Court File and Parties

Court File No.: Toronto Date: 2013-05-08 Ontario Court of Justice

Between: Real Estate Council of Ontario Mr. T. Snell for the prosecution

— And —

Kuan Chua Mr. L. Levin for the Defendant

Heard: March 19, 2013

NAKATSURU J.:

[1] Introduction

The defendant, Mr. Kuan Chua, is in the midst of his trial, along with his co-defendant, his wife, Ms. Lorna Chua, facing charges under the Real Estate and Business Brokers Act, S.O. 2002, c. 30. This case is being prosecuted by the Real Estate Council of Ontario (henceforth "RECO") which is a regulatory authority mandated by the Province of Ontario to administer and enforce the said Act. RECO regulates real estate trading, brokerages, brokers and salespersons in Ontario. Ms. Lorna Chua is charged with two counts of trading in real estate without being registered under the Act. Mr. Chua was registered as a real estate agent under the Act at the relevant time. He is charged with two counts of being a party to the unregistered trading of his wife. These charges are being prosecuted by RECO under the Provincial Offences Act, R.S.O. 1990, c. P.3 and are presently being heard by Justice of the Peace Rosenfeld.

[2] Referral for Capacity Assessment

After the end of the prosecution case on November 3, 2011, the defence applied to stay the prosecution on the basis of Mr. Chua's alleged incapacity to conduct a defence. Justice of the Peace Rosenfeld ordered that the matter be referred to a judge of the Ontario Court of Justice under s. 44(1) of the Provincial Offences Act for a determination whether because of a mental disorder, Mr. Chua was unable to conduct a defence.

[3] Expert Assessment

On February 3, 2012, when this matter came before a judge, Schneider J. ordered that Mr. Chua be assessed by an expert at the Centre for Addiction and Mental Health. Although the completion of this examination became delayed, Dr. Ian Swayze, a staff psychiatrist at the Centre, ultimately examined Mr. Chua and wrote a report dated October 23, 2012.

[4] Decision

This report along with Dr. Swayze's viva voce evidence was heard at the trial of the issue of Mr. Chua's capacity. For these written reasons, I find Mr. Chua able to conduct his defence and I order the suspended proceeding be continued.

OVERVIEW

[5] Motor Vehicle Accident and Subsequent Deterioration

On September 19, 2009, Mr. Chua was involved in a motor vehicle accident. He was a front seat passenger in a car that lost control and struck a tree frontally. He was taken to a hospital and diagnosed with a right forearm fracture. His arm was placed in a splint and he was discharged. On September 21, 2009, he had surgery for the arm and again discharged home.

[6] Post-Accident Complications

Since that time, Mr. Chua has developed numerous complaints and has been followed up by multiple specialists. Mr. Chua is now involved in civil litigation over the accident. Mr. Chua has apparently deteriorated to the point where he has to now come to court in a wheel chair assisted by an attendant.

[7] Trial Proceedings

At his trial before Justice of the Peace Rosenfeld, Mr. Chua was represented by a lawyer. I am advised that he was not physically present during the prosecution case. This case has now been referred to me to determine the defendant's capacity.

[8] Prosecution's Position

The prosecution argues that this case has been delayed time and again by Mr. Chua. It is submitted that the history of the proceedings supports the medical evidence that Mr. Chua is malingering. It is suggested that he is attempting to avoid his trial by raising the issue of capacity. It is submitted that the evidence before me demonstrates that Mr. Chua is capable of conducting his own defence.

[9] Defence's Position

Mr. Chua argues that he is incapable of conducting his defence. It is submitted that he is unaware of the proceedings and incapable of participating at his trial. The defence relies on their experts in supporting this position.

THE LAW

[10] Statutory Framework

Section 44 of the Provincial Offences Act governs the trial of the issue regarding a defendant's capacity to conduct his or her defence. Subsection 44(3) sets out the test at the trial of the issue:

(3) The trial of the issue shall be presided over by a judge and,

(a) where the judge finds that the defendant is, because of mental disorder, unable to conduct his or her defence, the judge shall order that the proceeding remain suspended;

(b) where the judge finds that the defendant is able to conduct his or her defence, the judge shall order that the suspended proceeding be continued.

[11] Definition of Mental Disorder

"Mental disorder" is not defined in the Provincial Offences Act. However, the Mental Health Act, R.S.O. 1990, c. M.7, s. 1 defines "mental disorder" to be "any disease or disability of the mind." Section 2 of the Criminal Code defines "mental disorder" as "a disease of the mind". This concept has been interpreted in the case law to be any malfunctioning of the mind or any mental disturbance having its primary source in a subjective condition or weakness internal to the accused. It includes any illness, disorder or abnormal condition that impairs the functioning of the human mind. It does not include transient disturbances caused by external factors or self-induced states caused by alcohol or drugs: see R. v. Rabey, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513; R. v. Cooper, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149.

[12] Application to Provincial Offences

In my opinion, although "mental disorder" is not defined in the Provincial Offences Act, given that the rationale for the fitness test is the same for both criminal and for provincial offences, that is to ensure that the accused is able to meaningfully participate in the trial process, I see no reason why a similar expansive definition should not apply to s. 44(3).

[13] Burden of Proof

Under the Criminal Code an accused is presumed fit to stand trial unless the court is satisfied on a balance of probabilities that he or she is unfit. The burden of proof is on the person who asserts unfitness. Again, I see no reason to distinguish this case from a criminal one. Therefore, the burden is on Mr. Chua to prove on a balance of probabilities that he is unfit.

[14] The Fitness Test

Finally, in my opinion, the threshold test should also be the same. Under s. 2 of the Criminal Code, the phrase "unfit to stand trial" is defined in a manner that statutorily entrenches the case law in the area. It states:

"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 consequences of the proceedings, or

(c) communicate with counsel;

[15] Application of Criminal Code Test to Provincial Offences

Although s. 44(3) merely refers to the inability to conduct a defence, this is not a meaningful distinction. Prior to amendment, the language used in the Criminal Code was similar to that found in s. 44(3); that is, a person was unfit when due to insanity, he or she was incapable of conducting a defence. It was judicial authorities that gave further definition to the section. While I can find little authority on the test under s. 44(3), in my view, the test should be the same given the identical interests at stake whether under the Criminal Code or the Provincial Offences Act. Those interests were summarized by The Law Reform Commission of Canada decades ago in Working Paper 14, The Criminal Process and Mental Disorder, 1975, pp. 33-4:

The rationale of the fitness rule, then, is this: it promotes fairness to the accused by protecting his right to defend himself and by ensuring that he is an appropriate subject for criminal proceedings.

The accused has the right to make full answer and defence to the charges brought against him. Fairness demands that he be aware of what is going on at trial so as to take whatever steps available to avoid the potential consequences of being found guilty. A trial at which the accused is mentally unable to exercise his rights is really a trial at which these rights do not exist. Exempting him from trial, therefore, protects his rights to make full answer and defence.

As well, our notions of responsibility, punishment and specific deterrence are based on the accused's involvement in his trial. He must know if convicted, for what crime and if punished, for what reason. It would be wrong to convict or sentence a person who does not appreciate what is happening to him. The fitness rule prevents this.

[16] The Limited Cognitive Ability Test

Therefore, the test is the limited cognitive ability test. It is not a high threshold. The defendant must understand the nature and object of the proceedings and the possible consequences and be able to communicate with counsel to prepare a defence. It is not necessary that the defendant be capable of acting in his or her best interests: see R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551 (Ont. C.A.). Testimonial competence is not a condition precedent to fitness to stand trial. Therefore, the fact that a defendant cannot recount or remember the immediate events of the offence due to brain injury does not render him or her unfit: see R. v. Morrissey (2007), 2007 ONCA 770 (CanLII), 227 C.C.C. (3d) 1 (Ont. C.A.). Lastly, the existence of a mental disorder or the incapacity to conduct a defence is not enough. Both must exist and be causally related: see R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.).

ANALYSIS

[17] Dr. Swayze's Evidence

Dr. Swayze examined Mr. Chua for the specific purpose of determining whether or not he had the capacity to stand trial pursuant to s. 44 of the Provincial Offences Act. Dr. Swayze has authored a detailed and thorough report addressing this issue. In addition to reviewing a voluminous body of material and conducting a psychiatric evaluation, he arranged Mr. Chua to be evaluated by psychological testing which required two separate sessions to complete. Dr. Swayze also provided oral testimony at this hearing. Cross-examination did not undermine the weight of his evidence. I find Dr. Swayze's opinions, after carefully assessing them in the context of the evidence as a whole, to be reliable and persuasive. In short, I accept his evidence completely.

[18] Comparison with Defence Experts

Before delving into that evidence in more detail, I wish to address the reports of Dr. Michael Silberfeld dated August 3, 2010, and October 16, 2011, and the report of Dr. Joan Tucker dated September 16, 2010. These were the reports relied upon by the defence. The first report dealt with Dr. Silberfeld's view that Mr. Chua was not capable of giving a proper Power of Attorney. The second report dealt with Dr. Silberfeld's opinion that Mr. Chua did not have the capacity to testify pursuant to s. 16 of the Canada Evidence Act. It was these reports that initially lead Justice of the Peace Rosenfeld to suspend the trial. The report of Dr. Tucker was a part of a multi-disciplinary Insurer's examination of Mr. Chua's injuries sustained in his motor vehicle accident of September 19, 2009. She diagnosed him with major depression with some psychotic features.

[19] Preference for Dr. Swayze's Evidence

In summary, I prefer the evidence of Dr. Swayze over that of Dr. Silberfeld or Dr. Tucker. Dr. Swayze's evidence deals specifically with the issue that I must confront. Dr. Silberfeld's opinions are relevant but are not directed specifically to the issue. The same can be said about Dr. Tucker's opinion. Her opinion is directed towards impairment as described in the Statutory Accident Benefit Schedule. Furthermore, Dr. Tucker's opinion is substantially dated.

[20] Head Injury Analysis

In addition, Dr. Swayze has pointed out that neither psychiatrist relied upon by the defendant appears to have addressed one of the core difficulties to their opinions. They opine that the cognitive changes presented by Mr. Chua resulted from a head injury suffered in the motor vehicle accident in 2009. However, the medical evidence is that Mr. Chua did not suffer from any loss of consciousness at the time of the accident or shortly thereafter. The paramedics who examined Mr. Chua at the scene of the accident, utilizing a widely used, reliable, and valid measure of an impact on the level of consciousness, the Glasgow Coma Scale, did not identify any loss of consciousness. The loss of consciousness strongly correlates to the question of whether Mr. Chua suffered any brain injury from the accident. I find that Dr. Swayze's conclusions are sound and reasonable in light of all the evidence presented. It appears that Dr. Silberfeld and Dr. Tucker may have misapprehended the nature and extent of the injuries caused by the automobile accident.

[21] Advantages of Dr. Swayze's Assessment

There are further reasons why I accept Dr. Swayze's opinion over that of the defence experts. Dr. Swayze had far more material available to him than Dr. Silberfeld or Dr. Tucker. He also had the benefit of psychological testing. Dr. Silberfeld and Dr. Tucker's opinions were limited to the documents available to them and a mental status examination. Furthermore, Dr. Swayze's opinions were subject to cross-examination. Dr. Silberfeld and Dr. Tucker's opinions remain confined to their written reports. Lastly, it does not appear that Dr. Silberfeld and Dr. Tucker gave any serious consideration to the possibility of malingering in Mr. Chua's case. In my opinion, they should have addressed this issue explicitly given the facts of this case.

[22] Dr. Swayze's Findings on Capacity

There are two aspects of Dr. Swayze's report in particular that are material to the issue before me. First of all, even if one accepted the validity of Mr. Chua's apparent complaints and disabilities, with encouragement, Mr. Chua was found to be capable of conducting his defence. Dr. Swayze writes:

Mr. Chua was canvassed specifically as regards his present legal circumstances. He initially indicated he had no awareness of the charges, or the purposes of the court. With minimal encouragement, however, he spontaneously stated, "I was a real estate agent… I took my exam…I have my license…they're all lies". While he did not specifically identify the outstanding charges by name, his comments clearly indicated an understanding of the allegations. When canvassed in respect to function of his counsel, he initially stated "I have lawyers…my accident, my injury lawyer". Again, with encouragement and repetition of the enquiry, he stated "the lawyer is to help me with the charges." The entire review of the relevant areas such as the nature and object of the proceedings, potential consequences, and ability to instruct, played out in a similar fashion, that being Mr. Chua initially suggesting "I don't know", then with minimal encouragement and repetition of the questions ultimately providing accurate responses. He indicated the Crown was to "to say those lies are true", indicating the function to prove the allegations. He identified the decisions within the court to be "the judge", an oath as "tell everything like it is", and a breach as "shouldn't lie." In respect to the pleas available to him, he stated "I'm not guilty" but declined to suggest alternatives. He was aware that the finding of guilt, at least theoretically as regards accused, could result in "jail". He repeated, "I'm not guilty." He was clearly aware that should the courts support his innocence and make such a finding; "it's over", indicating the termination of the legal proceedings. While the review took more time to complete than would occur with most individuals, Mr. Chua was ultimately able to address all of the Taylor Test questions and adequately respond to all arms of fitness, a corollary to capacity to conduct a defence.

[23] Dr. Swayze's Opinion on Malingering

Secondly, Dr. Swayze was of the view Mr. Chua was malingering. Noteworthy was his interview with Mr. Chua. During the interview, Mr. Chua would suggest he had no recollection to specific areas of inquiry or provide nonsensical responses. However, when these responses were simply not accepted at face value or Mr. Chua was further encouraged and probed, he was able to provide rational, organized and coherent answers. In Dr. Swayze's view, Mr. Chua's answers were not consistent with a cognitive problem but were a result of motivation and volition.

[24] Psychological Testing Results

The psychological testing was also revealing. The Green's Word Memory Test results were highly suggestive of feigned impairment or purposeful lack of effort on testing. Another test strongly indicated the malingering of cognitive impairment. The SIMS test results fell well above the recommended cut-off for malingering. Similar results were obtained in the MFAST which is a structured interview designed to provide information regarding the probability that an individual is malingering psychiatric illness. The psychological testing concluded that it was difficult to ascribe any major cognitive loss due to any head injury suffered in the motor vehicle accident. The psychologist concluded:

Based on the current assessment results, Mr. Chua appears to be invested in feigning some of his difficulties and likely exaggerating some of his symptoms. In keeping with the results of the TOMM, GWMT, and SIMS it is not surprising that he is endorsing highly atypical memory complaints and complete naivety about the concept of "court". This likely renders his self-report problematic in a number of domains.

[25] Dr. Swayze's Testimony

Dr. Swayze's testimony before me remained consistent with his report. When asked about Dr. Silberfeld's opinions, Dr. Swayze testified that he could not agree with them. While he could not comment on what Dr. Silberfeld observed when he met with Mr. Chua, Dr. Swayze testified that the history of head injury was not as catastrophic as what Dr. Silberfeld seemed to have assumed. In addition, the radically different and fluctuating Mini-Mental State Examination scores were not consistent with a diagnosis of significant mental disorder. On August 3, 2010, it was 21/30. On October 16, 2011, it was 13/30. On July 31, 2012, it was 23/30. It was Dr. Swayze's further opinion that at the score of 23/30, even if it was accepted as an accurate score, there would only be a mild impairment of abstract thinking. This would not affect more basic skills involving daily activity or participating in a trial.

[26] Dr. Swayze's Conclusion on Malingering

Dr. Swayze acknowledged that Mr. Chua presented with significant problems. However, from a medical perspective it made no sense. There was nothing about his medical disability that could account for his level of impairment. This thus led to his overall opinion that Mr. Chua was malingering. In short, he was either feigning his symptoms or he was exaggerating his existing symptoms. It was possible there was mild injury or depression. However, this could not account for the pathology reported by Mr. Chua.

[27] Evidence of Ms. Lorna Chua

The defendant called Ms. Lorna Chua as a witness. Unfortunately, I give her testimony little weight. She testified that her husband was a very different man from the man who suffered the car accident. Upon prodding by Mr. Levin, the agent acting for Mr. Chua, she agreed that he had deteriorated overtime. While I am sympathetic to Ms. Chua and her concern for her husband, I find that her testimony was clearly affected by her bias to support her husband. She was overtly argumentative and evasive in cross-examination. On numerous occasions, she qualified her own testimony by stating that she was not a doctor. In these circumstances, her evidence added very little to the consideration of the relevant issues at this hearing.

[28] Mr. Chua's Courtroom Presentation

In court, Mr. Levin attempted to get Mr. Chua to answer some questions. Despite an opportunity to do so, Mr. Chua would not give his replies under oath or affirmation. He remained in his wheel chair. To the simplest of questions, his response was consistently "I don't know". He claimed not to know where he was or why. His affect was blunted. He was not at all oriented to his surroundings and gave his answers in a halting, uncomprehending manner. An opportunity to cross-examine was offered but was declined. Given Mr. Chua's position with respect to all the questions, this was understandable since cross-examination would have not have achieved anything.

[29] Assessment of Mr. Chua's Courtroom Conduct

This exchange between Mr. Chua and his agent can be given no weight in my opinion. In questioning his client, Mr. Levin wished that I have an opportunity to observe Mr. Chua. If taken at face value, these observations could lead one to conclude that Mr. Chua is totally disconnected with his present circumstances. However, I am unable to conclude that for the following reasons. First of all, even giving the greatest leeway to Mr. Chua and his claims of disability, the whole exchange I observed between Mr. Levin and Mr. Chua left me with the most uncomfortable conclusion that Mr. Chua was attempting to present himself in a fashion to achieve a desired outcome at this hearing rather than truthfully attempting to assist the court. Whether that operated mainly on a conscious or subconscious level, I cannot say. Regardless, I find there was far more performance than pathos in that exchange. Secondly, his ostensible level of functioning today is inconsistent with the other evidence. It is especially inconsistent with Exhibit 8, the report of Ms. Mandy Fang, dated February 12, 2013. Ms. Fang was Mr. Chua's psychological therapist who saw him for a total of 14 sessions from July 9, 2012, to January 31, 2013. In those sessions, Mr. Chua while displaying depressive symptoms, showed a much higher level of cognition and functioning than he displayed today. He was open, responsive, and aware. For instance, he was concerned and communicative about his living arrangements. He was concerned about the potential risk to his wife and daughter due to some mould found in his home. He communicated these concerns openly and clearly to his therapist. He further showed improvement during his therapy by gaining insight and increased responsiveness. In my opinion, to review that report starkly highlights the inconsistency in Mr. Chua's presentation of himself to others, including to me, when there are incentives not present in therapy in play. Finally, Dr. Swayze's opinion supports the conclusion that I should not place any weight in Mr. Chua's present professed mental state.

[30] No Deterioration Since Dr. Swayze's Assessment

Mr. Levin argued that Mr. Chua has deteriorated from the time Dr. Swayze saw Mr. Chua. I cannot accept that. I have rejected the evidence of Ms. Chua in this regard. Mr. Chua's presentation in court has no weight. To the contrary, Ms. Fang's report indicates improvement after treatment. In my opinion, Dr. Swayze's opinion is the best and most recent examination of Mr. Chua's mental condition. I am not persuaded anything in Mr. Chua's condition has significantly changed since that time. While the issue of capacity must be one that is made at the time the issue is being tried, I do not accept that the passage of time or any alleged deterioration in Mr. Chua's condition has undermined any of Dr. Swayze's opinions.

[31] Findings on Mental Disorder

In conclusion, I have strong reservations about whether Mr. Chua suffers from any mental disorder even as liberally defined under s. 44(3). It was Dr. Swayze's opinion that clinically Mr. Chua was not acutely suffering from any psychiatric illness such as a primary mood, psychotic or anxiety disorder. Dr. Swayze's notes that the history of the accident was not consistent with any clinically significant head injury. The reported deterioration in cognitive functioning is not consistent with any brain injury. Dr. Swayze opines that there is no indication for psychiatric treatment. If there was any depression, it is now in substantive remission. Finally, it is Dr. Swayze's view supported by the psychological testing that there is a high probability that Mr. Chua is malingering in the context of overt external incentives, including psycho-legal and financial.

[32] Even if Mental Disorder Exists, Capacity is Present

All this being said, even discounting a great deal of what Mr. Chua relates or presents, I am willing to find that Mr. Chua may still be suffering from some form of mental disorder such as depression. The key issue in this case though is whether the disorder that exists renders him unable to conduct his defence. Dr. Swayze opines that if there is any impairment of his functioning, it is mild. It does not affect his ability to conduct a defence, testify or provide voluntary statements. Further, Dr. Swayze opines that Mr. Chua is fit to stand trial.

[33] Meaningful Participation in Trial

In my opinion, Mr. Chua can participate in his trial in a meaningful way. I find that he does understand the proceedings, the charges, and the consequences. I further find that he can properly communicate and instruct counsel. I have based this finding on the medical evidence presented to me.

[34] Prior Representation Without Issue

I note as well that up until the day his trial was suspended, he was represented by counsel. There has been no complaint that his trial has been unfair to that point. I am advised Mr. Chua was not present at his trial but had acted through his lawyer. There does not appear to have been any issue with his counsel receiving instructions and meaningfully participating in testing the prosecution's case. It was only when the defence was called upon that this issue arose. If the defendant's position was to be accepted, Mr. Chua would not have been able to participate in his trial in a meaningful way long before then. This does not appear to have been the case. The issue raised by the defence based on Dr. Silberfeld's report was that Mr. Chua was not competent to testify. However, as the case of Morrissey makes clear, this is different from fitness.

[35] Conclusion

To succeed under s. 44(3), Mr. Chua must establish on a balance of probabilities that due to a mental disorder he is incapable of conducting his defence. I find he has not. The question of volitional conduct is a different matter. If Mr. Chua chooses not to conduct his defence in the sense he remains unwilling to meaningfully participate in his trial due to his malingered symptoms, this does not fall within the ambit of s. 44.

Released: May 8, 2013

Signed: Nakatsuru J.