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Criminal - NCR - Application. R. v. Lojovic [timing of application]
In R. v. Lojovic (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal conviction appeal, here where an NCR application was made after a contested trial:(3) NCR application
[15] Just after the trial judge delivered his reasons for conviction, Mr. Lojovic’s lawyer indicated that she had been instructed to bring an application for an NCR assessment pursuant to s. 672.11 of the Criminal Code.
[16] Immediately after the request was made, the trial judge raised the issue of whether it was appropriate for him to consider the issue after having rendered judgment on conviction, but then noted that s. 672.12 provides that the court can make an assessment order “at any stage of proceedings”.
[17] The submissions made by Mr. Lojovic’s trial counsel and the Crown on the issue were very brief. Based on the wording of s. 672.11, counsel for the Crown emphasized that, before ordering an assessment, the trial judge had to be satisfied that there were “reasonable grounds to believe” that the assessment would be necessary to determine whether Mr. Lojovic was suffering from a mental disorder at the time he committed the offence that would exempt him from criminal responsibility. Mr. Lojovic’s trial counsel simply submitted that the evidence Mr. Lojovic and Dr. Webb gave during the trial supported a finding that there were reasonable grounds to believe that he was suffering from such a mental disorder when he was driving on April 5, 2022.
[18] Shortly after hearing these submissions, the trial judge dismissed the application. In doing so, he stated that he had considered the evidence Mr. Lojovic and Dr. Webb gave at trial, and that their evidence did not suggest that an assessment would give rise to an NCR defence. He ultimately concluded as follows:I do not accept that an assessment is necessary to determine your criminal responsibility. You have already had a chance to raise that. You have had a chance to testify about your own state of mind. You have called an expert psychiatrist who could have given at least hypothetical evidence about what a manic episode could do to you in the context of driving an automobile. None of that happened. The trial is now over except for the sentence. ....
(i) Statutory test
[22] Section 16(1) of the Criminal Code provides that:No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. [23] Section 16(2) provides that every person is presumed not to suffer from a mental disorder under subsection (1) unless the contrary is proven on a balance of probabilities. In addition, s. 16(3) provides that the party raising the issue has the burden of proving a mental disorder.
[24] Section 672.11(b) gives the court the power to order an assessment to determine whether a person is suffering from a mental disorder pursuant to s. 16(1). Before ordering an assessment, the court must be satisfied that there are “reasonable grounds to believe that such evidence is necessary” to determine whether the accused was not criminally responsible:A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
....
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1). [25] Pursuant to s. 672.12(1), the court can make an assessment order “at any stage in the proceedings”.
(ii) The trial judge did not dismiss the application because of its late timing
[26] The appellant argues that the trial judge improperly dismissed the application because it was brought too late. I disagree.
[27] It is evident from s. 672.12(1) of the Criminal Code that the court can order an assessment to determine criminal responsibility at any stage in the proceeding. The trial judge was aware of this, based on his discussions with counsel for Mr. Lojovic and the Crown.
[28] Further, in his ruling rejecting Mr. Lojovic’s application, the trial judge did not state that the application was brought too late because he had already found him guilty. Rather, as he stated explicitly, his conclusion was based on the evidence he heard at trial from Mr. Lojovic and his psychiatrist.
[29] The threshold for ordering an assessment is whether there are reasonable grounds to believe that an assessment is necessary to determine whether, at the time Mr. Lojovic committed the offence, he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his actions or of knowing that they were wrong. By the time Mr. Lojovic brought his application, the trial judge had the benefit of the evidence from Mr. Lojovic and Dr. Webb to help him assess Mr. Lojovic’s state of mind at the time of the offence. It is evident that the trial judge dismissed the application because he did not consider a further assessment was necessary to determine Mr. Lojovic’s criminal responsibility, given the evidence he had already heard at trial.
[30] In his reasons for sentence, the trial judge provided a further explanation for not ordering an NCR assessment, which demonstrates that he dismissed the application based on the evidence at trial. In response to comments in the pre-sentence report attributed to Mr. Lojovic and his mother expressing frustration that he had not been found NCR, the trial judge explained that it was “not an option for” him to find Mr. Lojovic NCR. He elaborated as follows:The evidence about your mental state came nowhere near on the trial, to making you not criminally responsible. There is no question in my mind that when you hit Boris Brott and killed him and when you drove dangerously through many parts of Hamilton without any real rhyme or reason to your route, there is no question in my mind that a manic episode of your illness was at play. But it did not go so far as rendering you incapable of appreciating the nature and quality of your act, namely striking Boris Brott.
You testified in your own defence, and on your evidence, you knew that you had hit a pedestrian. You knew that it was bad. You were shocked, and so you continued driving away from the scene. That tells me that you knew what you were doing. You knew that it was wrong, and that you did not want to get caught by staying at the scene, so it is clear to me on that evidence that although suffering from a mental disorder, it was not a disorder that made you not criminally responsible. [31] When Mr. Lojovic’s trial counsel made the request for an assessment, she did not call any additional evidence or request an opportunity to do so. It was therefore evident that the application was to be based on the evidence at trial. Notably, on appeal, Mr. Lojovic has not brought a motion for fresh evidence, nor has he demonstrated that the trial judge erred in concluding that the evidence at trial did not provide reasonable grounds to believe that an assessment would be necessary to determine whether he was NCR at the time he committed the offence.
[32] This is different from a situation where an application for an assessment is made before trial, at a time when there may be very little evidence or information about an accused’s state of mind at the time of the offence. In this case, Mr. Lojovic and Dr. Webb had both already testified at trial. Mr. Lojovic specifically addressed his state of mind at the time he committed the offence. It was open to the trial judge to rely on that evidence to deny the request for an assessment. While it would have been an error for the trial judge to rely on the timing of the request as the sole basis for denying an assessment, the timing of the request was relevant because, by the end of trial, the trial judge had heard evidence from Mr. Lojovic and Dr. Webb and he was in a position to consider that evidence in deciding whether there were grounds for ordering an assessment.
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