2017 ONSC 2044, 2017 ONSC 2044

CITATION : Her Majesty the Queen v. Costa, 2017 ONSC 2044 COURT FILE NO.: 87/15 DATE: 20170403 ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT B E T W E E N: ) ) Her Majesty the Queen ) ) ) Mr. Sean Bradley, for the Respondent ) Respondent ) ) - and - ) ) ) Carmelo Costa ) ) ) Mr. Daniel Goldbloom, for the Appellant ) Appellant ) ) ) ) HEARD: December 19, 2016 and March 29, 2017 REASONS FOR JUDGMENT [On appeal from the judgment of Cooper J. dated February 24, 2015, and the Order of Harris, J. made on January 12, 2015] CONLAN, J. Introduction

[ 1 ] This is a

Summary Conviction Appeal brought by Mr. Costa. [ 2 ] On February 24, 2015, before Cooper J. in the Ontario Court of Justice sitting in Burlington, Mr. Costa was tried on charges of unlawful possession of a controlled substance (a relatively small amount of cocaine) contrary to section 4(1) of the Controlled Drugs and Substances Act and breach of recognizance (by possessing the cocaine) contrary to section 145(3) of the Criminal Code . [ 3 ] In a nutshell, the facts were that Mr. Costa was the lone passenger in a taxi during the evening of December 21, 2014.

The operator activated the vehicle’s emergency help button as he observed Mr. Costa smoking crack in the rear. Police stopped the vehicle. Less than 4 grams of crack cocaine were found on Mr. Costa’s person. At the time, Mr. Costa was the subject of a Recognizance of Bail which included a term that he not consume or possess non-medically prescribed drugs. [ 4 ] On the arrest date, Mr. Costa made some strange comments including that he had some type of official immunity from prosecution for possessing and smoking crack. [ 5 ] On both counts, after trial, Mr.

Costa was found not criminally responsible on account of mental disorder. He was ordered detained in a hospital. [ 6 ] Since then, Mr. Costa has been at the St. Joseph’s Healthcare facility in Hamilton, Ontario. [ 7 ] Prior to the trial date, on January 12, 2015, Harris J. of the Ontario Court of Justice (“Application judge”) had granted the Crown’s Application for an assessment of Mr. Costa under

section 672.12 of the Criminal Code to determine whether Mr. Costa was suffering from a mental disorder at the time of the offences so as to exempt him from criminal responsibility. [ 8 ] That assessment report, dated February 5, 2015, concluded that Mr. Costa, at the time of the offences, suffered from schizophrenia and cocaine dependence disorder. The authors stated that “[a]s a result of his mental disorder Mr.

Costa was unable to know the legal and moral wrongfulness of his actions” (page 14). [ 9 ] Finally, it should be noted that the Order made on January 12, 2015 was precipitated by a fitness assessment Order, which Order produced a report that concluded that Mr. Costa was indeed fit to stand trial. [ 10 ] To summarize, the chronology went as follows: (

i) fitness assessment Order, followed by (ii) fitness report, the conclusion of which was that Mr. Costa was fit, followed by (iii) criminal responsibility assessment Order, followed by (iv) that assessment report, which concluded that Mr. Costa was not criminally responsible, followed by (

v) the trial, where verdicts of not criminally responsible were rendered. The Grounds of Appeal [ 11 ] In writing, Mr. Costa submitted the following: (

i) that the Application judge erred in making the assessment Order, (ii) that the trial judge erred in that the verdict on the breach of recognizance charge was unreasonable, and (iii) that Mr. Costa’s trial counsel was ineffective. [ 12 ] The second ground was not spoken about at all in argument. It has effectively been abandoned. [ 13 ] In oral argument at Court on March 29 th , counsel for Mr. Costa summarized the grounds of appeal as follows: (

i) ineffective assistance of counsel on two distinct bases – (

a) failure to follow Mr. Costa’s instructions to oppose the assessment Order regarding criminal responsibility (“NCR Order”), and (

b) failure to withdraw from the case due to having been fired by Mr. Costa or at least in the face of a breakdown in the lawyer-client relationship, and (ii) error on the part of the Application judge in making the NCR Order when it was not on consent and not at trial and not after Mr. Costa had placed his mental state in issue. [ 14 ] Some elaboration of the Appellant’s arguments would be useful to the reader. [ 15 ] On the first component of the claim of ineffective assistance of trial counsel, it is submitted that counsel acted contrary to Mr.

Costa’s instructions in facilitating, rather than opposing, the Crown’s request for the NCR Order made on January 12, 2015. [ 16 ] Trial counsel, it is submitted, failed to explain to Mr. Costa the consequence of the Application judge reviewing the report generated from the earlier fitness assessment, which report it is said was a protected statement and not admissible without consent.

The consequence, it is submitted, was that the fitness report contributed to the granting of the NCR Order. [ 17 ] The second component of the claim of ineffective assistance of trial counsel is self-explanatory; it is submitted that Mr. Costa did everything he could to communicate his desire to not be represented by trial counsel, yet counsel remained on the file. [ 18 ] The other ground of appeal rests on the decision of the Ontario Court of Justice in R. v. Vassell , [2013] O.J.

No. 2848 . [ 19 ] Both counsel advised that they found no case that has followed the decision in Vassell, supra . [ 20 ] In that case, the Crown applied for an assessment order on the issue of criminal responsibility. The application, not on consent, was brought under paragraph (

b) of subsection 672.12(3) of the Criminal Code . [ 21 ] For convenience, set out below are subsections (1) through (3) of

section 672.12 . Where court may order assessment 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.

Limitation on prosecutor’s application for assessment of fitness

(2) Where the prosecutor applies for an assessment in order to determine whether the accused is unfit to stand trial for an offence that isprosecuted by way of

summary conviction, the court may only order the assessment if (

a) the accused raised the issue of fitness; or (

b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is fit to stand trial. Limitation on prosecutor’s application for assessment

(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder atthe 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 allegedoffence, on account of mental disorder. [22] The Court in Vassell, supra, at paragraphs 26 through 28, held that an assessment order for criminal responsibility may be made“at any stage of the proceedings” only if the issue of criminal responsibility is raised by either the court or the accused (but not by theCrown).

Where the issue is raised by the Crown, the words “at any stage of the proceedings” do not apply, and the assessment order canbe made only in accordance with the decision of the Supreme Court of Canada in R. v.

Swain, (SCC), [1991] 1 S.C.R.933, that is upon the accused putting his/her mental capacity for criminal intent into question or after a finding of guilt has been made. [23] The Appellant submits that the NCR Order made here was made on application by the Crown and not in accordance with Swain,supra, thus, as was done in Vassell, supra, the application ought to have been dismissed as being premature. [24] More specifically, it is submitted that the NCR Order was made before Mr.

Costa put his mental state in issue or was foundguilty, and thus, it “violated his right to control his own defence as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms”(page 1 of the Appellant’s Factum). [25] The Crown argues that Vassell, supra was wrongly decided and ought not to be followed by this Court. The Appeal Hearing [26] This Appeal was heard over two days in Milton, Ontario – on December 19, 2016 and March 29, 2017. [27] On the first day, trial counsel, Robert Brooks, and Mr.

Costa both testified. [28] On the second day, submissions were made by counsel. [29] As well, the Appellant’s Application to adduce fresh evidence was allowed, and the affidavits of Mr. Costa and trial counsel(which formed the bases of the cross-examinations at Court in December 2016) and the transcript of the testimony delivered that daywere filed. [30] Finally, the Crown filed some additional materials as well. [31] First, a report from St. Joseph’s Healthcare in Hamilton dated April 20, 2015, which report recommended that Mr.

Costa bedetained in a Secure Forensic Unit (page 18). [32] Second, the Ontario Review Board’s Disposition dated May 22, 2015, which ordered, among other things, that Mr. Costa bedetained at a Secure Forensic Unit of the facility in Hamilton. [33] Third, the reasons for that ORB disposition. [34] It is agreed by counsel that the Court not rely upon any of the facts or opinions expressed in those additional materials filed bythe Crown. They were filed simply (

i) for narrative purposes to fill-out the chronology of events after the trial and up to the Appealbeing launched, (ii) for the recommendation of the facility, and (iii) for the ORB’s disposition. The Standard of Review and the Basic Legal Principles [35] Under section 686(1)(

a) of the Criminal Code, there are three discrete bases for this Appeal to be allowed: (

i) the verdict isunreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and (iii) there was amiscarriage of justice. [36] Absent an error of law or a miscarriage of justice, the test to be applied by this Court is whether the findings of the judge beloware unreasonable or cannot be supported by the evidence. Factual findings are entitled to deference, absent palpable and overridingerror. It is not the purview of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12.

[37] A verdict is unreasonable if it is one that a properly instructed jury or judge could not have rendered. R. v. P.(R.), 2012 SCC 22, [2012] 1 S.C.R. 746. [38] In our case, there is no challenge to the reasonableness of the NCR verdicts. The Appeal boils down to the second and thirdbases outlined above. [39] On the issue of ineffective assistance of trial counsel, in R. v. Meer, 2016 SCC 5, the Supreme Court of Canada confirmed thatthe law remains that as set out in its decision rendered more than sixteen years ago in R. v. G.D.B., 2000 SCC 22. [40] The following principles may be gleaned from the decision in G.D.B., supra: (

i) effective assistance of trial counsel iscritically important to the truth-seeking function of our adversarial criminal trial process; (ii) ineffective representation can negativelyaffect the fairness of the trial in one or both of two ways: (

a) the reliability of the verdict, and (

b) the fairness of the process; (iii) it is nottrue, however, that a miscarriage of justice will necessarily flow from every instance of ineffective representation; (iv) to succeed on anappeal based on ineffective assistance of trial counsel, it is not enough to show that the lawyer’s performance (acts and/or omissions) wasincompetent because it must also be shown that a miscarriage of justice resulted from that incompetence; (

v) incompetence is determinedon a reasonableness standard; (vi) there is a strong presumption that the lawyer’s performance fell within the relatively wide range ofreasonable professional assistance; (vii) the onus is on the appellant to rebut that strong presumption; and (viii) a miscarriage of justicecan take many forms but will generally relate to (

a) a finding that the lawyer’s incompetence compromised or prejudiced the reliability ofthe verdict, and/or (

b) a finding that the lawyer’s incompetence caused serious procedural unfairness. [41] We also know from G.D.B. supra that the proper approach to the hearing of an appeal based on ineffective assistance of counselis to start with the miscarriage of justice inquiry. If there is no prejudice found, then the appeal ought to be dismissed for that reasonalone, without any need to examine whether the lawyer’s performance was incompetent.

Analysis and Conclusion Ineffective Assistance of Counsel [42] In oral argument at Court on March 29th, counsel for the Appellant made some able submissions but said very little aboutwhether there was any prejudice or miscarriage of justice occasioned by the conduct of trial counsel. [43] That is unfortunate, as that inquiry must be at the forefront of the analysis. [44] Ultimately, after the Court asked some questions of counsel for the Appellant, the submission was made at the conclusion of oralargument that the conduct of trial counsel led to an appearance of trial unfairness. [45] I disagree.

There was no miscarriage of justice. There was no real prejudice to Mr. Costa. Finally, the NCR Order wouldinevitably have been made even if trial counsel had done what it is alleged he should have done. [46] Putting aside the fitness report which the Appellant takes issue with in terms of it being relied upon to make the NCR Order,from the very outset, this case screamed for there to be an inquiry as to whether Mr.

Costa was suffering from a mental disorder. [47] He told police officer Boisclair that he had immunity to smoke crack (see the officer’s notes contained in the Appeal Book). [48] He said in the presence of police officer Jaswal that he was a diplomat with the United Nations, and that he looked to the skyand was told by God to smoke crack (see the officer’s notes contained in the Appeal Book). [49] On December 23, 2014, he told the Justice of the Peace in Court that he was God and Jesus (see the transcript). [50] On December 24, 2014, he told the Justice of the Peace in Court that he was God and Jesus, and that he had internationalimmunity, and that the hemisphere is gone, and that he is the president of the United Nations and the Swiss Bank (see the transcript). [51] On January 7, 2015, he told the Judge in Court that he had international immunity, and that his ships got blown up in Europe,and that he is God and Jesus.

He also spoke about the hemispheres, the universe, and the stars (see the transcript). [52] On January 12, 2015, the date that the NCR Order was made, he told the Judge in Court that he is the president of the UnitedNations and chairman of the Swiss Bank.

He also spoke about having “high clearance” to smoke cocaine, and he talked about theuniverse and the hemisphere (see the transcript). [53] On February 9, 2015, he told the Judge in Court that his passport shows that he has immunity arising from being “RoyalCommission” (see the transcript). [54] On February 12, 2015, he asked the Judge in the Courtroom to look at his passport to check on his claim of immunity (see thetranscript). [55] On February 24, 2015, the trial date, he testified in a totally and completely incoherent manner, speaking about things like God,Jesus, the United Nations, the Swiss Bank, planets, aliens, stars, the hemisphere, poison from space, living with the Kennedy family inWashington (presumably the political family), and so on (see the transcript).

There is no need to belabor the point as this Court’sintention is not to disrespect Mr. Costa in any way. [56] In light of all of the above, to suggest that there is anything that trial counsel could have done to avoid the NCR Order beingmade, at some stage, is simply unreasonable. [57] There is no suggestion that Mr. Costa ever changed his instructions to plead guilty to anything, thus, a trial was inevitable. So

were findings of guilt as there is no question that Mr. Costa possessed crack on the date in question and breached his bail accordingly, and there is equally no question that any alleged defence of immunity, whatever that means, would have failed. [ 58 ] Further, there is no suggestion that Mr. Costa ever changed his desire to testify at the trial. Based on that testimony alone, never mind what preceded it, any trial judge, and any prosecutor as an officer of the Court, could not possibly have remained mute in the face of the ramblings of a man who was clearly suffering from some sort of mental health problem.

The NCR Order would surely have been made at that time, if not before. [ 59 ] The fact that the NCR Order was made the month before the trial in no way prejudiced Mr. Costa. It would have been made at trial, at the latest, in any event. [ 60 ] Put another way, absent a withdrawal of the charges or guilty pleas to them being entered by Mr. Costa, neither of which was in the cards, it was inevitable that a trial would be held, Mr.

Costa would testify and the NCR Order would be made at that time, whether at the instance of the Crown or the Court itself. [ 61 ] What happened here is nothing to be ashamed of or looked upon suspiciously. Mental illness is just that – an illness. Those who are exempt from criminal responsibility on account of a mental disorder do not belong in jail and do not deserve to be treated like criminals. [ 62 ] Mr. Costa is not in jail. And he is not being treated like a criminal.

He may be upset that he has been detained for more than two years now, and that is likely why the Appeal was launched in the first place (Mr. Costa admitted as much when he testified in this Court in December 2016), but this is not an exercise in Monday-morning quarterbacking. [ 63 ] It would be improper for this Court to conclude that Mr. Costa’s Appeal should succeed because if he had just fallen on the sword and pleaded guilty he would have been a free man long ago. Evidently, there is good reason why Mr. Costa is still where he is.

The additional materials filed by the Crown, to the limited extent that counsel agree this Court may rely upon them, only serve to illustrate the degree of Mr. Costa’s mental illness. [ 64 ] Because of the lack of any miscarriage of justice or real prejudice to Mr. Costa (including the lack of any appearance of trial unfairness), the claim of ineffective assistance of trial counsel must fail. [ 65 ] In

summary, in the language of G.D.B., supra , nothing that trial counsel did or did not do compromised the verdicts or amounted to serious procedural unfairness. [ 66 ] In the event that I am wrong on that conclusion, however, I will add that I see nothing incompetent, measured on a reasonableness standard, in the conduct of trial counsel. [ 67 ] Specifically, I disagree that he failed to follow his client’s instructions on the NCR Order, and I disagree that he ought to have withdrawn from the case. [ 68 ] On the former, counsel told the Judge in Court on January 12, 2015, in clear and unequivocal terms, that Mr.

Costa was opposed to the Crown’s application for the NCR Order (see the transcript, at page 5, line 27). He also told the Judge that his client believed that he had a defence to the charges on their merits as he had a licence to possess and smoke crack (page 21, lines 23-25). [ 69 ] It is true that the Crown did most of the talking before the Judge at Court on the date that the NCR Order was made, and it is true that counsel for Mr. Costa could have made further submissions against the making of the NCR Order, but that is not the standard to be applied.

He followed his client’s instructions and clearly opposed the Crown’s request. [ 70 ] It is also true that counsel for Mr. Costa consented to the Application judge looking at the fitness report, and I agree that the said fitness report likely contributed to the making of the NCR Order. [ 71 ] I accept the evidence of trial counsel in this Court, however, that he relied on his experience as a legal aid mental health panel member and long-time criminal defence lawyer and tried to balance the competing interests. On the one hand, Mr.

Costa wanted a speedy trial, and an adjournment to force the Crown to call the author of the fitness report would have been contrary to that objective. On the other hand, Mr. Costa did not want to be assessed again, and consenting to the Application judge reviewing the fitness report would likely have hastened the NCR Order being made. [ 72 ] In that difficult situation, trial counsel made a judgment call. That call, to consent to the Application judge looking at the fitness report, was probably made without clear instructions from Mr. Costa.

That is not ideal and should not generally be encouraged, but it definitely does not amount to incompetence. [ 73 ] On the issue of whether trial counsel should have withdrawn from the case, I do not see any reason for him to have done so. It would have only victimized Mr. Costa even further, leaving him self-represented. In addition, I accept the evidence of trial counsel in this Court that Mr. Costa was inconsistent at times on whether he wanted trial counsel to continue.

A reading of the transcripts, as a whole, supports that. [ 74 ] Sure, it is possible to pick out one line here or there which amounts to a clear indication that Mr. Costa does not wish trial counsel to represent him. But there are other instances where it is clear on the record that Mr. Costa is content with trial counsel continuing, including on the two key appearance dates of January 12, 2015 (page 5 of the transcript, lines 20-23) and February 24, 2015 (page 3, line 12 and page 5, line 17, for example, where Mr.

Costa freely consults with trial counsel and refers to him as his lawyer). [ 75 ] There was no ineffective assistance of trial counsel. This ground of appeal fails. The NCR Order

[ 76 ] There is no merit to this argument. [ 77 ] There is no need for this Court to decide whether Vassell, supra should be followed. [ 78 ] Assuming without deciding that the judge in that case is correct, the fact is that the NCR Order in our case was made in accordance with Swain, supra – it was made on application of the Crown but only after Mr.

Costa had placed his mental state in issue. [ 79 ] There is no requirement, even as reasoned by the judge in Vassell, supra , that the accused place his mental state in issue at trial . [ 80 ] In open Court, in the presence of a prosecutor and judicial official, repeatedly beginning from the very first appearance on December 23, 2014, Mr.

Costa made unprovoked remarks that clearly placed his mental capacity in issue. [ 81 ] That pattern continued in Court on the very date that the NCR Order was made, before it was made. [ 82 ] It amounts to cruel and unusual punishment of the mentally ill to say that someone like Mr. Costa had to be locked up in a remand facility until he testified at trial, whenever that occurred, and formally placed his mental state in issue through sworn or affirmed viva voce evidence. [ 83 ] That is not what Vassell, supra stands for. That is not what the legislation says.

That is not what any Court decision says that I was provided with. And that is not what good public policy would require, in my view. [ 84 ] There was no error made by the Application judge, and no wrong decision made on a question of law. [ 85 ] This ground of appeal fails, and the Appeal is therefore dismissed. ___________________________ Conlan, J. Released: April 3, 2017 COURT FILE NO.: 87/15 DATE: 20170403

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT B E T W E E N: Her Majesty the Queen Respondent - and – Carmelo Costa Appellant REASONS FOR JUDGMENT Conlan, J. Released: April 3, 2017