Her Majesty the Queen v. H.A.H. [Indexed as: R. v. H. (H.A.)]

51 O.R. (3d) 321

[2000] O.J. No. 4200

Docket No. C34386

Court of Appeal for Ontario

Osborne A.C.J.O., Doherty and Simmons JJ.A.

November 8, 2000

Criminal law -- Young offenders -- Transfer -- Seventeen- year-old youth charged with second degree murder -- Youth suffering from schizophrenia -- Youth ordered transferred to youth court pursuant to s. 16 of Young Offenders Act -- Youth court judge misconstruing and misapplying expert evidence in concluding that youth not suffering from conduct disorder in addition to schizophrenia -- Youth failing to demonstrate likelihood of rehabilitation within seven-year dispositional period available under Act -- Crown's appeal allowed -- Young Offenders Act, R.S.C. 1985, c. Y-1, s. 16.

The respondent, aged 17 at the time of the alleged offence, was charged with second degree murder. He suffered from schizophrenia. The youth court ordered that he be transferred from adult court to youth court pursuant to s. 16 of the Young Offenders Act, R.S.C. 1985, c. Y-1. The central issue on the transfer hearing was whether the respondent had demonstrated that it was likely he could be rehabilitated within the seven- year dispositional period available under the Act. Resolution of that issue focused on whether the respondent suffered from a conduct disorder in addition to schizophrenia. The psychiatric evidence indicated that if the accused suffered only from schizophrenia, he was likely treatable in about five years, whereas if he also had a conduct disorder, forecasting future dangerousness was difficult, if not impossible. The sole psychiatrist to testify at the transfer hearing stated in examination in chief that it would be irresponsible to diagnose the respondent as suffering from a cond uct disorder based on the paucity of information available. In cross-examination, he agreed that there might be indications of a conduct disorder. The Crown appealed.

Held, the appeal should be allowed.

The youth court judge misconstrued and misapplied the psychiatrist's evidence by treating it as presenting two inconsistent assessments of the likelihood of conduct disorder, and by then choosing one which the youth court judge interpreted as supporting the conclusion that the respondent did not suffer from a conduct disorder. A consistent underlying premise of the psychiatrist's evidence was that he lacked sufficient information to either permit or rule out a diagnosis of conduct disorder. The youth court judge erred in proceeding to a definitive finding that the respondent did not suffer from a conduct disorder in the absence of significant additional evidence to fill the gaps in the information that was available to the doctors, when a major theme of the expert evidence was the difficulty of diagnosis because of inadequate information. The respondent had failed to demonstrate the likelihood of his rehabilitation within the seven-year dispositional period available under the Young Offenders Act.

APPEAL from an order transferring a youth from adult court to youth court.

Statutes referred to Young Offenders Act, R.S.C. 1985, c. Y-1, ss. 13, 16 [as am.]

Howard Leibovich, for appellants. Michael Lomer and Samantha Peeris, for respondent.

The endorsement of the court is as follows:

[1] BY THE COURT: -- The Crown appeals from the youth court's order that the respondent be transferred from adult court to youth court pursuant to s. 16 of the Young Offenders Act, R.S.C. 1985, c. Y-1 (the "YOA").

[2] The respondent is a Somalian refugee with little, if any, formal education and largely unknown antecedents. He entered Canada on May 26, 1997. His Canadian refugee claim was granted on August 10, 1999.

[3] The respondent was charged with second degree murder on October 24, 1998. His date of birth was assumed to be November 25, 1981 for the purpose of the transfer hearing. He was accordingly almost 17 years of age at the time of the alleged offence.

[4] Crown and police summaries filed on the transfer hearing indicate the respondent attended at an apartment on October 24, 1998 to summon his father home. Shortly after leaving with his father, the respondent returned to the apartment and asked to speak to the deceased in the hallway. Occupants of the apartment heard a bang against the door within moments after the deceased entered the hallway. One of the occupants opened the apartment door and observed the respondent stabbing the deceased in the chest with a knife. The respondent fled only after the occupant also brandished a knife. The deceased succumbed to multiple stab wounds inflicted in what the youth court judge described as "a frenzied stabbing" and an "act of stark horror".

[5] It is not disputed that the respondent suffers from a major mental illness, likely schizophrenia.

[6] It is also not disputed that the respondent is currently a danger to the public.

[7] The central issue on the transfer hearing was whether the respondent had demonstrated it was likely he could be rehabilitated within the seven-year dispositional period available under the YOA. Resolution of that issue focused on whether the respondent suffers from a conduct disorder in addition to schizophrenia. Expert evidence indicated that schizophrenia is likely treatable within five years, whereas forecasting future dangerousness is difficult, if not impossible, where a conduct disorder is present.

[8] Three psychiatric reports were filed on the transfer hearing. The first two reports were prepared for the primary purpose of addressing the respondent's fitness to stand trial. The last report, authored by Dr. Glancy, was a mental health assessment prepared pursuant to s. 13 of the YOA for the purposes of the transfer hearing.

[9] The respondent was initially held at the Toronto Youth Assessment Centre. In a report dated November 28, 1998, staff psychiatrist Dr. Goyer opined that as of the end of November, the respondent was "showing features of a psychotic illness resembling schizophrenia" and was then unfit to stand trial.

[10] On December 17, 1998, the respondent was transferred to METFORS for a 60-day assessment. He was treated with antipsychotic medication and found fit to stand trial in a report of the findings of a multidisciplinary team dated February 12, 1999 authored by attending psychiatrist Dr. Klassen. Dr. Klassen also found that "[d]iagnostically, Mr. H. appears to suffer from a major mental illness, that likely being schizophrenia. He may also suffer from conduct disorder. . . . I offer this diagnosis only tentatively." Dr. Klassen noted the variety of cultures and circumstances in which the respondent had lived and indicated that only a tentative diagnosis could be made.

[11] The respondent's self-reported history to Dr. Klassen included the following conduct: stealing in his teens prior to the age of 15 (with the comment he forgot from whom he stole other than family members); some physical aggression in his teens, including the use of stones as weapons, with the qualification aggression was not a significant difficulty for him; fighting with friends, though none were ever seriously injured; physically bullying smaller children in his teens; a history of cruelty to animals, though he forgot what it was he may have done; and a history of duplicity in his teens, though he forgot what he may have been duplicitous about. The respondent's sister reported he has a history of carrying a knife, as well as a history of threatening behaviour, property damage when angered and firesetting behaviour (which the respondent had specifically denied).

[12] In his report dated March 21, 2000, Dr. Glancy reviewed the histories and findings contained in the earlier reports. He indicated a possibility the respondent "may have evidence of major depressive episode with psychotic features" but "[h]is history is more typical of paranoid schizophrenia. . . ." He said "[i]t would be my contention that the psycho-social factors alluded to in other parts of this report and other reports confuse the picture so much that it is not possible at this stage to diagnoses [sic] conduct disorder. . . ." He also stated the respondent denied being involved in stealing, destruction of property or cruelty to animals, although he did acknowledge sometimes shooting birds with a slingshot. He said the respondent stated he did not lie a lot but would sometimes tell lies to other children. He noted that he had not spoken to any relatives, that school and employment records are not available and that psychological testing had not been conducted. He indicated some tests, such as those used to predict violence, would be of limited value in this case in any event because of the lack of historical information and the respondent's unusual background.

[13] Dr. Glancy was the only psychiatrist who testified at the transfer hearing. In examination in chief he stated it would be "irresponsible" to diagnose the respondent as suffering from a conduct disorder based on the lack of corroborative evidence available to develop a social history, the respondent's failure to share information, the respondent's exposure to life events outside the parameters used to standardize the diagnosis of conduct disorder (civil war, displacement) and the presence of a major mental illness. He indicated as well that the diagnostic criteria set out in the DSM-IV caution against misapplying the diagnosis to individuals in settings where "seemingly antisocial behaviour may be part of a protective survival strategy." He further opined that the respondent's many difficulties in the psycho-social spheres and absence of prior conflict with the law probably differentiate him from a conduct-disordered child. Dr. Glancy said it was very difficult to come to any conclusions regarding matur ity because of the presence of the mental disorder as well as the respondent's unusual background that set him apart from the norms.

[14] In cross-examination, Dr. Glancy acknowledged the vagueness of the information in this case made him "much less confident in testifying than in many cases" where he had an "information base to work from". Dr. Glancy agreed there may be indications of a conduct disorder and that he could not offer a diagnosis because of the dearth of information available. He acknowledged that some of the information he had received from the respondent was different than the information reported by Dr. Klassen. In addition, he commented on the lack of context and specifics in that information as well as the different purpose of Dr. Klassen's report. He agreed the respondent appears to be an unreliable historian but noted that the respondent's mental condition appeared to have fluctuated both during and after the METFORS assessment. He indicated his opinion of a five-year treatment term related only to schizophrenia and not the duration of potential dangerousness because "[i]n terms of dangerousness we have very little to work on in which I could make any sort of accurate predictions." Dr. Glancy stated he understood the respondent was taking his medication only about half the time just prior to the date of the transfer hearing.

[15] In re-examination when asked "if you have sort of a build up of indicia of the disorder (schizophrenia) . . . both before and after (the offence) does that not at least give some comfort to the view that it's most likely the mental disorder that is at the root of the problem . . .", Dr. Glancy said "[w]ell, I have had to apply my mind to this very question and I would say at this stage, I'm 50/50 on that question. I would need much more information which may not ever be available I'll allow. . . ."

[16] The youth court judge found that the respondent does not suffer from a conduct disorder "despite some troubling evidence". As an extension of that finding and based on the psychiatric evidence concerning the usual course of treatment for schizophrenia, he concluded the respondent is capable of rehabilitation within the dispositional period available under the YOA.

[17] The youth court judge stated the following about the evidence of Dr. Glancy:

Any fair reading of Dr. Glancy's testimony would suggest that something happened on the way to the conclusion of his evidence. He moved from a position set out in his report (supra) of it being "not possible at this stage to diagnose conduct disorder". Then on examination-in-chief he states that certain factors "probably differentiate him from a conduct disordered child" (supra). His final position in re-examination is that a conduct disorder is a "50/50" proposition. As with all evidence I can accept all, part or none of any witness's testimony. In this case, while I have great respect for Dr. Glancy's forensic ability, I am skeptical of and do not accept that part of his evidence that involves an attempt to reduce complex psycho-social processes to a percentage style of analysis.

. . . the real question is: is a conduct disorder likely or probably masked by the psychotic state? Dr. Glancy provides two, perhaps inconsistent responses: (1) (these factors) "probably differentiate him from a conduct disordered child" and (2) "I'm 50/50 on the question" (of whether a mental disorder or a conduct disorder is at the root of the problem). To the extent these responses are inconsistent I accept the first position as the more analytic and persuasive answer to the question of whether a conduct disorder is present.

The youth court judge relied on Dr. Glancy's observation that Dr. Klassen's tentative diagnosis of conduct disorder was not meant for the purpose of a transfer hearing. He accordingly minimized the evidentiary value of the diagnosis. He went on to review certain other features of the offence and the respondent's response to medication that he felt supported the finding that the respondent suffers from a major mental illness and not a conduct disorder.

[18] With respect, we consider the youth court judge misconstrued and misapplied Dr. Glancy's evidence by treating it as presenting two inconsistent assessments of the likelihood of conduct disorder and by then choosing one which the youth court judge interpreted as supporting the conclusion that the respondent does not suffer from a conduct disorder. A consistent underlying premise of Dr. Glancy's evidence was that he lacked sufficient information to either permit or rule out a diagnosis of conduct disorder. His somewhat varying quantifications of the likelihood of conduct disorder are but a reflection of the difficulty of diagnosis. He was unable to assist in predicting future dangerousness within and beyond the dispositional period of the YOA as a result. The tentative nature of Dr. Klassen's diagnosis was essentially consistent with this view.

[19] The youth court judge erred in proceeding to a definitive finding that the respondent does not suffer from a conduct disorder in the absence of significant additional evidence to fill the gaps in the information that was available to the doctors, when a major theme of the expert evidence was the difficulty of diagnosis because of inadequate information. The youth court judge's findings that certain features of the offence and the respondent's response to medication assisted in ruling out conduct disorder were not supported by the evidence.

[20] The onus is on the respondent to demonstrate that the matter should proceed in youth court based on the principles set out in s. 16 of the YOA. If the respondent fails to do so, the matter must proceed in ordinary court. We are not satisfied that the respondent has demonstrated the likelihood of his rehabilitation within the seven-year dispositional period available under the YOA. The appeal is therefore allowed and the decision of the youth court judge is set aside. In its place an order will issue that the proceeding against the respondent will remain in the ordinary court.

Appeal allowed.