COURT OF APPEAL FOR ONTARIO

DATE: 2006-02-21

DOCKET: C42046

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GHASEM SAAMEH (Appellant)

BEFORE:

ROSENBERG, CRONK and GILLESE JJ.A.

COUNSEL:

Ghasem Saameh, In Person

Joseph Di Luca, Amicus Counsel

Brian McNeely, for the respondent Her Majesty the Queen

HEARD & RELEASED ORALLY: February 15, 2006

On application by amicus counsel for an assessment order under s. 672.11(b) of the Criminal Code, R.S.C. 1985, c. C-46.

ENDORSEMENT

[1] On June 21, 2005, following a joint recommendation by duty counsel and the Crown, this court appointed counsel as amicus curiae in this matter. Amicus counsel subsequently applied for an order under s. 672.11(b) of the Criminal Code, R.S.C. 1985, c. C-46 directing an assessment of the mental condition of the appellant to determine whether, at the time of the commission of the predicate offences, he was suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) of the Code. On February 15, 2006, after hearing submissions by amicus counsel and the appellant, we dismissed the application for the following reasons.

[2] First, this application was opposed by both the Crown and the appellant.

[3] Indeed, the appellant strenuously objected to the proposed assessment on various grounds, including that, in his view, he had a valid defence at trial, the application and the role of amicus counsel undermine his right to conduct his own appeal, the appointment of amicus counsel was itself constitutionally flawed, and the involvement of amicus counsel should not be permitted to interfere with his right to argue his own appeal as he sees fit.

[4] It was clear to us, based on these and other submissions by the appellant, that the appellant understood the nature of the application and its implications.

[5] Second, the appellant was represented at trial by experienced defence counsel. The transcripts confirm that trial counsel for the appellant, acting on instructions from the appellant, did not raise a s. 16 defence. Instead, the defence challenged the identity of the driver. The theory of the defence was that the appellant was the victim of a police conspiracy designed to cover up a bungled police chase by fixing blame on the appellant for the tragic injuries sustained by the victims.

[6] Third, amicus counsel candidly acknowledged that the appellant was fit at trial and instructed his counsel not to raise a s. 16 defence. There was no suggestion before this court of ineffective representation of the appellant by his trial counsel.

[7] Fourth, the medical evidence before us did not demonstrate the necessity for the requested assessment.

[8] Prior to trial, the appellant was seen by a psychiatrist on at least four occasions and, after trial, the sentencing judge ordered a psychiatric assessment of the appellant for sentencing purposes. The resulting expert reports did not suggest that the appellant suffered from any major mental disorder or illness, delusions, or other disabling psychiatric condition. To the contrary, the two post-trial psychiatric assessment reports confirmed that, notwithstanding the appellant’s occasional grandiose claims, he was fit. The author of those reports opined that the appellant’s claims of police misconduct were more likely attributable to his character than to any underlying major mental illness.

[9] Nor does the most recent medical information justify the assessment sought.

[10] Dr. Paul Fedoroff, the psychiatrist who, at the request of amicus counsel, considered whether there are reasonable grounds to request a s. 672.11(b) assessment of the appellant, was not in a position to offer a diagnosis of the appellant’s condition. Thus, he did not express the opinion that the appellant suffered from any mental disorder or illness. Instead, understandably, Dr. Fedoroff only said that “a reasonable question could be raised” about whether a s.16 defence was implicated. This falls considerably short of the requisite showing that an assessment is necessary.

[11] Fifth, and importantly, the appellant has declined since trial, as is his right, to speak to physicians despite the request of various of his former counsel and the record suggests that he will similarly refuse to co-operate or communicate with any court-appointed medical assessor. As we have said, he is steadfast in his opposition to the proposed assessment. While this court could order the requested assessment, it cannot compel the appellant to participate in such an assessment if he is determined not to do so. The utility of the requested assessment, therefore, is highly questionable.

[12] Accordingly, assuming without deciding that this court has jurisdiction to order a s. 672.11(b) assessment solely at the request of amicus counsel and in the face of opposition thereto from the appellant and the Crown, on these facts, we are not persuaded that is necessary or appropriate to so do. The application, therefore, is dismissed.

[13] We conclude these reasons by expressing our view that this difficult but important application by amicus counsel was both proper and responsible in the circumstances.

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”