Court File and Parties

COURT FILE NO.: 13-CA7680 & 15-SA5064 DATE: 2017/01/12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – SANDY BILLINGS Respondent

Counsel: Dallas Mack, for the Crown Meaghan Thomas, for the Respondent

HEARD: January 11, 2017 (Ottawa)

Reasons for Decision

PARFETT J.

[1] The Crown seeks an order for a dangerous offender/long-term offender assessment pursuant to s. 752.1 of the Criminal Code. [1] The Crown wishes the court to designate Dr. Philip Klassen to perform this preliminary assessment. Defence counsel opposes this designation and proposes instead either Dr. J. Paul Federoff or alternatively one of two other forensic psychiatrists working at the Royal Ottawa Hospital.

[2] Section 752.1 provides:

On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed remand the offender, for a period not exceeding 60 days, to the custody of the person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.

[3] In this case, there is no issue that Mr. Billings fulfills the criteria that are pre-requisites to making an order for assessment.

[4] The issue is who should the court designate?

[5] Crown takes the position that once they have proposed an expert who has the necessary qualifications to perform the assessment that the matter ends there and the court must appoint that expert. It relies for its position on the case of R. v. C.(K.) where the judge stated,

I take the central question to be whether the person proposed can perform the assessment required. No further vetting is called for by the Court beyond simply determining whether the proposed expert can perform the function contemplated by section 752.1 in the general context of Part XXIV.

I disagree that section 752.1 ought to be used as a mechanism to allow the accused to participate in the selection of an expert so as to facilitate his presentation of evidence to the Court. [2]

[6] Defence counsel points to other caselaw in support of its position that the accused does have a role to play in the designation of the expert to do the assessment. In R. v. Blackwood [3] and R. v. Stratton [4], the court chose to designate the expert selected by the defence instead of the one the Crown preferred. Unfortunately, the Blackwood decision does not set out any reasons for the court’s preference for one of the two defence proposed experts. On the other hand, in Stratton, the judge noted:

In a ruling previously given, I held that the expert was appointed by the court, that neither side has a veto power over who the assessor should be, and that I was not obligated to choose the assessor from a list approved of by the Crown, given their otherwise lack of ability to have Mr. Stratton directly examined by a psychiatrist that they had confidence in. In the end result, I selected a well-qualified individual, who was the primary recommendation of the defence, over strenuous objection from the Crown, who has concerns about his credibility based on another case. [5]

[7] In my view, it is apparent that the weight of the caselaw favours the position of defence counsel that they do have a role to play in the determination of the proper person to conduct the assessment.

[8] That said there is still uncertainty over the precise extent of that role. I agree with the observation made in R. v. C.(K.) that [section 752.1] ‘should not be read to direct the invention of more comprehensive criteria for the Court to satisfy itself about the specific appropriateness of a given assessor.’ [6] Put another way, I do not think the court should be put in the position of wading through curriculum vitae trying to determine who would be the best assessor. It is not a good use of judicial resources.

[9] In my view, the proper approach for the court to take, where there is no agreement of counsel, is to defer to the Crown’s choice absent cogent and compelling reasons indicating that the Crown’s choice is inappropriate. I do so because the purpose of s. 752.1 is to prepare an assessment that the Crown can take to the Attorney-General in order to request consent to proceed to a dangerous or long-term offender application. The Crown will also be the party presenting that report to the court in the event consent is obtained. In these circumstances, the Crown needs to have confidence in the assessor chosen. Moreover, if the Crown has that confidence it will not be put in the awkward position that occurred in Stratton. In that case, the Crown was required to put forward the expert designated by the court but chosen by defence counsel as part of its case. The expert report did not support the Crown’s position in relation to the issue of dangerousness and the Crown had to request the opportunity to cross-examine their own witness. [7]

[10] In R. v. Gray the court took the same position I am taking. The court stated:

While I take no issue with the reading of section 752.1 that it is not a Crown choice or a Crown designation, and it is the Court who designates the psychiatrist, and the Crown does not get to unilaterally select whomever they want to conduct the assessment, that being said, in the absence of a cogent reason not to select the expert proffered by the Crown, such as qualifications or bias, it seems to me that the expert put forward by the crown should be designated. [8]

[11] To the list of possible cogent reasons for rejecting the expert proffered by the Crown, I would add the situation where the Crown’s expert is not available within a reasonable time.

[12] In the specific circumstances of this case, the Defence objects to the Crown’s choice of expert solely on the basis that he practices primarily in Toronto. Defence states that Mr. Billings is a long-time Ottawa resident and would remain so regardless of the outcome of the sentencing process. Consequently, Defence contends that given treatability is a significant factor in any decision in relation to a dangerous offender application that an in-depth knowledge of the local treatment programs is a prerequisite to a designation. However, Defence has put forward no evidence that Dr. Klassen does not have significant information concerning the treatment programs available in Ottawa. Defence counsel has simply assumed that as Dr. Klassen comes from Toronto he cannot possibly know what is available in Ottawa. As pointed out by the Crown, Dr. Klassen has conducted numerous assessments of Ottawa based offenders. Crown also points out that Dr. Klassen is available to conduct the assessment immediately.

[13] In the circumstances, I find there is no cogent or compelling reason not to designate Dr. Klassen as the assessor.

[14] Furthermore, there are good reasons to reject Defence counsel’s proposed assessors. Dr. Federoff was Mr. Billings’ treating psychiatrist. As such, Dr. Federoff has a history and a relationship with Mr. Billings. This type of situation may not arise frequently in criminal matters but it does in civil matters. Generally, treating physicians are not asked to also take on the role of neutral court expert as it may lead to accusations of bias. [9] Moreover, the two other psychiatrists suggested by Defence counsel are not available to start the assessment in a timely manner.

[15] In conclusion, I find that Dr. Klassen should be designated as the assessor in this matter pursuant to s. 752.1 of the Criminal Code.

Madam Justice Julianne Parfett Released: January 12, 2017

Footnotes

[1] R.S.C. 1985, c. C-46. [2] 2015 CarswellOnt 20834 (SCJ) at paras. 5 & 8. (K.C.) Emphasis in the original. [3] [2010] O.J. No. 4871 (SCJ) [4] [2010] O.J. No. 6323 (SCJ) [5] At para. 5. [6] K.C. at para. 5. [7] Stratton, at paras. 10-11. [8] Unreported decision of Maranger, J. released September 8, 2016 (SCJ). [9] Westerhoff v. Gee Estate (2015), 2015 ONCA 206, 124 O.R.(3d) 721 (C.A.)