Defence counsel should not have raised fitness issue in absence of accused

Ontario criminal | Appeal

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Defence counsel should not have raised fitness issue in absence of accused

Accused charged with criminal harassment and uttering death threat. Accused went to his ex-wife’s apartment after she left their son at home with male friend. Accused pounded on door and demanded to see his son. Ex-wife contacted police and they escorted accused away. Accused then made many calls to complainant over several days calling her names and saying that if anything happened to their son she would “leave earth”. At outset of trial defence counsel raised issue of accused’s fitness before accused was brought to court and referred to solicitor-client communications. Accused was assessed and found to be fit. Following accused’s conviction defence counsel requested assessment of accused’s mental health and criminal responsibility. Defence counsel was instructed not to pursue NCRMD defence but Crown sought NCR hearing. Psychiatrist at hearing testified that accused suffered from alcohol-induced dementia and so did not appreciate that his actions were morally wrong because he believed he was protecting his son. Trial judge found that accused was not criminally responsible by reason of mental disorder. On appeal accused testified that NCRMD defence was first raised contrary to his instructions and alleged that his counsel had been incompetent. Accused gave confusing and contradictory answers on instructions he gave when cross-examined on appeal. Appeal dismissed. Accused was not prejudiced by defence counsel’s performance. Defence counsel should not have raised fitness issue in absence of accused or disclosed privileged communications but finding that accused was fit negated any prejudice. Accused failed to show that defence counsel raised NCRMD issue without instructions and counsel opposed NCRMD finding when his instructions changed.
R. v. Szostak (July 19, 2012, Ont. C.A., Rosenberg, Cronk and LaForme JJ.A., File No. C49582) Decision at 75 W.C.B. (2d) 21 was affirmed. 103 W.C.B. (2d) 111 (44 pp.).

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