Court File and Parties

Date: 2013-01-29

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Akinola Isaac

Before: Justice Carol Brewer

Heard on: May 9, October 19, December 3, 6 and 10, 2012

Reasons for Judgment released on: January 29, 2013

Counsel:

• Dayna Arron, for the Crown
• Vivian Ropchan, for the defendant, Akinola Isaac

Judgment

Brewer J.:

Introduction

[1] This is a ruling on an application by the Crown for an assessment of Akinola Isaac's fitness to stand trial pursuant to section 672.11(a) of the Criminal Code. The defence opposes this request, taking the position that Mr. Isaac suffers from deafness, which is not a mental disorder, and that he possessed a rudimentary understanding of the fitness concepts.

[2] Mr. Isaac is 26 years old. He is deaf and cannot speak. Mr. Isaac was raised in a village in Nigeria and came to Canada in January 2008. His only form of communication is a type of sign language developed by his family. He is illiterate.

History of the Matter

[3] On June 30, 2008 Mr. Isaac was charged with sexual assault and sexual interference on four year old D.B. and with assaulting her mother, L.B.. It is alleged that when the child was playing in a park, the defendant pulled her off the ladder of a slide. While holding D.B. with one hand Mr. Isaac grabbed at the child's breasts, buttocks and vagina with his other hand. L.B. rushed over to the defendant and pleaded with him to release her daughter. Mr. Isaac refused to release the child and continued fondling her vagina. Ms. L.B. punched the defendant and pulled her child from his grasp. The defendant tried to regain possession of the child by grabbing Ms. L.B.'s arm twice. When Ms. L.B. took out her cell phone to call 911, the defendant swatted it from her hand. Ms. L.B. began to scream at the defendant. Mr. Isaac turned and ran towards a young girl who was riding her bike.

[4] Mr. Isaac was arrested and later released on a recognizance with his parents as his sureties. One term of the recognizance placed the defendant under house arrest unless he was in the company of his surety, or an adult designated in writing by his surety. Another condition required Mr. Isaac to carry his bail papers at all times and to produce them to a police officer on demand.

[5] On October 20, 2008 Mr. Isaac was charged with sexual assault and two counts of breaching his recognizance. It is alleged that the defendant left his residence alone just after dinner, without the knowledge or permission of his parents. He went to a dollar store in a nearby shopping mall. Mr. Isaac followed 26 year old N.W., who was carrying her son. As Ms. N.W. bent to pick up an item from a lower shelf, the defendant came up behind her and grabbed the complainant by the waist and vaginal area. Ms. N.W. knocked the defendant away. Mr. Isaac released his grip, stepped back, smirked and grabbed his crotch area. He was arrested and detained in custody.

[6] On January 29 and February 6, 2009 the Crown made an application for a fitness assessment before Schneider J. In a ruling, dated March 9, 2009, Justice Schneider held that being deaf and unable to speak is not a mental disorder or a disease of the mind: see R. v. Isaac, [2009] O.J. № 5804 (C.J.). Therefore Mr. Isaac's inability to communicate did not fall within the definition of 'unfit to stand trial'. The application was dismissed.

[7] Through collaboration between the Crown, defence counsel and community stakeholders, arrangements were made to obtain training for Mr. Isaac in a secure and naturalistic setting to determine whether the defendant could learn American Sign Language (ASL). It was planned that Mr. Isaac would attend the Ontario Camp for the Deaf with family support, from his parents, and expert support, from Dr. James MacDougall and Liisa Kuuter of the Canadian Hearing Society. Derek Rumball, the Executive Director of the Bob Rumball Centre for the Deaf, provided supervision of the defendant for 18 hours a day. Akinola Isaac arrived at the camp on July 3, 2009 and was asked to leave on July 5, 2009 for security reasons. There were two incidents that prompted this request. First, the defendant gave "forced hugs" to a 10 year old camper, that made the girl feel very uncomfortable. After this incident, Mr. Isaac's father communicated with the defendant for about an hour in the family's sign language about the impropriety of approaching young girls in any way at all. The second incident involved Akinola Isaac approaching a teenaged female counsellor from behind, and giving her an aggressive hug. This occurred in the presence of Derek Rumball, who felt that if he had not intervened, the physical contact would have become "more than inappropriate".

[8] On July 6, 2009, the defendant was returned to jail when his parents applied for relief from their obligations as his sureties. Mr. Isaac was charged with sexual assault on March 15, 2010. The complainant is L.M., a social worker who had been working with the defendant on a daily basis at the Maplehurst Correctional Centre. It is alleged that, as the defendant, Ms. L.M. and a correctional officer were walking down hall, Mr. Isaac reached behind Ms. L.M., grabbed her left buttock and squeezed it. Ms. L.M. swept the defendant's hand away and made a gesture indicating "no". The defendant later made another attempt to grab Ms. L.M., which was not successful.

[9] On June 16, 2010 Dr. Delia Wallis conducted a psychological assessment of Mr. Isaac for the purpose of seeking funding for a placement of the defendant in a secure deaf facility. Dr. Wallis is a psychologist who is experienced in working with deaf persons. Dr. MacDougall, who had previous contact with Akinola and his family, accompanied her. Efforts by the two doctors to communicate with the defendant were only minimally successful. Their attempts to engage him in non-verbal cognitive testing were unsuccessful. Mr. Isaac's adaptive functioning was assessed through a review of his records and by having his mother complete a standardized questionnaire. Dr. Wallis' opinion was:

It may be that the lack of communication and the significant social, cultural and linguistic isolation as a deaf newcomer, with no understanding of his current situation, imposed by living in a facility [Maplehurst Correctional Centre] without access to understanding has precipitated a deterioration in his communication skills. What is certain is that his extremely limited communications skills at present proved a significant barrier to testing and, as a result, no formal quantitative results are available from current testing of Mr. Isaac's intellectual functioning. This, despite the individual and combined expertise of Dr. MacDougall and the examiner in working with deaf people with varying levels of intellectual and communicative capacities. While no formal quantitative test results of intellectual functioning are available, it is clear that Mr. Isaac's adaptive skills and communication skills are in the extremely low range, similar to those of someone with a developmental disability. Based on the information available, and current presentation, a formal diagnosis of developmental disability, severity unspecified, is made.

[10] On June 14, 2011 an application by the defence for a stay of proceedings was commenced before me. The basis for application was that Mr. Isaac is being denied fundamental justice, as he cannot meaningfully participate in his trial as a deaf person with no knowledge of ASL. Dr. MacDougall estimated that it would take two to three years for the defendant to acquire ASL with a reasonable degree of fluency, under full-time supervision in the community. The application was interrupted by the current request by the Crown for a fitness assessment.

[11] Throughout these proceedings, extensive, on-going, collaborative efforts have been made to secure funding to permit Mr. Isaac to be housed at the Bob Rumball Association for the Deaf (BRAD) in Milton. That facility is a secure residence for high risk or high needs deaf people that are the hardest to serve. It is common ground that, despite the best efforts of the correctional officials, Mr. Isaac's special needs are not being met in a jail environment. The defendant cannot stand trial because he lacks the language with which to participate in a trial. He requires a secure placement in a deaf group home with staff and residents that use ASL and around the clock supervision. He needs to learn ASL, language and numeracy skills, independent living skills and Canadian societal norms. Tragically, to this point the efforts at securing funding for a position at BRAD have proved unsuccessful. Mr. Isaac has remained in severe sensory and linguistic isolation in jail for over four years.

The Evidence

[12] Dr. Percy Wright conducted an assessment of the defendant under section 22 of the Mental Health Act on October 4 and 11, 2011. The doctor was qualified as an expert psychologist with a specialty in forensic assessments. During the assessment period, Dr. Wright used the defendant's sister as an interpreter, and both his sister and mother in seeking to motivate the defendant to participate in some non-verbal testing. Mr. Isaac refused to participate. Like Dr. Wallis, Dr. Wright used the Adaptive Behaviour Assessment Scales (ABAS), where people who are familiar with the subject are asked what the person is capable or not capable of understanding. In this case, the doctor reviewed records from the jail and court proceedings, as well as speaking with the defendant's mother and sister and six correctional officers who have had regular contact with the defendant. It was Dr. Wright's opinion that Mr. Isaac suffers from mild to moderate mental retardation.

[13] Dr. Wright relied upon a number of factors in reaching the conclusion that the defendant suffers from cognitive limitations:

• Mr. Isaac's unwillingness to cooperate or engage with others in the absence of an immediate benefit or even when a benefit, such as the candy offered by Dr. Wallis, is offered;

• the defendant's observed conduct in groaning, laughing, pounding walls and "odd self-touching" behaviours. The conduct went well beyond being the equivalent of talking to one's self and therefore suggested a cognitive impairment. Although this behaviour could be a form of self-stimulation due to boredom, its repetitive character suggests cognitive impairment;

• Mr. Isaac's inappropriate behaviour at the jail, such as touching his anus when in the toilet;

• the defendant's real limitations in the ability to master simple non-verbal tasks. For example, both Dr. Wallis and Jim Diell, a volunteer at the jail, found that the defendant's had difficulty in putting together a puzzle geared to three year old children. He was only able to mimic putting together those pieces that were demonstrated to him;

• Mr. Isaac's unwillingness to learned new signs, based upon Jim Diell demonstrating a new sign for drinking and the defendant's reversion to his family sign for drinking;

• the defendant's persistence in continuing with conduct after he had been told "no"; and

• the fact that the learning of tasks the defendant used to perform in the home was all based on mimicking what he had been shown.

[14] During cross-examination, Dr. Wright acknowledged that Mr. Isaac understands rules, in the sense of dos and don'ts. He possesses a general sense that there can be punishment if rules are broken. The defendant knows to apologize. He knows that, if someone achieves, they should be congratulated - what the doctor described as the "high five" concept.

[15] Dr. James MacDougall was a defence witness, who was qualified as an expert in deafness, sign language and sign language identification. The doctor testified that mental retardation is a condition characterized by significant sub-average intellectual functioning, and concurrent impairments in adaptive functioning. Dr. MacDougall had no quarrel with the approaches taken or the conclusions reached by Drs. Wallis and N.W.. Indeed, he agreed that a diagnosis of mental retardation, severity unspecified, includes situations where there are communication deficits or no formal ability to communicate. The doctor also acknowledged that assessments of capacity can be done through observation. However, Dr. MacDougall cautioned that one should not draw conclusions about the cognitive capacity of a person like Mr. Isaac until either the assessor learns his language or he learns ASL. Dr. MacDougall pointed out that the defendant was able to learn routines in the jail and that he could understand gestures employed by the correctional officers, some of the ASL signs used at the camp and that he responded to the use of his family's signs by Mr. Diell. Similarly, while the doctor accepted that there was a high correlation between ABAS (a qualitative test) and the other quantitative tests, he warned that one should be cautious about making an inference of cognitive impairment, such as mental retardation, where it would be possible to test the defendant directly once he has acquired a communication system. With regard to the defendant's behaviour both when being assessed and at the jail, Dr. MacDougall pointed out that isolation in jail can lead to frustration, anger and communication breakdown, and that a strange environment can exacerbate such problems. In essence, while the doctor agreed that the defendant showed signs of adaptive developmental delays, he felt that there was little basis for finding cognitive impairment based on developmental delays or mental retardation.

[16] During cross-examination, Dr. MacDougall agreed that there was evidence that Mr. Isaac became deaf from meningitis and that in some cases meningitis can cause severe cognitive impairment and developmental delays. The doctor also admitted that long term deprivation of language can lead to cognitive impairment, although he felt that this was a matter that needed to be evaluated in relation to the defendant.

[17] Dr. Wright believed that better testing results could be obtained by an in-patient assessment in an environment that was more therapeutic than the Brief Assessment Unit where his tests took place. Dr. MacDougall agreed that further neuropsychological testing could reveal whether the defendant has impaired brain function. In addition, Dr. MacDougall stated that whether continued sensory and cognitive isolation has had an irreversible detrimental effect on Mr. Isaac's physical and mental health warrants further assessment.

Analysis

[18] Where the Crown seeks an assessment to determine whether an accused is unfit to stand trial, the court may only make that order where the prosecutor satisfies the judge that there are reasonable grounds to doubt that the accused is fit to stand trial: section 672.12(2)(b) of the Criminal Code.

[19] A definition of 'unfit to stand trial' is set out in section 2 of the Criminal Code, as follows:

"unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings

(b) understand the possible outcomes of the proceedings, or

(c) communicate with counsel.

[20] 'Mental disorder' is defined in section 2 of the Code as a "disease of the mind". The Supreme Court of Canada in R. v. Cooper, [1979] S.C.J. № 139 held that a 'disease of the mind' is a legal term that embraces "any illness, disorder or abnormal condition which impairs the human mind and its functioning". There is ample authority to indicate that mental retardation, or its equivalent, developmental delay, falls within the broad definition of a disease of the mind: see, for example, R. v. Rouse, [1996] O.J. № 4688 (Gen. Div.); R. v. Whitehead, [1993] O.J. № 2348 (Prov. Div.); R. v. Proulx, [2011] S.J. № 477 (Prov. Ct.); R. v. S.L., [2004] M.J. № 58 (Prov. Ct.).

[21] The report of Dr. Wallis and the testimony of Dr. Wright, together with Dr. MacDougall's acceptance of their conclusions, establish reasonable grounds to believe that the defendant suffers from a mental disorder, namely mental retardation, despite the fact that the degree of cognitive impairment has not been precisely ascertained.

[22] It is not seriously disputed that Mr. Isaac does not understand the nature of the proceedings or their possible outcomes, nor is he able to communicate with counsel. However, the real issue in this case is whether his mental disorder is, at least in part, the source of the defendant's inability to meet the criteria set out in the definition of 'unfit to stand trial'.

[23] The first two criteria in the definition of 'unfit to stand trial' deal with matters such as understanding of the charges the accused is facing, knowledge of the roles of the various players in the courtroom, a general awareness of the judicial process and comprehension of the possible consequences of a trial. I accept that Mr. Isaac has a very basic understanding of rules and the possibility of punishment for breaking the rules. However, Dr. Wright testified that one of the indicators of cognitive impairment on the part of the defendant is persistence in conduct after being told "no". The allegations against Mr. Isaac are repetitive in character. The second incident of touching at the camp occurred in the direct presence of Derek Rumball and shortly after the defendant's father had communicated the impropriety of approaching girls in any way. Similarly, it is alleged with respect to Ms. L.M. that Mr. Isaac made a second attempt to grab her buttock after having his hand knocked away and after being told "no". In my opinion, these behaviours raise reasonable grounds to doubt that the defendant understands the nature of the charges he is facing or their possible outcomes because of his mental disorder. My concern about Mr. Isaac's ability to understand these matters because of his mental disorder is heightened by the fact that he had difficulty mastering the simple non-verbal task of putting together a puzzle meant for a three year old. This occurred on more than one occasion.

[24] I recognize that I have arrived at a different conclusion than my colleague Justice Schneider. However, his decision was based on the evidence put before him, which differed significantly from that adduced before me.

[25] I am satisfied that the Crown has shown that there are reasonable grounds to doubt that the defendant is fit to stand trial because of his mental retardation. The application is granted. Given the serious communications challenges involved in an assessment of Mr. Isaac, I am satisfied that there are compelling circumstances in existence so as to warrant an order that remains in effect for 60 days, pursuant to section 672.14(3) of the Criminal Code.

Released: January 29, 2013

Signed: Justice Carol Brewer