R. v. Anderson, 2015 ONCJ 472

Citation: R. v. Anderson , 2015 ONCJ 472 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. CHARLIE ANDERSON COURT PROCEEDINGS BEFORE THE HONOURABLE JUSTICE C.M. HARPUR on July 22, 2015, at BARRIE, Ontario. APPEARANCES : M.A. Alexander Counsel for the Crown V. Zenobio Counsel for Charlie Anderson ONTARIO COURT OF JUSTICE TABLE OF CONTENTS Exam. Cr.- Re- WITNESSES : In-Ch. exam. exam. None.

EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE None. RULING 1 Transcript Ordered: . . . . . . . . . . . . . . . July 27, 2015 Transcript Completed: . . . . . . . . . . . . . . July 28, 2015 Notified Ordering Party:. . . . . . . . . . . . . July 30, 2015 WEDNESDAY, JULY 22, 2015 R U L I N G HARPUR, J. (Orally) Counsel, this is my ruling with respect only to the application by the Crown for a declaration of mistrial as opposed to the application concerning a removal from the record of Mr. Zenobio. Ms. Alexander for the Crown has applied to me for a declaration of mistrial. The sequence of events leading to the application are as follows.

One, by information laid March 13, 2013, Mr. Anderson was charged with the aggravated assault of Philip Berry. The Crown proceeded by indictment. Two, on January 23, 2014, Mr. Anderson elected trial by Superior Court judge and jury and requested a preliminary inquiry. Three, the case was pre-tried. Both at the pre-trial and at other times, the Crown advised Mr. Zenobio, for the defence, that, at the preliminary, the Crown would be seeking committal on a charge of attempted murder.

Four, subsequently, the Crown and the defence reached agreement on a disposition: a plea to the aggravated assault charge and a joint submission of imprisonment in the range of five to seven years, together with ancillary orders. Five, on the date set for the commencement of the preliminary inquiry before me on September 15, 2014, Mr. Anderson entered a plea of guilty to the aggravated assault charge. His plea was confirmed by Mr. Zenobio and Mr. Anderson to be informed and voluntary. The facts were read in supporting the charge and I made a finding of guilt.

The matter was put over to November 14, 2014 for the preparation of a Pre-Sentence Report, the acquisition of victim impact statements and the preparation of sentence submissions. Six, on November 14, 2014, on my own initiative I ordered an assessment of Mr. Anderson’s mental health pursuant to the Mental Health Act . My order was based on the absence of any violent or criminal activities in Mr. Anderson’s past as confirmed in the Pre- Sentence Report, together with the extreme violence toward Mr. Berry in which he had engaged in committing the offence.

I sought an explanation of the criminal conduct for sentencing purposes. Seven, on December 23, 2014, I received from forensic psychiatrist, Dr. Jeffrey Van Impe, a psychiatric evaluation of Mr. Anderson. The report concluded that Mr. Anderson suffers or suffered from “schizophreniform disorder whereby the psychotic symptoms are present for a significant portion of time during a one-month period but for less than six months”. The evaluation suggested that an assessment of criminal responsibility may be warranted. I proceeded to order that assessment. Eight, on March 17, 2015, I received Dr.

Van Impe’s criminal responsibility assessment. It concluded that Mr. Anderson had available to him in relation to the charge a defence of not criminally responsible on account of mental disorder. Mr. Anderson’s case was remanded several times, eventually to May 29, 2015 to set a date for a hearing on the issue of criminal responsibility. Nine, on May 27, 2015, the Crown filed an application for the declaration of mistrial and an order removing Mr. Zenobio as counsel of record. And, ten, on May 29, 2015, I received brief submissions from Ms. Alexander and Mr. Zenobio on the mistrial and removal issues.

I adjourned the application to today’s date and have heard further submissions. I turn to the parties’ positions. Ms. Alexander submits that Mr. Anderson has resiled from the plea bargain struck between him and the Crown prior to the plea. That bargain, the Crown says, was one in which the Crown forfeited the prospect of gaining a committal on an attempt murder charge at the conclusion of the preliminary inquiry in return for Mr. Anderson’s plea. That plea, the argument goes, was made in conformity with section 606(1.1) of the Criminal Code and was implicitly a relinquishing by Mr.

Anderson of all potential defences, including that of lack of criminal responsibility. Thus, the Crown says, Mr. Anderson is now seeking to back away from the agreement implemented by the plea by proposing to avail himself of the

section 16 Criminal Code defence and my permitting Mr. Anderson to do so would give rise to a reasonable apprehension of bias. Alternatively, or perhaps simply looking at the same argument from another perspective, Ms. Alexander submits that for me to proceed to conduct the NCR hearing when it was I who prompted the medical reports ultimately containing Dr. Van Impe’s NCR opinion, would give rise to reasonable apprehension of bias justifying a declaration of mistrial.

Mr. Zenobio submits that the Crown has not been prejudiced, that the emergence of the NCR issue is simply a natural, if unanticipated,path of this prosecution and that it should be permitted to run its course. Mr. Zenobio also queries the court’s jurisdiction to, effectively,override Mr. Anderson’s re-election to this court. It should be said that nothing in the sequence of events to which I have referred leads me to the conclusion that either Mr. Zenobio orMr.

Anderson was at the time of the making of the plea bargain or the entry of the plea acting other than in good faith or on the basis ofwhat was then known of the state of Mr. Anderson’s mental health. The current dilemma, if that is the proper characterization, is theresult of Dr. Van Impe’s post-plea identification of a serious mental illness suffered by Mr. Anderson which, in the doctor’s opinion,precludes criminal responsibility. I turn to analysis. My jurisdiction to declare a mistrial seems to find its basis, on the one hand, in

section 669.2 of the Criminal Code and, on the other, onmy inherent jurisdiction to control the process of my court, as recognized at common law. There are two authorities: R. v. Bucholz,[1976] O.J. No. 1046, a decision of the Ontario Court of Appeal; and R. v. Jessman, [1975] BCJ No. 860, a decision of the BritishColumbia Superior Court. Typically, mistrial applications are tied to the concept of bias or a reasonable apprehension of bias. Here, striving to be objective, I amnot able to find either in the stages of this matter to date or in the prospect of my continuing to preside over future steps.

I am notpersuaded that “an informed person viewing this matter realistically and practically”, in the language of Committee for Justice andLiberty v. National Energy Board, (SCC), [1978] 1 S.C.R. 369, would conclude that my permitting this matter to proceedbefore me creates an appearance of bias against the Crown. The request I made for a Mental Health Act assessment was expressly forthe purpose of sentencing Mr. Anderson. The advisability of its acquisition was something in which the Crown and defence concurred. That assessment necessarily called for the NCR assessment which, in turn, led to the NCR opinion.

This is not a case of the court ferreting out evidence of potential disadvantage to one of the parties. However, I accept that neither a mistrial declaration pursuant to

section 669.2 of the Criminal Code, nor pursuant to the Court’s inherentjurisdiction, is contingent upon bias or apprehension of bias. Grounds for such a declaration are present where, for any reason, there isreasonable apprehension either party will not have a fair trial if the current trial continues. I also accept that the impossibility of a fairtrial, or in this case a fair disposition, need not stem from misconduct. It is the impossibility which matters, not its source. Thus, while I do not find Mr.

Anderson to be contravening his plea bargain - parenthetically this would better be characterized asfrustration than breach in what I recall of contract law - that fact is not a bar to a declaration of mistrial. Nor in my view is the fact that Mr. Anderson’s re-election would be, effectively, nullified by a declaration of mistrial. Re-election is nota step in the proceeding attracting some form of special status or sanctity precluding a declaration of mistrial when justice requires it.

Thus the question devolves to this: What, if any, will be the unfairness imposed upon the Crown by a continuation of the proceeding asit currently exists? Ms. Alexander says that the Crown will have lost its prospect of committal for attempted murder without the concomitant benefit of an“undisturbed” plea and sentence on aggravated assault. With respect, I do not see this as necessarily the case. If an NCR hearing proceeds and Mr. Anderson is found criminally responsible,the Crown is in the very position it obtained through the plea bargain: the aggravated assault plea is intact and the sentencing hearingawaits.

If, however, Mr. Anderson is found not criminally responsible in that hearing, can the Crown rightly claim a disadvantage in its pursuitof the public interest? There will be a difference between where the Crown might have been, assuming that this issue arose at asubsequent point in the prosecution. Mr. Anderson will be declared not criminally responsible in respect of a charge of aggravated

assault where otherwise he would or might have been so found in respect of attempted murder. There may be distinctions between the manner in which a court or the Ontario Review Board would deal with a person found NCR for the latter offence, which would not be part of the disposition or future procedure with the former, distinctions which need to be maintained to best give effect to the public interest. However, I have not been made aware of such distinctions in this hearing and I am not persuaded of their existence. Rather, as Mr. Zenobio submits, Mr.

Anderson is not resiling from his admission of the horrifying facts of this incident resulting in great harm to Mr. Berry and those facts, regardless of their label by way of criminal charge, will be before the court or the Ontario Review Board at the time of and subsequent to a disposition under

section 672.45 of the Criminal Code should Mr. Anderson be found not criminally responsible. For these reasons, the Crown’s application for a declaration of mistrial is dismissed. FORM 2 Certificate of Transcript Evidence Act , subsection 5(2) I, Phyllis Torrance, certify that this document is a true and accurate transcript of the recording of R. v.

Charlie Anderson, in the Ontario Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No. 3811_07_20150722_083154_HARPURM, which has been certified in Form 1. ________________ _______________________________ (Date) PHYLLIS TORRANCE, ACT ID 4026163594 Photostatic copies of this transcript are not certified and have not been paid for, unless they bear the original signature of PHYLLIS TORRANCE in blue ink, and accordingly are in direction violation of the Administration of Justice Act , Ontario Regulation 94/14 .