Court File and Parties
COURT FILE NO.: CR-16-40000041 DATE: 2016-09-21 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – C.M.L. Defendant
Counsel: David Wright, for the Crown C.M.L., in person Tom LeRoy and Shushanna Harris, as amicus curiae
HEARD: January 26, February 4, April 4 and April 7, 2016
BEFORE: Molloy J.
Reasons for Decision (Fitness for Sentencing Hearing)
A. Introduction
[1] The accused, Ms. C.M.L., was convicted by a jury of concealing and detaining her daughter (“M”) in China in contravention of a Canadian custody order. She was not represented by counsel and was extremely disruptive throughout the trial to the extent that I found it necessary to exclude her from the courtroom for significant portions of the proceeding. My reasons for doing so, and the history of the proceedings involving Ms. L., are set out in separate Reasons dealing with pre-trial and mid-trial rulings. [1]
[2] On a number of occasions prior to trial, questions were raised as to Ms. L.’s state of mental health. The issue of fitness was first raised at the preliminary hearing, but the hearing judge found no basis to proceed with the issue. Throughout the trial, notwithstanding Ms. L.’s abusive conduct, I had no concerns about her fitness for trial and no counsel raised the issue. The issue of fitness was raised again by the Crown following trial and before sentencing. I found no basis to believe that Ms. L. was unfit for the purposes of the sentencing hearing, indicating that my Reasons would be released in writing at a later date. The sentencing hearing proceeded and I sentenced Ms. L. to seven years’ imprisonment, from which was deducted 29 months for time served. My Reasons for Sentence are the subject of a separate decision released on July 5, 2016. [2]
[3] These Reasons deal with my conclusion that there were no reasonable grounds for finding Ms. L. to be unfit and therefore no basis to enter into a fitness hearing prior to sentencing.
B. Factual Background
[4] Ms. L. and Mr. S.R. are the parents of one daughter (“M”), who was born on […], 2003. Ms. L. and the child’s father, Mr. R., had previously lived together in a common law relationship, but separated two years after M’s birth. During the separation, Mr. R. continued to be actively involved in his daughter’s life.
[5] In the fall of 2010, when M was seven years old, Ms. L. took a new job as a social worker that required her to work a night shift. She had difficulty finding daycare and asked Mr. R. if he could pick up M after school, give her dinner, and keep her overnight on evenings when Ms. L. had to work. Ms. L. gave Mr. R. only a few days’ notice that she wanted him to do this, and he responded that he would need more time to arrange things as his living arrangements were not conducive to having M spend the night with him. Ms. L. told him to never mind, and that she knew what she could do.
[6] In December 2010, Ms. L. travelled to China with M. Ms. L. is originally from China and her parents and other relatives still live there. On February 2, 2011, Ms. L. returned to Canada without her daughter. When Mr. R. found out about this on February 4, 2011, he reported the matter to the police. Ms. L. thereupon accused Mr. R. of assaulting her and threatening to kill both her and her daughter. As a result, Mr. R. was charged with multiple criminal offences, and released on bail.
[7] On February 11, 2011, Ms. L. commenced proceedings in the Ontario Court of Justice (“Family Court”) seeking custody of her daughter M. Pleadings were exchanged between the parties. Ms. L. filed an affidavit in which she swore that her daughter was living in China with her maternal grandparents and uncle. She sought an order for the renewal of M’s visa and passport without requiring Mr. R.’s signature.
[8] On April 11, 2011, Justice Geraldine Waldman made an order in the Family Court proceedings, in Ms. L.’s presence, directing Ms. L. to return M to Ontario by April 30, 2011, and made an interim order that M would live with Ms. L. in Ontario, with no access by the father pending further order of the court.
[9] Ms. L. did not return M to Ontario by April 30, 2011. Mr. R. filed an application in the Family Court seeking to have Ms. L. cited for contempt for breaching the April 11, 2011 order. Ms. L. thereupon went to the police on May 17, 2011 and reported numerous other acts of violence against her by Mr. R., including sexual assault, as a result of which he was again arrested and charged with additional offences.
[10] On June 3, 2011, the contempt application proceeded before Waldman J. Ms. L. was present in court for this hearing. Waldman J. found Ms. L. to be in contempt of the April 11, 2011 order and sentenced her to 60 days in jail, to commence 51 days from the date of the order (June 3, 2011), with a further provision that if M were returned to Ontario before the sentence was to commence, the Court would reconsider whether jail was still required. The matter was then adjourned to July 21, 2011.
[11] Ms. L. did not attend in court on July 21, 2011 and she did not return M to Ontario. On November 8, 2011, Waldman J. made an order granting sole custody of M to her father, Mr. R.
[12] The preliminary hearing for all criminal charges against Mr. R. was scheduled to commence on March 12, 2012. Ms. L., who was the complainant and sole witness on all the charges, failed to attend. The Crown stayed all the charges.
[13] In October 2013, Ms. L. was arrested in Toronto and commenced serving her sentence for contempt of court imposed on June 3, 2011 (for breaching the order of April 11, 2011). Although the original sentence was for 60 days, Waldman J. reduced the sentence to 15 days.
[14] The Family Court proceedings continued on December 18, 2013. On that occasion, Ms. L. was present in court and represented by counsel. She entered into an agreement with Mr. R., which was incorporated into a consent order dated December 18, 2013. Under the agreement and order, Ms. L. was to make all reasonable efforts to have M returned to Toronto by January 20, 2014, and was directed to provide certain information about M’s location in China by December 19, 2013 (including the legal names of M’s caregivers in China, the municipal address of M’s residence, the name of her school, a telephone number where M could be reached, and other contact information). Ms. L. provided the names of her relatives and some, but not all, of the other required information. Apart from the names, the information provided proved to be incorrect. M was not returned to Ontario.
[15] On January 30, 2014, Waldman J. found Ms. L. to be in contempt of the court’s orders dated June 3, 2011 and November 8, 2011, and sentenced her to a further 45 days’ incarceration. On April 4, 2014, a further finding of contempt was made and Ms. L. was sentenced to another 60 days. Still she refused to return the child or provide accurate information as to M’s whereabouts.
[16] In January 2014, Ms. L. was charged with child abduction under s. 282 of the Criminal Code, R.S.C. 1985, c. C-46, and also with breaching various court orders. The Crown later withdrew the charges relating to breaching court orders. The trial on the single count of child abduction proceeded before me, with a jury, commencing on January 4, 2016.
[17] Mr. R. has not seen or heard from his daughter since the fall of 2010, when she was seven years old. She would now be nearly 13 years old. Attempts to locate her through Canadian police forces and the Canadian embassy in China have been unsuccessful. There has been no verification that she is in China, nor even that she is alive.
C. The Test for Fitness
[18] A person is presumed to be fit unless proven otherwise. The test for determining whether an accused person is unfit to stand trial is set out in s. 2 (the definitions section) of the Criminal Code, as follows:
[U]nfit 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.
[19] The Supreme Court of Canada confirmed in R. v. Whittle [3] that this statutory definition is a codification of the existing common law test for unfitness. The Supreme Court in Whittle also adopted what has been referred to as the “limited cognitive capacity” test, as set out by the Ontario Court of Appeal in R. v. Taylor [4]. In Taylor, the Court of Appeal rejected the notion that an accused person must be capable of analytical reasoning and of making rational choices in the conduct of his defence that are in his own best interests. Rather, it is sufficient that the accused is capable of communicating with counsel and telling counsel the facts upon which a defence might be based.
[20] There are a number of parallels between the situation before the court in Taylor and the circumstances relating to Ms. L. Mr. Taylor was diagnosed as suffering from paranoid schizophrenia and was described as delusional with respect to the justice system and its participants. [5] In particular, he believed that everyone in the justice system, including his own lawyers, were conspiring against him. [6] His psychiatrist testified that he was “technically fit” in the sense that he was a trained lawyer, articulate, and bright, and understood the judicial system, the nature of the charges against him, and the role of the participants in the trial. [7] However, he was so delusional about the conspiracy against him that his psychiatrist believed that he was unable to perceive his own best interests and how those interests should be addressed in the conduct of the trial, and was not capable of rationally instructing counsel or rationally conducting his case. [8] Based on this assessment, the trial judge determined that Mr. Taylor did not satisfy the third branch of the test for fitness and found him unfit. [9] That decision was reversed by the Court of Appeal on the grounds that it elevated the limited cognitive capacity test to the level of analytical reasoning. [10]
[21] In R. v. Morrissey [11], the Ontario Court of Appeal reviewed and affirmed its earlier decision in Taylor as to the limited cognitive capacity test, stating (at para. 27):
In R. v. Taylor (1992), 77 C.C.C. (3d) 551, [1992] O.J. No. 2394 (Ont. C.A.), this Court recognized that the new s. 2 definition "statutorily entrenches the extensive case law in this area" and concluded that to be found fit for trial an accused must satisfy a "limited cognitive capacity test." This threshold is not high. Indeed, Taylor has been criticized in some parts of the academic and medical communities for setting the bar too low and allowing some individuals to be found fit when their ability to make necessary decisions about their trial is severely affected by mental illness: see the commentaries collected in Barrett and Shandler, Mental Disorder in Canadian Criminal Law (Toronto: Thomson Carswell, 2006), pp. 3-6 to 3-7, fn 15. Nonetheless, the "limited cognitive capacity" test has been accepted across the country and was adopted by the Supreme Court of Canada in R. v. Whittle (1994), 92 C.C.C. (3d) 11 at pp. 25-26. It requires only a relatively rudimentary understanding of the judicial process - sufficient, essentially, to enable the accused to conduct a defence and to instruct counsel in that regard. It is in that sense that the accused must be able "to communicate with counsel" and relate the facts concerning the offence. [Emphasis added.]
D. Background on the Issue of Ms. L.’s Fitness
Ms. L.’s Conduct During These Proceedings
[22] In the Family Court proceedings, and initially for the appearances in the Ontario Court of Justice in relation to these criminal charges, Ms. L. was represented by counsel. However, she dismissed two lawyers and Legal Aid denied her request to hire a third lawyer. She appealed that decision, but was unsuccessful. In this court, McMahon J. made a Rowbotham order, directing the Ontario government to pay for legal defence counsel for Ms. L. Notwithstanding many opportunities to retain counsel, Ms. L. refused to do so. Sometimes she gave as her reason that the Crown had failed to make full disclosure and that she would not retain counsel until she had all of the documents to which she was entitled. When that position was exhausted because McMahon J. ruled that she had received full disclosure, Ms. L. refused to hire a lawyer unless McMahon J. made an order that counsel would be required to continue to act for her even if offered a bribe of $1 million or threatened with death.
[23] Both in the Ontario Court of Justice and in the proceedings in this court, amici curiae were appointed to assist the court.
[24] Throughout the proceedings in the Ontario Court of Justice, in the pre-trial proceedings before McMahon J. in this court, and during the course of her trial, Ms. L. would frequently launch into tirades of abuse with respect to alleged wrongdoings by Mr. R. In addition to her allegations of his criminal conduct against her, she alleged that he was an Iranian spy and a terrorist, who was illegally in Canada. She claimed that he admitted to murdering somebody in Toronto. She said he had described the Queen of England as a prostitute. She kept insisting that he be arrested.
[25] In addition, Ms. L. would frequently allege that anyone who did not follow her directions to arrest and prosecute Mr. R. was also a terrorist and involved in a conspiracy with him to frame her on these charges. These accusations included the police, the Crown Attorney, the amicus, and any judge who refused to make these orders, including Justices Waldman, McMahon and myself.
[26] Underlying Ms. L.’s obstreperous behaviour is her insistence that the orders made against her in the Family Court proceedings were illegal, and that the charge before this court is also, therefore, illegal. She has persistently refused to participate in any way in this proceeding, other than to make speeches about the fact that she is illegally detained and that Mr. R. is a terrorist and a criminal.
[27] It was necessary to remove Ms. L. from the courtroom for significant portions of the trial because of her disruptive conduct. The same thing happened before McMahon J. and also before ODonnell J. in the Ontario Court. Interestingly, apart from these outbursts, Ms. L. was quiet and attentive. Although fluent in English, Ms. L. had the assistance of simultaneous Mandarin translation. She often interrupted the proceedings to make technical corrections to the interpreter’s translation, indicating that she was in fact following closely. Other times her interruptions were because someone made an incorrect statement. For example, she became quite exercised during one of her appearances before McMahon J. when one of the lawyers (Ms. Rochman) mentioned giving a document to Ms. L., about which Ms. Rochman was mistaken. Similarly, at one point in a discussion with counsel, I referred to Mr. R. as Ms. L.’s spouse, which caused her to erupt into a tirade about never having been married to him. For the most part, however, Ms. L.’s tirades and speeches were prompted by any request from the court that she take a position on an issue or answer a question about the proceedings. Frequently, when this happened, Ms. L. read from a prepared text, but even when she was speaking without the text, the subject matter was always the same: Mr. R. was a criminal and a terrorist; Ms. L. was a victim who was being illegally detained; and anyone who did not accede to her requests to arrest Mr. R. and release her was part of the conspiracy against her.
The Fitness Issue in the Ontario Court of Justice
[28] Ms. L.’s fitness to stand trial was first raised by the Crown in the Ontario Court of Justice by notice given on October 1, 2014. Although a fitness hearing was scheduled for October 27, 2014 before ODonnell J. (who was case-managing the matter), by that date it was apparent that Ms. L. was instructing duty counsel who was attending on her behalf and the Crown therefore withdrew its application.
[29] On February 24, 2015, ODonnell J., on his own motion, ordered a fitness assessment of Ms. L. This was opposed by Ms. L. and by the Crown. Dr. Brian Daly, of the Southwest Centre for Forensic Mental Health Care, assessed Ms. L. and issued a report dated April 27, 2015, in which he stated his opinion that Ms. L. suffers from a delusional disorder that so interferes with her ability to perceive reality that she was unfit to stand trial. He recommended a 60-day Treatment Order, during which time Ms. L. would be treated with psychotropic medications and have some psychotherapy.
[30] In his report, Dr. Daly diagnosed Ms. L. as having a delusional disorder. He referred to those delusions as relating to her belief that Mr. R. was a criminal and a terrorist, and also to her belief that the Crown Attorney was conspiring against her. Dr. Daly considered the limited capacity test in R. v. Taylor and noted that there were factual similarities between the two cases. However, in his view, Taylor was distinguishable because all of his delusions were related to the judicial system itself, whereas Ms. L. had an “impairment of her facility with facts of her case.” In his view, Ms. L. had delusions that “impact her ability to convey facts because they impact her ability to know the difference between what is real and what is not in her past relating to her charges.” Dr. Daly also commented, “It is a common teaching in the mental health field that one should not directly challenge delusional beliefs.” However, because of the nature of her delusions, “almost everything in the trial process violates this tenet.” Dr. Daly expressed the opinion that Ms. L. was unfit to stand trial because her delusional beliefs impaired her ability to communicate with counsel, and her lawyer would therefore not be able to mount an appropriate defence for her, and further that she was incapable of representing herself because of her “inability to distinguish reality from delusion.”
[31] After receiving Dr. Daly’s report, ODonnell J. fixed a date in July 2015 for the fitness hearing. However, concerned about the significant delay that had already occurred, ODonnell J. raised the issue again at an appearance on May 26, 2015. On that occasion, Ms. L. was represented by counsel, Mr. Embry, who had been appointed as counsel for purposes of the fitness hearing. Mr. LeRoy was also present as amicus. ODonnell J. referred to the interpretation of the Taylor test applied by Dr. Daly and stated, “[M]y initial impression is that the legal interpretation put on the Taylor test is probably not sustainable and that if I disregard that particular legal interpretation, I would be obliged to find [Ms. L.] fit to stand trial.” [12] Both the Crown and counsel for Ms. L. took the same view, as did Mr. LeRoy as amicus and Ms. L. herself. Ms. L. was particularly incensed that although she was referred for an assessment for 60 days, she had, in fact, been held an additional few days. She repeatedly demanded that Dr. Daly be arrested for breaching the court order, just as she had been arrested for breaching a court order. ODonnell J. concluded that no purpose would be served in proceeding with the fitness hearing. The matter was adjourned to June 4, 2015. ODonnell J. invited the Crown to consider bringing a preferred indictment.
[32] On June 4, 2015, Ms. L. again appeared before ODonnell J. She refused to answer questions put to her directly. ODonnell J. put Ms. L. to her election as to the mode of her trial. She refused to answer. Therefore, as required under the Criminal Code, ODonnell J. deemed her to have elected a trial composed of a judge and jury. Ms. L. did not request a preliminary inquiry. The Crown also did not request a preliminary inquiry. Therefore, the matter went directly to the Superior Court, with a first appearance date of June 25, 2015.
The Fitness Issue in the Superior Court of Justice
[33] No issue was raised as to whether Ms. L. was fit to stand trial in this court. Throughout the course of the trial, Ms. L. consistently took the position that this was an illegal proceeding and that she would not participate in it. She was, however, attentive to the proceeding and was fully cognizant of its nature, as well as its potential consequences for her. The trial proceeded to its conclusion, with a jury finding that Ms. L. was guilty as charged under s. 282 of the Criminal Code.
[34] At the conclusion of the trial, and at the request of the Crown supported by amicus, I ordered a mental health assessment of Ms. L. under s. 21 of the Mental Health Act, R.S.O. 1990, c. M.7, on the basis that some insight into Ms. L.’s psychological issues might be of assistance in sentencing. The Crown initially proposed that this be done at a two-hour appointment made with Dr. Alistair McDonald for February 3, 2016 at Toronto’s Centre for Addiction and Mental Health. At an appearance on January 26, 2016, I raised a concern that two hours would not be sufficient and the matter was adjourned to permit the Crown to make further inquiries. Ms. L., while not agreeing to the usefulness of the assessment, did request that the psychiatrist doing the assessment be provided with copies of the reports in respect of all prior assessments that had been conducted. She also advised that she was intending to appeal her conviction.
[35] The matter came back before me on February 4, 2016, on which occasion Mr. Wright advised that he was changing his position and was now requesting an assessment under s. 16 of the Criminal Code as to whether Ms. L. should be found not criminally responsible for her actions and also as to whether she was unfit to proceed to a sentencing hearing. I advised that I saw no basis for ordering an assessment under s. 16 of the Criminal Code and the Crown ultimately withdrew that request. However, the Crown did seek an assessment as to whether Ms. L. was unfit. I agreed that the fitness assessment could be done, but that an assessment should also be done under s. 21 of the Mental Health Act as previously ordered. This was to be carried out at Ontario Shores Centre for Mental Health Sciences in Whitby over a period of 60 days.
[36] Ms. L. was assessed by Dr. Karen De Freitas at Ontario Shores over a period of time commencing on February 4, 2016. Dr. De Freitas issued a report dated March 29, 2016, in which she concluded that Ms. L. has delusions of a persecutory nature. She stated that these delusions primarily involve Mr. R., but “various players in the legal system have been incorporated into her delusions.” Dr. De Freitas acknowledged that there was no evidence to suggest that these delusions prevented Ms. L. from understanding the nature and object of the proceedings or the possible consequences to herself. However, in Dr. De Freitas’ opinion, “they have prevented her from accepting legal counsel to represent her, and as such have prevented her from communicating with counsel.”
[37] Dr. De Freitas stated, at p. 15 of her report:
[Ms. L.] is so paranoid that she has refused counsel altogether. [Ms. L.] decision to not have counsel is not a rational one, but instead flows from her irrational fear, based on her delusions, that her lawyer will turn against her, perjure him/herself, and prosecute her and her child.
[38] Dr. De Freitas also concluded, based on her review of some of the transcripts of pre-trial proceedings, that Ms. L. was not capable of representing herself and that she “exhibited an inability to respond to simple questions from judges because she was so preoccupied with asking for disclosure materials or was focused on her persecutory ideation.”
[39] Dr. De Freitas concluded that Ms. L. was unfit to proceed to sentencing. She recommended that the court order Ms. L. to be admitted to Ontario Shores on a 60-day Treatment Order to ensure that she is adequately treated, it being her belief that Ms. L. would not voluntarily take anti-psychotic medication.
[40] The matter again returned before me on April 4, 2016 at which point all counsel and Ms. L. were provided with a copy of the report of Dr. De Freitas and the matter was put over to April 7, 2016 for argument. On the return date, the Crown initially stated that his bottom-line position was that there should be a fitness hearing as there were reasonable grounds for believing Ms. L. was unfit. However, in the course of full argument, the Crown changed that position and argued that Ms. L. was, in fact, fit to proceed with the sentencing hearing based on the Taylor test. Ms. L., to the extent she could be persuaded to address the issue at all, maintained that the psychiatric assessment was illegal and invalid. At the conclusion of the argument, I stated that I would consider the matter further, but that my current thinking was that there was no basis to proceed with a full hearing on fitness. I adjourned the matter to May 16, 2016, and advised that, unless counsel received a message from the trial office to the contrary, I would hear submissions on sentencing on that date. I advised Ms. L. as follows:
So [Ms. L.], when you come back on May 16th, you should be aware of what's likely to proceed on that day. You've been found guilty of a criminal offence by a jury, and what is likely going to proceed on that date is I will be hearing submissions and evidence with respect to the sentence that will be imposed on you for that criminal offence…If you wish to present any evidence with respect to the sentence that should be imposed, or call any witnesses, you should have them ready for Monday, May 16th.
I should caution you that I will consider it a very serious aggravating factor that you have failed to provide accurate contact information for your daughter or indeed confirmation that she is still alive. That will be considered by me to be a very aggravating factor in sentencing. If you wish the advantage of any mitigation in your sentence, you would be well advised to come with that information. [13]
[41] On May 16, 2016, I proceeded with the sentencing hearing, indicating that my reasons on the fitness issue would be delivered in writing at a later date.
E. Analysis
[42] I concluded that there were no reasonable grounds to believe that Ms. L. was unfit to proceed with the sentencing hearing. The Taylor test must be the cornerstone in determining whether such grounds exist. It is clear that Ms. L. understood the nature and object of the sentencing process, as well as its consequences for her. The question was whether she was unable, due to a mental illness, to communicate with counsel. In my view, Ms. L. was able to communicate with counsel; she simply refused to do so. Likewise, she was capable of conducting her own defence at the sentencing hearing, but decided not to participate.
[43] I recognize that Dr. De Freitas reached a different conclusion, as indeed did Dr. Daly in his earlier assessment. I do not find the opinion provided by Dr. De Freitas to be reliable or persuasive. For the most part, her opinion is based on her review of transcripts of various pre-trial appearances before McMahon J. and the prior fitness assessment conducted by Dr. Daly. Dr. De Freitas requested that psychologist Dr. Gibas conduct a psychological assessment of Ms. L. Dr. Gibas met with Ms. L. on two occasions, but Ms. L. refused to participate in the assessment. Ms. L. did repeat some of her accusations about Mr. R., but would not otherwise answer questions put to her. Dr. Gibas described her as “guarded and perseverative.” No psychological assessment could be done.
[44] Dr. De Freitas had virtually no meaningful contact with Ms. L. According to her report, Ms. L. refused to answer any of her questions relevant to the fitness assessment.
[45] The first attempted interview was on February 8, 2016. Dr. De Freitas described Ms. L. as “calm and polite,” but said that she was fixated on her belief that she had been treated unfairly by the legal system. She described Ms. L. as “guarded” and said that she “refused to answer questions directly.” Ms. L. even refused to say what her mood was, whether she was happy or sad, and instead wanted to know what the consequences would be for saying if she was happy or sad. Dr. De Freitas eventually terminated the interview “as it was not possible to get further information” from Ms. L. She noted that Ms. L. requested that all future interviews be done through a Mandarin interpreter, even though Dr. De Freitas was of the view that Ms. L.’s English was adequate.
[46] I note, as an aside, that Ms. L. is quite proficient in the English language. After graduating from school, she taught English for several years. In Canada, she went back to school and attended a college diploma course in social work, entirely in English. She was then employed as a social services worker, working entirely in English. Frequently during the course of the trial, she would interrupt fully accredited interpreters and correct small errors in their translations.
[47] Dr. De Freitas next attempted to interview Ms. L. on February 18, 2016, this time through a Mandarin interpreter. Again, Dr. De Freitas found Ms. L. to be “evasive.” Again, Ms. L. refused to answer questions about her emotional state. She repeated her allegations about Mr. R. being a terrorist and spy, and said he had told her these things. She refused to say whether she believed them, telling Dr. De Freitas that she should investigate it herself. She would not answer questions relevant to fitness, so Dr. De Freitas moved on to “other areas.”
[48] Dr. De Freitas again attempted to interview Ms. L. on February 25, 2016, but Ms. L. refused to meet with her. The same thing happened on March 2, 2016 and March 10, 2016. However, on March 2, although refusing to come to the interview room, Ms. L. made some “spontaneous” comments about her detention being unlawful, the Crown’s failure to make full disclosure, and Mr. R. being a criminal.
[49] Finally, Dr. De Freitas met with Ms. L. on March 23, 2016. Ms. L. complained about the Crown’s failure to make disclosure and asked Dr. De Freitas to obtain Mr. R.’s refugee file and any files on him at the Iranian embassy. She refused to answer any further questions until those documents were obtained. Dr. De Freitas described Ms. L. as being “pleasant and polite” throughout and noted that her “thought processes were organized.” However, she described Ms. L. as being “preoccupied with her negative perception of [Mr. R.].”
[50] Ms. L. was noted to otherwise be pleasant and congenial with staff as well as with peers. This was also noted by Dr. Daly. When asked about anything related to her defence, Ms. L. launched into accusations against Mr. R. and about the unfairness of the legal process. Otherwise, she functioned in a perfectly rational manner. That is fully consistent with my observations of Ms. L. throughout the trial and sentencing process.
[51] In the Family Court proceedings, Waldman J. made a finding of fact that she did not believe Ms. L.’s allegations that Mr. R. was a danger to his daughter. She noted that none of Ms. L.’s accusations against Mr. R. were made until after he complained to the police about his daughter being left in China without his permission. Further, prior to her departure for China in December 2010, Ms. L. was prepared to entrust her daughter to Mr. R.’s sole care for substantial amounts of time, including overnight. In my Reasons for Sentence, I too found that I was satisfied beyond a reasonable doubt that there was no foundation in fact for Ms. L.’s accusations that Mr. R. had assaulted Ms. L. or his daughter, or that he had sexually assaulted Ms. L. [14] Ms. L. took her daughter to China only because Mr. R. said he could not babysit on short notice while she worked nights. When Ms. L. came back without M, Mr. R. went to the police. Ms. L. counter-attacked by alleging he had committed criminal offences against her. When things did not go her way in the Family Court proceedings, she again went to the police and made even more heinous accusations against him. Those accusations were, in my opinion, fabricated at the time and even Ms. L. herself did not believe them. Nothing has changed since then. She continues to make the same accusations, all in a generalized, rote manner, over and over again. The doctors who have assessed her have characterized these accusations as delusional beliefs. Another explanation is that they are simply lies.
[52] However, regardless of whether Ms. L. genuinely believes these things to be true, or is simply continuing to tell the story she fabricated to excuse her own misconduct, I do not see any basis for finding her to be unfit. Assuming, without deciding, that she believes everyone in the court system who decides something against her is part of a conspiracy to persecute her, it seems to me that this is precisely the same case as was before the court in Taylor. Ms. L. is not incapable of instructing counsel because of her mental disorder. From time to time, while in this same “delusional” state, she has instructed counsel without any difficulty. She is capable of recounting to her lawyer her reasons for taking M to China and leaving her there, if indeed that is what happened. She also would have been perfectly capable of taking the witness stand and telling the jury her version of the events. She chose not to have a lawyer, just as she chose not to testify. That is her right. In my view, Ms. L. knows exactly what she is doing. She is always in control. Everything is orchestrated. She can turn it on and off like a switch, and did so repeatedly throughout the trial. She has chosen to portray herself as a victim and martyr, rather than a criminal. It has not turned out to be a winning strategy and clearly was not in her best interests. However, that is not the test.
[53] Ms. L. clearly understood the sentencing process and how it might affect her. She understood that she had been convicted of a criminal offence. On the January 26, 2016, 9:30 a.m. appearance, Mr. LeRoy, as amicus, advised the court that Ms. L. had spoken to him and indicated that she was considering bringing a Charter motion, as well as an appeal. Ms. L. herself confirmed that she wished to appeal her conviction. She had a notice of application that she wanted to read into the record, but offered to do that on the next appearance as she knew I had to be in another court at 10:00 a.m. She understood that a psychiatric assessment would be conducted. She made the very reasonable and rational request that the psychiatrist doing that assessment be given copies of any prior assessment reports. There were other occasions, as well, when Ms. L. sought assistance from counsel serving as amicus. Ms. L. clearly knew what was happening and was able to communicate with counsel as well as represent her own interests in the sentencing.
[54] In Taylor, as in the case before me, the accused met the first two criteria for fitness and the only issue was his ability to communicate with counsel. In Taylor, as in the case before me, the accused insisted that he was being maliciously prosecuted and illegally detained. In Taylor, as in the case before me, the accused maintained that participants in the justice system, including his own lawyer, were conspiring against him. His delusions prevented him from trusting anyone involved in the legal system, including his own lawyer, and therefore interfered with his ability to communicate effectively with counsel. In Taylor, as in the case before me, a psychiatrist opined that the accused’s pervasive delusions of persecution made him incapable of rationally communicating with counsel or rationally conducting his defence. The Ontario Court of Appeal set aside the trial judge’s finding that Mr. Taylor was unfit. The court applied the limited cognitive capacity test, and held:
Section 672.22 entrenches a general presumption of fitness. Where the Crown raises the issue of unfitness to stand trial, it has the onus to satisfy the burden of proving unfitness on a balance of probabilities. The appellant testified before Wren J. that he was prepared to cooperate with counsel of his choice at trial whose name he provided to the court. Nevertheless, as with any counsel, the possibility exists of disruption of the trial process by misbehaviour or outbursts of the accused due to his paranoia. The accused's difficulty in maintaining a collaborative relationship with counsel in his best interest may continue; indeed his paranoid distrust of counsel, his inability to understand and abide by the rulings of the court, are all matters which raise concerns in the expeditious conduct of the trial. However, we agree with the amicus curiae that these concerns do not affect the application of the proper test to determine whether the accused is capable of communicating with counsel for the purpose of conducting his defence. [15]
[55] The Supreme Court of Canada in Whittle adopted the limited capacity test applied by the Ontario Court of Appeal in Taylor. Sopinka J. held:
In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is not in the accused's best interests. It is not necessary that the accused possess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must have the mental capacity of an operating mind as outlined above. [16]
[56] Similarly, in Morrissey, Blair J.A. described the test as follows:
This threshold is not high. Indeed, Taylor has been criticized in some parts of the academic and medical communities for setting the bar too low and allowing some individuals to be found fit when their ability to make necessary decisions about their trial is severely affected by mental illness: see the commentaries collected in Barrett and Shandler, Mental Disorder in Canadian Criminal Law (Toronto: Thomson Carswell, 2006), pp. 3-6 to 3-7, fn 15. Nonetheless, the "limited cognitive capacity" test has been accepted across the country and was adopted by the Supreme Court of Canada in R. v. Whittle (1994), 92 C.C.C. (3d) 11 at pp. 25-26. It requires only a relatively rudimentary understanding of the judicial process - sufficient, essentially, to enable the accused to conduct a defence and to instruct counsel in that regard. It is in that sense that the accused must be able "to communicate with counsel" and relate the facts concerning the offence. [17]
[57] In her opinion, Dr. De Freitas recognized that she was “hampered” by the fact that Ms. L. refused to participate in the fitness assessment. Nevertheless, she stated her opinion that Ms. L.’s delusions of a persecutory nature “prevented her from accepting legal counsel to represent her, and as such have prevented her from communicating with counsel.” She further stated that Ms. L.’s refusal to have counsel was “not a rational [decision], but instead flows from her irrational fear, based on her delusions, that her lawyer will turn against her.” Assuming, without accepting, that this is the reason for Ms. L. dismissing counsel and refusing to hire new counsel, it does not meet the Taylor test. It may well be contrary to Ms. L.’s best interests to refuse counsel or to refuse to accept the advice of counsel. However, an analytical level of reasoning and decision-making is not required to meet the fitness test as established in Taylor and the many cases that have followed it.
[58] Dr. De Freitas also offered the opinion, based on her review of a limited number of transcripts, that Ms. L. was unfit to conduct her own defence as she had demonstrated an inability to respond to simple questions because she “was focused on her persecutory ideation.” I do not see it that way. Ms. L. understood everything that was going on. She maintained that the entire process was illegal and insisted that she would not cooperate in an illegal process. She was not incapable of focusing on the issue at hand. Her expressions of these supposedly delusional beliefs were always precipitated by some request that she answer a question, and thereby engage in the process. Almost invariably, she had a prepared text from which she read whenever she was asked such a question. While her conduct was disruptive, I saw it as deliberate. It may not have been the best rational choice for how to conduct her defence, but it was nevertheless a thought-out strategy that Ms. L. applied consistently.
[59] In my view, based on the cumulative evidence before me, there are no reasonable grounds to conclude Ms. L. is unfit for sentencing. She understands the process and knows what the issues are. She would be capable of communicating with counsel factors relevant to her sentencing if she wanted to do so, but she chose not to. Further, she would have been capable of putting forward information to assist her own cause if she wished, but she chose not to. These are choices she has made. Regardless of the legitimacy of a delusional disorder, that disorder did not so interfere with her cognitive capacity so as to render her unfit within the meaning of the case authority. Ms. L. has deprived M’s father of all contact with his daughter since December 2010. At that time, she was not suffering from any type of delusional disorder with respect to Mr. R. or anyone else. She was doing what was expedient for her and was being vindictive and dismissive of Mr. R.’s rights. Her strategy, when challenged, was to accuse Mr. R. of wrongdoing. When that was unsuccessful, she made increasingly more serious allegations against him. When those were dismissed by the courts, or when lawyers pointed out that those allegations could not be proven, she accused participants in the judicial system of conspiring with Mr. R. It is unclear to me if, somewhere along the line, this stubborn, controlling behaviour by Ms. L. evolved into a psychiatric disorder. However, even if it did, this does not make her unfit to participate in the sentencing process.
[60] As was noted in Taylor, the low threshold adopted for fitness “strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have a trial within a reasonable time.” [18] The events giving rise to these charges started in 2011. The court proceedings on these charges started in 2014. Ms. L. has been in custody since 2013. Delaying the sentencing process in order to conduct a fitness hearing would serve no useful purpose. Ms. L. is conducting her defence in the same manner and with the same strategy she has adopted throughout. That is her right. She is also entitled to have some resolution of these issues, rather than the indefinite, although undoubtedly lengthy, further delay that would result from a finding of unfitness and the process that would then be required to force her to have treatment. In my view, these are precisely the concerns that caused the court in Taylor to adopt the low threshold test that it did.
[61] Accordingly, I proceeded to sentence Ms. L. without conducting a full fitness hearing.
MOLLOY J. Released: September 21, 2016
Footnotes
[1] R. v. C.M.L., 2016 ONSC 5332. [2] R. v. C.M.L., Reasons for Sentence, 2016 ONSC 4406. [3] R. v. Whittle, [1994] 2 S.C.R. 914, 116 D.L.R. (4th) 416. [4] R. v. Taylor (1993), 11 O.R. (3d) 323 (C.A.). [5] Ibid, at p. 329. [6] Ibid. [7] Ibid, at p. 330. [8] Ibid. [9] Ibid, at p. 331. [10] Ibid, at p. 339. [11] R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 481. [12] Transcript of Proceedings, May 26, 2015, p. 4, lines 7-11. [13] Transcript of Proceedings, April 7, 2016, pp. 107-108, lines 20-30, 9-25. [14] Reasons for Sentence, 2016 ONSC 4406, at paras. 30-34. [15] R. v. Taylor, supra, note 4, at p. 339. [16] R. v. Whittle, supra, note 3, at pp. 941-942. [17] R. v. Morrissey, supra, note 11, at para. 27. [18] R. v. Taylor, supra, note 4, at p. 338.