“The circumstances of this case demonstrate the dramatic consequences of being found NCRMD,” wrote Justice Gary Trotter, for the Court of Appeal, in R. v. Laming, 2022 ONCA 370.
Justice Trotter noted that “[B]eing caught up in this process sometimes results in long (if not indefinite) periods of detention in secure hospital settings that rival prisons for their deprivations of liberty. This is the case with those whose alleged crimes are grave, and those whose offending would not likely attract substantial, if any, carceral punishment upon conviction.”
“This is why procedural safeguards must be jealously guarded in this context,” he added.
In Laming the court heard that the appellant, Cameron Laming, was found NCRMD “on a charge of weapons dangerous” at his own request.
“That was almost three years ago. He remains detained in a hospital today,” the court explained.
According to court documents, Laming was “23 at the time of the incident giving rise to the charges” and “has lived with mental health issues since he was 15 or 16,” as well as “a long-standing history of substance abuse.”
In 2019, the court explained, Laming “approached a man and a woman who were sitting in a parked truck in Brockville. He told them he was a government agent, and that he was hurt. He was neither.”
Laming “pulled a knife from his pocket” and the “man in the truck slammed his door closed and called the police.”
According to court documents, Laming “walked away with his hands in the air; he then ran to a nearby bus stop.” He was arrested shortly after without incident and the police “found a folding knife in his pocket.”
“He told the police that he observed a gun in the truck and had a knife ready for his own protection,” the court explained, noting that Laming was “originally charged with weapons dangerous (Criminal Code, s. 88(1)); assault with a weapon (s. 267); and breach of a recognizance (s. 145).” However, the other charges were withdrawn when the Crown proceeded on the weapons dangerous charge alone.
According to court documents, the Crown “requested an assessment order under s. 672.11 of the Criminal Code” and “said that the assessment was ‘specifically as it relates to fitness.’ ”
“The presiding justice of the peace,” the court noted, “confirmed that the assessment was for fitness purposes, and not in relation to the issue of NCRMD. The appellant consented to the order.”
In a report (“the Brockville report”) written by Dr. Anthony Adiele, Laming was assessed as “fit to stand trial.”
The court noted that the report was a “wide-ranging document that goes well beyond what the author was tasked with doing.”
“It provides a detailed history of the appellant’s circumstances, including his ‘career goals,’ ‘financial status,’ ‘substance abuse,’ ‘anger control,’ and ‘offending history.’ This report also details considerable misconduct on the appellant’s part while he was at the hospital for the assessment,” the court added.
Then “the Crown and the appellant jointly requested that a NCRMD assessment be conducted at Waypoint Centre for Mental Health.” This report was written by Dr. William Komer (“the Waypoint Report”).
According to court documents, Komer noted that during the assessment Laming “expressed a strong desire not to be found NCRMD, which he thought could result in him remaining in the hospital for one to three years.”
“Nonetheless,” the court explained, Komer found that Laming “exhibited delusions of grandeur, claiming he was a ‘Greek God,’ ‘a Shaman,’ ‘a higher being,’ and ‘immortal.’ ”
“Dr. Komer concluded that the appellant met the criteria for a verdict of NCRMD,” the court noted, adding that this was not the first time Laming had been found NCRMD.
According to court documents, the appellant “was previously found NCRMD” in 2015 “in relation to a charge of uttering threats, on which the Crown proceeded summarily. He spent roughly 2 ½ years confined in the hospital.”
According to court documents, when asked about the NCRMD finding by the trial judge, the appellant said, “I’m prepared to accept it, sir.”
The trial judge, Justice Richard Knott of the Ontario Court of Justice, “entered the Brockville and Waypoint reports exhibits” and found Laming not criminally responsible.
On appeal, Laming sought to admit fresh evidence by way of a “Forensic Psychiatric Assessment prepared by Dr. Giovana de Amorim Levin.”
“In forming her opinion, Dr. Levin considered the Waypoint report. She noted that, during the Waypoint assessment and while she conducted her own assessment, the appellant was motivated not to be found NCRMD. She further observed that, at the NCRMD hearing, the appellant said he had no memory of the incident; however, during his various assessments, the appellant gave differing accounts of the events,” the court noted, adding that Levin opined that “Laming suffers from a serious mental illness, it is possible that his mental state at the time of the offence was caused by an intoxicant.”
Levin’s opinion was that Laming did not qualify for the “defence of NCR.”
Erin Dann, Embry Dann LLP
Justice Trotter noted that the “Brockville report was broad in scope” even though it was meant to determine fitness to stand trial only.
“The question of fitness is focused on an accused’s ability or capacity to participate in their trial. It does not address criminal responsibility. It is not meant to be a platform for sentencing recommendations,” he explained, adding that “the Brockville report contained numerous categories of irrelevant information.”
The judge also noted that “the lives of persons subject to Part XX.1 are perpetually documented, resulting in the creation of a personal archive.”
“Documents generated through assessments form part of this corpus and may be accessed in the future (i.e., at the Ontario Review Board, subsequent criminal proceedings, as well as proceedings under provincial mental health legislation). Thus, care must be taken in ensuring that assessment reports are contained by the purpose for which they are ordered. The assessment report in this case is already a well-traveled document. It is difficult to know what impact this report will have on the appellant’s life in the future, but it hardly seems as though it will be positive. This is regrettable because a good deal of its content was unnecessary,” he wrote, determining nonetheless that he was not persuaded that “the integrity of the NCRMD finding was undermined by the scope of the fitness report.”
“However,” he found “there were other shortcomings in the process leading up to the NCRMD finding” that “may not have been apparent as they unfolded in real time, but it is now clear that the cumulative effect of these deficiencies impacted on the fairness of the proceedings.”
“They also cast doubt on the reliability of the NCRMD verdict, especially when the fresh evidence is added to the mix,” he added.
Justice Trotter noted that the circumstances of the case “were far from ideal.”
“The appellant’s usual counsel was not in court that day. His associate was there on short notice. Moreover, although the appellant was aware of Dr. Komer’s recommendation in the Waypoint report, he was not provided with a copy of the report, not even after he told the trial judge that he had not seen it. Nor is it apparent from the transcript that counsel appearing on the appellant’s behalf had an opportunity to review the report. In the morning colloquy, there was even some confusion about whether the report had been sent in advance to the appellant’s usual counsel. This issue was never resolved,” he explained, noting that Laming was “equivocal that day about whether he wished to be found NCRMD.”
The judge stressed that the “circumstances of this case signalled the need for caution before moving forward. Unfortunately, this did not occur.”
“In this case, there was good reason to conduct some type of an inquiry into the appellant’s understanding of what was about to happen. Although the appellant claimed to have no memory of the events, this was flatly contradicted by the two assessment reports in which he provided his own, albeit differing, narratives. This should have raised red flags at this stage of the proceedings. Yet no inquiry was undertaken,” he explained, noting that “there was no formal inquiry into the appellant’s understanding of the process, his appreciation of the consequences of what he was about to do, and whether he genuinely wished to go down this road again.”
The Court of Appeal found that the “proceedings leading to the appellant’s finding of NCRMD were plagued by deficiencies that cast doubt on the authenticity of his consent to such a verdict.”
“Namely, there was a failure to sufficiently inquire into Mr. Laming’s plea of nolo contendere concerning the alleged facts, as well as his consent to an NCRMD verdict. Indeed, the reason for the appellant’s failure to dispute the facts — his intoxication at the time of the events — was relevant to the NCRMD finding. Either deficiency, on its own, would be notable; combined with the failure to provide sufficient reasons, they amount to a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code,” wrote Justice Trotter, noting he “would set the NCRMD verdict aside on this basis.”
Justice Trotter was “bolstered” in his conclusion “by the fresh evidence that has been tendered by the appellant.”
“It casts doubt on the opinion that the appellant was NCRMD at the time of the offences, and raises the question of whether his behaviour that evening may have been the result of his considerable ingestion of alcohol and drugs in the days preceding,” he explained, admitting the fresh evidence.
Justice Trotter, with Justices Grant Huscroft and Jonathon George in agreement, determined in a decision released May 5 to allow the appeal, “set aside the NCRMD verdict, and order a new trial.”
Dann told The Lawyer’s Daily that the “consequences of an NCRMD finding are profound and include the potential for indefinite detention and this decision sends a clear message from the Court of Appeal of the need for both counsel and trial courts to pay scrupulous attention to the procedural rights of accused persons when the issue of criminal responsibility is raised.”
“Before counsel seeks, or consents to an NCRMD verdict, on behalf of their client, they must ensure that the client is fully informed and understands the consequences of that finding,” she said, noting that “the decision in Laming also makes clear that judges must take a cautious approach even when it appears all parties agree an NCRMD verdict should be reached.”
“While there is no constitutional requirement for something akin to a ‘plea inquiry’ in every NCRMD case, the failure to conduct an inquiry, and ensure the accused person understands the implications of the NCRMD finding may well undermine the validity of that verdict, as it did here,” she added.
“I have no doubt that in most quick, consent NCR hearings, the Crown, defence counsel and judge are all acting in what they perceive, at the time, is in the accused's persons best interest. But that doesn’t make the NCRMD verdict legally justifiable. I hope the direction provided by the Court of Appeal in this case will encourage folks to slow down at consent NCRMD proceedings. The risk of indeterminate detention inherent in an NCRMD finding demands no less,” Dann said.
Dann noted that “the other important takeaway from this decision is the importance of assessors not straying well beyond the scope of the assessment orders — in this case the focus should have been on fitness.”
Anita Szigeti, Law and Mental Disorder Association
“Even where an accused person may at one point acquiesce to being found NCR, if their intention in this regard is not settled, this should be a red flag. Lawyers representing vulnerable mentally ill accused persons must ensure that their client’s position is fully informed and take into account the extreme liberty deprivation that can result from an NCR verdict,” she explained.
Szigeti noted that “this case had a fairly unique history that should have resulted in particular care taken around any discussion of NCR.”
“The appellant had been found NCR previously and that verdict was overturned on appeal, on the basis that the appellant had been misdiagnosed. That same ground of appeal was raised here and contributed to or bolstered the Court of Appeal's decision to overturn this second NCR verdict. This appellant also vacillated on whether he was agreeable to the NCR verdict this time. He opposed it when he appeared alone in the morning but did not contest when counsel appeared for him that same afternoon. All these things, whether alone or in combination, should have given all justice system participants great pause in considering an NCR verdict in this case. This was a clear case where the brakes on any NCR hearing should have been pulled. The case required more time and a closer, more careful look,” she said.
Szigeti also noted that “NCR is a little understood thing” and is “very unfortunately commonly referred to as the NCR ‘defence.’ ”
“It is not a ‘defence.’ It does not lead to an acquittal. As a result, as the court in this case points out, there is no such thing as a ‘plea’ of NCR,” she said, stressing that “NCR is a special verdict with special consequences.”
“The Court of Appeal has, once again, made it crystal clear that this is not acceptable. It’s not lawful, that NCR verdicts rendered without due processes prescribed by law will not be allowed to stand. All justice system participants, including the judiciary must understand that all the best intentions in the world, all the collective desire of Crowns, defence and judges, cannot and must not result in procedurally unfair NCR verdicts,” Szigeti emphasized, adding that in this case “everyone wanted to get this appellant out of jail and into treatment as quickly as possible.”
“None of those kinds of paternalistic concerns, however well-intentioned, can substitute for procedural fairness and due process,” she noted.
Szigeti also explained that the “consequences of an NCR verdict are potentially indeterminate detention in a secure custodial setting,” in effect, like an “imprisonment.”
“It is a myth to conceive of psychiatric detention as luxurious or even neutral in terms of its impact on liberty. An NCR accused may not have meaningful access to fresh air, to passes around hospital grounds or community access, let alone community living, for months or years after the verdict. Every aspect of the NCR accused’s life is strictly controlled the whole time they are detained or under community supervision,” she said, noting that “NCR accused spend an average of 10 years under the Review Board’s jurisdictions.”
“As a result, the NCR verdict is not a small or trifling thing, and it is not a ‘get out of jail card,’ ” she stressed.
“Before rendering such a verdict, strict procedural safeguards must be in place at every step of the process. Where the accused is a vulnerable person with serious mental health issues, as the court points out, this calls for greater scrutiny, and an enhanced commitment to making sure everything is done ‘by the book.’ This also includes giving the accused person an opportunity to review any psychiatric report and making sure their lawyer has received it with plenty of time to discuss it with their client. None of that even happened here,” she added.
“Although the case did not turn on this in the end,” Szigeti noted, “there is a helpful discussion about court ordered psychiatric reports and the potential harm caused by reports that exceed their specific mandate.”
“In this case a fitness assessment report was ordered, but the psychiatrist provided gratuitous additional commentary and made recommendations in effect going to sentencing. We do see in practice, fitness reports that inappropriately comment on broader other extraneous issues, such as the availability of NCR or appropriate detention security levels and placement recommendations. This practice is not lawful and should be avoided,” she explained.
The Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision.
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