 7 right of the accused.

First, the court at p. 509 refers to“the principle of fundamental justice that the criminal justice system not convict a person who was insane at the time of the offence.” Second, the court at p. 512 mentions the need to protect “the public from presently dangerous persons requiring hospitalization.” [49] In order to satisfy those objectives, the court held that the s. 7 right would be minimally impaired if the common law rule werealtered to permit the Crown to raise NCRMD in two situations.

First, when the accused puts his or her mental capacity for criminalintent into question, the Crown is entitled to lead evidence of insanity to provide the trier of fact with a complete picture. Second, oncethe trier of fact has made a finding of guilt, but before a conviction is entered, the Crown may lead evidence to show that the appellantshould be found NCRMD. Postponing the introduction of the NCRMD issue until after there has been a finding of guilt preserves the s.7 right of the accused to make fundamental decisions about the conduct of his or her defence against a criminal charge.

However, oncethere has been a finding of guilt, the Supreme Court held that it is a reasonable limitation on the rights of the accused to permit theCrown to introduce the issue of NCRMD to satisfy the dual objectives of preventing the justice system from labeling the insane ascriminals, and protecting the public from individuals who pose a risk to society and who require treatment. 21 The treatment of Swain by the Court of Appeal in this province makes it clear the ruling in Swain is still applicable. 22 In their book Mental Disorder and the Law, the learned authors Hy Bloom and Richard Schneider (Toronto: Irwin Law, 2006) atpage 110, paragraph B wrote: …As a result of the Supreme Court of Canada decision in R. v.

Swain, a new common law rule established that the Crown may also raisethe “defence” over the accused’s objection at one of two junctures. 23 The authors then go on to state the two junctures as stated by the Supreme Court. They restate the same point on p. 113,paragraph C (2).

Clearly, the authors are of the view that Swain is still applicable. 24 Further support for the conclusion that the Crown must wait to raise the issue of NCRMD until one of those two junctures, isfound in s. 672. 21 which deals with the use of protected statements, 672.21(1) In this section, "protected statement" means a statement made by the accused during the course and for the purposes of anassessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone actingunder that person's direction. …

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of … (

e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mentaldisorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity forcriminal intent into issue, or if the prosecutor raises the issue after verdict; … [Emphasis added] Conclusion 25 I think it is appropriate for me to reproduce s. 672.12 (1) here:

672.12

(1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or , subject to subsections (2) and (3), on application of the prosecutor. [Emphasis added] 26 It is my view that the court or the accused can raise the issue of NCRMD at any stage of the proceedings.

Section 672.12 (1) and 672.11 (

b) work together to govern both those scenarios. When the Crown attempts to raise the NCRMD issue

section 672. 12 (3) governs. 27 Based on the authorities and text referred to above it is my view that the “or” in s. 672.12 (1) separates the words “at any stage of the proceedings” from applying to the Crown. That conclusion is consistent with the Supreme Court’s ruling in Swain . 28 I conclude the Crown can only raise the issue of NCRMD at the two junctures as set out in Swain . To conclude otherwise would cause the

section to be open to the same constitutional challenge as in Swain with almost certainly the same result. 29 Therefore, the Crown’s application is premature and is dismissed. Dated this 12th day of June, 2013. ____________________________ Justice Lloyd Dean Ontario Court of Justice