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Faulty NCR finding quashed

‘Miscarriage of justice’ concludes the Ontario Court of Appeal

By Linda Nguyen

July 13 2012 issue

Joseph Di Luca at his downtown Toronto law office with Breese Davies, co-counsel on behalf of Christopher Evans. [Photo by Paul Lawrence for The Lawyers Weekly]
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A man held in a mental institution for seven years after being found not criminally responsible for attempting a robbery at a bank machine suffered a “miscarriage of justice” when he was initially misdiagnosed with schizophrenia, the Ontario Court of Appeal has ruled.

The original finding made against Christopher Evans, in 2005, was set aside and replaced with a conviction for robbery and a one-day sentence, in light of the time the 28-year-old man had already spent in custody.

“The time in custody by the appellant is outside the range of any sentence he would have received had he pled guilty to the robbery charge,” said Justice Sarah Pepall in R v. Evans [2012] O.J. No. 2688, released on June 18.

That decision was issued a few days before the Crown stayed charges against a Toronto woman who spent nearly two years in custody on a breach of recognizance charge, after a judge found her not criminally responsible (NCR)?—??a ruling later overturned by the Superior Court.

The cases highlight the need for greater caution in the criminal justice system when dealing with defendants with mental health issues, legal experts say.

Joseph Di Luca, co-counsel for Evans in his appeal, said in many cases those entering the criminal justice system view an NCR finding as an “easy way out” of a long sentence. 

In reality this is usually not the case, he said.

“Sadly, right now, on the vast majority of minor criminal offences, minor to even medium severity, the length of time in custody in hospital, is likely to far exceed the amount of time spent in jail,” said Di Luca, of the Toronto firm Di Luca Copeland.

Evans was arrested in 2005 after he asked a couple using a drive-through bank machine for money. When the driver refused, he threw a kitchen knife into their van and said he had AIDS. 

At trial, psychiatrist Dr. William J. Komer testified that Evans, who was then 21 years old, suffered from a mental illness “consistent” with schizophrenia, and had a history with anti-social personality disorder and substance abuse.

As a result, Evans entered a guilty plea to robbery and was remanded to the Ontario Review Board, which has held him in custody for the past seven years. 

In March, 2007, an in-custody psychiatrist suspected that Evans was not suffering from schizophrenia. A second psychiatrist came to the same conclusion, in a report filed as part of fresh evidence on the appeal.

Dr. Komer examined Evans again in the fall of 2011 and stood by his original conclusions. But he agreed that at the time of the robbery a diagnosis that was the “best fit,” was that the psychosis was triggered by substance abuse.

The Court of Appeal concluded that the psychiatric evidence did not support the NCR finding, which Justice Pepall described as a “miscarriage of justice,” with Justices John Laskin and Eleanore Cronk concurring.

Di Luca, who was co-counsel with Breese Davies, said this decision shows why courts need to be cautious in making NCR findings at trial. 

“What this case and others like it signal is a view by the courts that they need to be careful in assessing the validity of mental health claims — and those who are truly mentally ill — to determine whether that mental illness fits the Criminal Code,” he said. 

The Ministry of the Attorney General provides training for staff who deal with mental health issues. Cases such as Evans are “very rare,” spokesman Brendan Crawley said in an e-mail. 

Lynne Hanson, an adjunct assistant law professor at Queen’s University in Kingston, Ont. suggested that lengthy periods in custody for people found to be NCR might deter them from divulging their mental illness.

She said there are some specialized mental health courts, including one in Toronto, to address these issues. “It’s an attempt to try to divert people from going to prison, to assess them quickly and not put them through a revolving door of a criminal conviction when they really are ill,” said Hanson, whose research is focused on mental health law. 

Toronto defence lawyer Christopher Murphy said that, although this is the intention, sometimes the courts “run out of patience” in these cases.  “Those with mental illness get a lot of extra slack but at some point that slack runs out, he said. “Being in custody is supposed to be a last resort but it is not a last resort; for these people it is first and last resort.”

Murphy recently acted as amicus curiae in an appeal by 51-year-old Astrida Kankis, who spent 680 days in custody after she was found guilty of breach of recognizance for sending six non-threatening letters to her ex-boyfriend’s family.
Justice Sheila Ray, a provincial court judge, made an NCR finding against Kankis in a hearing “conducted in a manner that undermined the integrity and fairness of the process,” said Superior Court Justice Gary Trotter in R. v. Kankis [2012] O.J. No. 192.

During her trial in 2010, Kankis, who represented herself, was given half an hour to go through a lengthy psychiatric report without the aid of a pencil or highlighter. After she expressed a desire for a lawyer, the court continued to go ahead with the hearing and a request for a two-week adjournment was then denied. 

The maximum sentence for her crime, if she had not been found NCR, was six months in jail. Justice Trotter ordered a new trial earlier this year and the Crown stayed charges on June 20.

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