New & Notable: No good deed goes unpunished

Robert Ellis attacked his parents with a club and sword.  He pleaded guilty to two counts of assault with a weapon.  He was found not criminally responsible (“NCR”) pursuant to s. 16 of the Criminal Code.  He appealed, arguing that his counsel was incompetent and that the NCR finding was unreasonable.  The Ontario Court of Appeal resoundingly and unanimously dismissed the appeal: 2012 ONCA 906


The Crown sought and was granted an assessment of Ellis’ mental condition.  The first psychiatrist said that he was fit to stand trial and was likely criminally responsible. 

The Crown sought and was granted a second assessment.  The second psychiatrist said that Ellis had an NCR defence available to him based on his mental state at the time of the offence. 

The trial judge relied heavily on the evidence of the second psychiatrist in finding that Ellis was NCR. 

At his first hearing before the Ontario Review Board (“ORB”) approximately two months after the NCR finding, he was ordered detained in a medium secure psychiatric unit.  After his second hearing, one year later, the ORB ordered him detained in a maximum secure unit and the year after that, made the same disposition.


Incompetence of counsel argument

Ellis argued that his lawyer failed to represent him effectively by failing to follow his instruction to oppose the second assessment and because counsel’s approach to and conduct of the NCR hearing resulted in an unfair process and unreliable verdict.

Pursuant to the test set out in R. v. B.(G.D.), 2000 SCC 22, Ellis was required to establish that his counsel’s acts or omissions constituted incompetence and that a miscarriage of justice resulted.  

The Court of Appeal had no difficulty finding that counsel’s representation was “entirely professional.”  Regarding the complaint that counsel had ignored instructions to oppose the second assessment, the Court found that the complaint was not supported by the record; the first psychiatrist supported a second assessment and the second assessment could have supported the first.  “In short, a second assessment was probably inevitable and desirable and it was a proper exercise of professional judgement for trial counsel not to oppose it” [para 10].

The Court also gave short shrift to the suggestion that, had counsel approached the case differently, the result would have been different.  There was much evidence about Ellis’ decline in functioning and bizarre behaviour around the time of the offence and it all combined to provide ample evidence to support an NCR finding.

The Court recognized the often difficult position into which defence counsel who represent the mentally ill are placed:

This case presented a difficult problem for defence counsel.  The appellant, by his own admission, had committed two very serious assaults on his parents.  The attacks and the surrounding circumstances suggested that the appellant may suffer from some sort of mental disorder.  The appellant, however, had adamantly denied having any mental problems and indicated he acted as he did because he was drunk.

Counsel appreciated that the appellant faced either a long term in the penitentiary or an NCR finding and detention subject to subsequent order of the ORB.  He knew that the expert opinion as to the appellant’s mental state was divided [paras 12 and 13].


Counsel in this case resolved this tension by canvassing the possible outcomes with his client.  Although Ellis was adamant that he would not agree to an NCR finding or any statement that he was mentally ill, he accepted that counsel could proceed by not objecting to the further mental assessment and by not ultimately resisting an NCR finding.  The Court of Appeal found nothing unethical or tactically unreasonable in this strategy.


Unreasonable verdict

The Court considered the evidence of the gradual decline in Ellis’ functioning, his bizarre actions and thoughts, the circumstances of the attack and Ellis’ behaviour afterwards and determined that it militated in favour of an NCR finding.  Once it was combined with the evidence of the second psychiatrist, the NCR finding became “far removed from being unreasonable.”

In this case, the Ontario Court of Appeal recognizes the practical realities faced by defence counsel who choose to take on the work of representing some of the most vulnerable members of society – the mentally ill.  In recognizing the difficulties faced in obtaining and then following the instructions of these clients while trying to represent them effectively, the Court lends support to these counsel who play a most important role.