Her Majesty the Queen v. Morrissey [Indexed as: R. v. Morrissey]

87 O.R. (3d) 481

Court of Appeal for Ontario,

Feldman, Blair and LaForme JJ.A.

November 9, 2007

Charter of Rights and Freedoms -- Fundamental justice -- Full answer and defence -- Accused fatally shooting victim and then shooting himself in head -- Accused suffering severe brain injury causing retrograde amnesia of events immediately prior to offence -- Accused's inability to remember this period not depriving him of his right to make full answer and defence -- Accused able to cross-examine witnesses and was able to call evidence relevant to defence of accident -- Claim of amnesia easily made and hard to disprove -- Not in public interest to prevent adjudication on merits solely because of memory loss -- Canadian Charter of Rights and Freedoms, ss. 7, 11(d).

Criminal law -- Evidence -- Testimonial capacity -- Accused fatally shooting victim and then shooting himself in head -- Accused suffering severe brain injury causing retrograde amnesia for period immediately prior to offence -- Trial judge not erring in refusing to instruct jury that testimonial competence was precondition to finding accused fit to stand trial -- Testimonial capacity different concept from fitness although some overlap in issues -- Testimonial capacity focusing on reliability and trustworthiness of evidence and onus on person raising issue to disprove presumption of capacity -- Trial judge best able to access capacity by hearing accused testify during competency voir dire barring evidence would cause accused emotional trauma or other injury if required to testify -- Accused choosing not to testify -- Trial judge not erring in holding that accused's inability to remember crucial details of offence not depriving him of his right to make full answer and defence.

Criminal law -- Fitness to stand trial -- Accused fatally shooting victim and then shooting himself in head -- Accused suffering severe brain injury causing retrograde amnesia for period immediately prior to offence -- Accused's ability to understand spoken language and express himself verbally not significantly impaired -- Accused able to understand nature and object of proceedings and possible punishment -- Inability to tell lawyer about events immediately prior to offence not amounting to inability to communicate with counsel -- Amnesia alone not rendering accused unfit to stand trial -- Accused in position similar to those lacking memory of offence due to stroke or other physical impairment or self-induced intoxication -- Trial judge not erring in refusing to instruct jury that testimonial competence was precondition to finding that accused was fit to stand trial.

The accused was charged with the first degree murder of his ex-girlfriend. The accused shot his ex-girlfriend in the head and she died. He shot himself in head, resulting in severe brain damage. The trial judge accepted that it was highly likely that the accused had retrograde amnesia for a period ranging from at least several to 30 or 45 minutes prior to the offence. She accepted the expert evidence there was a risk that the accused would confabulate an account of the events but would not be able to tell if his recollection was a real memory. She refused to accept defence counsel's request that she charge the jury to the effect that testimonial competence [page482] was a precondition to a finding of fitness to stand trial. The jury found the accused fit. He re-elected to be tried by judge alone. At the close of the Crown's case, defence counsel applied for a finding, pursuant to ss. 7 and 11(d) of the Charter, that the accused's right to make full answer and defence was fatally impaired because he was incompetent to testify, as a result of his inability to remember critical events (the "incompetency application"). The trial judge held that a ruling as to the accused's mental capacity to testify would require him to testify on a competency voir dire. He refused to do so. The incompetency application was dismissed. The accused was convicted of second degree murder. He appealed.

Held, the appeal should be dismissed.

Testimonial competence is not a condition precedent to fitness to stand trial. Although they may have overlapping characteristics, the two concepts, and the nature of the inquiries concerning them, are quite different. The rationale for the test for fitness is that the accused be able to participate meaningfully in the trial so that minimum standards of trial fairness are met. Fitness to stand trial deals with the accused's capacity to understand the nature and object of the proceedings, the possible punishment and to communicate with counsel. The key question regarding communication with counsel is whether the accused can seek and receive legal advice. There is no additional requirement that an accused be able to tell defence counsel about the events immediately prior to the offence, nor an ability to testify about those events. Moreover, amnesia alone does not render an accused unfit to stand trial. Even if, in a given case, testimonial incompetence (caused by incapacity to recall) could be a factor in a finding of unfitness, the evidence in this case provided no basis for a finding of testimonial incompetence or unfitness to stand trial.

Testimonial capacity focuses on the capacity of a witness to observe and recall events, and to communicate that recollection. A party challenging a witness' testimonial capacity bears the burden of disproving the presumption of competence. Barring evidence that requiring the challenged witness to testify on a competency voir dire would result in psychological or other harm or injury, the trial judge can best determine the issue by observing the accused testify during a competency voir dire. There was no evidence that testifying on the application would cause the accused any harm. The accused chose not to testify. The trial judge did not err in finding that, in the absence of his testimony on the application, the accused's application to be declared incompetent should be dismissed.

The trial judge did not err in finding no violation of the accused's Charter right to make full answer and defence. The accused had the opportunity to defend himself against the Crown's case. He was able to cross-examine Crown witnesses, to call defence witnesses, and even to adduce evidence to support the theory that the shooting was unintentional. The accused could have taken the stand to testify on the incompetency application, and chose not to do so. There are strong policy reasons for concluding that a claim of memory loss respecting the critical events in question, by itself, ought not to provide the foundation for a stay of proceedings, regardless of the cause of that disability. Such a memory loss is a prevalent claim in cases in which the accused is charged with a violent offence, and is easy to make and is difficult to disprove. If a claim of amnesia is available to support an abuse of process application under the Charter in cases such as this, it could lead to many cases being stayed and it would not be in the public interest to effectively grant immunity from prosecution for all amnesiacs on that basis alone.

APPEAL by the accused from the judgment of Fuerst J., [2003] O.J. No. 3961, [2003] O.T.C. 908 (S.C.J.), convicting the appellant of second degree murder.

Cases referred to R. v. McLeod, 1986 70 (SCC), [1986] 1 S.C.R. 703, [1986] S.C.J. No. 32, 66 N.R. 308, 27 C.C.C. (3d) 383, affg 1983 3605 (ON CA), [1983] O.J. No. 81, 66 N.R. 309, 6 C.C.C. (3d) 29 (C.A.) (sub nom. R. v. Farquharson); R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178, [2001] S.C.J. No. 4, 198 Nfld. & P.E.I.R. 260, 194 D.L.R. (4th) 427, 265 N.R. 304, 598 A.P.R. 260, 150 C.C.C. (3d) 449, 39 C.R. (5th) 255; [page483] R. v. Steele (1991), 1991 3882 (QC CA), 63 C.C.C. (3d) 149, 4 C.R. (4th) 53 (Que. C.A.); R. v. Taylor (1992), 1992 7412 (ON CA), 11 O.R. (3d) 323, [1992] O.J. No. 2394, 13 C.R.R. (2d) 346, 77 C.C.C. (3d) 551, 17 C.R. (4th) 371 (C.A.), consd Other cases referred to Bratty v. Attorney-General For Northern Ireland, [1963] A.C. 386, [1961] 3 All E.R. 523, [1961] 3 W.L.R .965 (H.L.); Conway v. The Queen, [2000] 172 A.L.R. 185 (F.C.A.); Hughes v. H.M. Advocate, [2002] S.C. (J.) 23 (H.C.J.); People of the State of Colorado v. Palmer, 31 P.3d 863 (Col. Supreme Ct., 2001); R. v. Arnold (2003), 40 M.V.R. 488 422 (S.A.S.C.); R. v. Boylen (1972), 1972 2256 (NS PC), 18 C.R.N.S. 273 (N.S. Mag. Ct.); R. v. Daniel Peter Richards, 1994 SASC 4889; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, [2000] S.C.J. No. 46, 49 O.R. (3d) 735n, 191 D.L.R. (4th) 539, 259 N.R. 336, 78 C.R.R. (2d) 53, 148 C.C.C. (3d) 97, 36 C.R. (5th) 223 (sub nom. R. v. D. (A.S.)); R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, [1994] S.C.J. No. 77, 64 Q.A.C. 81, 118 D.L.R. (4th) 469, 173 N.R. 1, 24 C.R.R. (2d) 1, 93 C.C.C. (3d) 21, 33 C.R. (4th) 165; R. v. Farley (1995), 1995 3501 (ON CA), 23 O.R. (3d) 445, [1995] O.J. No. 1278, 99 C.C.C. (3d) 76, 40 C.R. (4th) 190 (C.A.); R. v. H. (L.J.), 1997 22727 (MB CA), [1997] M.J. No. 450, 118 Man. R. (2d) 198, 149 W.A.C. 198, [1997] 10 W.W.R. 183, 120 C.C.C. (3d) 88 (C.A.) [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 569]; R. v. L.S.C., [2003] A.J. No. 388, 2003 ABCA 105, 13 C.R. (6th) 390; R. v. Lowe (1974), 1974 692 (ON CA), 6 O.R. (2d) 585, [1974] O.J. No. 2201, 21 C.C.C. (2d) 193 (C.A.); R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, 82 N.S.R. (2d) 271, 44 D.L.R. (4th) 193, 80 N.R. 161, 207 A.P.R. 271, 32 C.R.R. 41, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1 (sub nom. Lyons v. R.); R. v. Mailes, 2001 NSWCCA 155; R. v. Majid, 1997 11320 (SK QB), [1997] S.J. No. 507, 159 Sask. R. 104, [1997] 9 W.W.R. 464, 119 C.C.C. (3d) 161 (Q.B.); R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, 108 D.L.R. (4th) 47, 159 N.R. 81, 85 C.C.C. (3d) 193, 25 C.R. (4th) 1; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 80 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 69 C.R.R. (2d) 1, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207 (sub nom. R. v. M. (B.J.), Mills v. Canada (Attorney General)); R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243; R. v. Peepeetch, [2003] S.J. No. 542, 2003 SKCA 76; R. v. Podola (1959), 43 Cr. App. Rep 220, [1959] 3 All E.R. 418, [1959] 3 W.L.R. 718 (Ct. Crim. App.); R. v. Robertson (1968), 52 Cr. App. Rep. 690, [1968] 3 All E.R. 557 (Ct. Crim. App.); R. v. Roberts (1975), 1975 1394 (BC CA), 24 C.C.C. (2d) 539 (B.C.C.A.); R. v. Rose, 1998 768 (SCC), [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, 40 O.R. (3d) 576n, 166 D.L.R. (4th) 385, 232 N.R. 83, 57 C.R.R. (2d) 219, 129 C.C.C. (3d) 449, 20 C.R. (5th) 246; R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27, 173 D.L.R. (4th) 66, 239 N.R. 201, 63 C.R.R. (2d) 43, 134 C.C.C. (3d) 353, 24 C.R. (5th) 1; R. v. Trecroce, 1980 2854 (ON CA), [1980] O.J. No. 1352, 55 C.C.C. (2d) 202 (C.A.); R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, [1994] S.C.J. No. 69, 116 D.L.R. (4th) 416, 170 N.R. 16, 23 C.R.R. (2d) 6, 92 C.C.C. (3d) 11, 32 C.R. (4th) 1; Reference Re R. v. Gorecki (No. 1) (1977), 1976 833 (ON CA), 14 O.R. (2d) 212, [1976] O.J. No. 2307, 32 C.C.C. (2d) 129 (C.A.); Russell v. H.M. Advocate, [1946] S.C.(J.) 37 (H.C.J.); United States v. Andrews, 469 F.3d 1113 (7th Cir., 2006) Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, c. 5, s. 16 [as am.] Canadian Charter of Rights and Freedoms, ss. 7, 11(d) Criminal Code, R.S.C. 1985, c. C-46, ss. 2 "unfit to stand trial" [as am.], 672.22, 672.23 Authorities referred to Barrett, J. and R. Shandler, Mental Disorder in Canadian Criminal Law (Toronto: Thomson Carswell, 2006) [page484] Greenspan, E. and M. Rosenberg, eds., Martin's Annual Criminal Code (Aurora, Ont.: Canada Law Book, 2007) Tollefson, E.A. and B. Starkman, Mental Disorder in Criminal Proceedings (Toronto: Thomson Carswell, 1993) Watt, D. and M. Fuerst, Tremeear's Criminal Code (Toronto: Thomson Carswell, 2008)

Timothy E. Breen, for appellant. David Finley, for respondent.

The judgment of the court was delivered by

BLAIR J.A.: -- Overview

[1] The issues raised on this appeal revolve around the interplay between the appellant's testimonial capacity, on the one hand, and his fitness for trial together with the fairness of that trial, on the other. Specifically, the appellant argues that his inability to remember the events surrounding the death of his ex-girlfriend render him unfit to stand trial for her homicide and in any event, justify a stay of the proceedings against him on abuse of process grounds because his amnesia deprives him of his ability to make full answer and defence.

[2] Mr. Morrissey could not cope with rejection. Three weeks after he and his girlfriend, Melissa Pajkowski, had broken up, he forced his way into his father's gun cabinet, took out a .22 calibre pistol and two boxes of ammunition, and drove to Ms. Pajkowski's residence in his father's Jeep. There, he picked her up and proceeded to drive north on Bathurst Street in the area of Newmarket.

[3] The vehicle -- moving at a high rate of speed -- was spotted by a police officer conducting radar speed control. He signalled the Jeep to stop. When it failed to do so, he initiated pursuit with siren and cruiser lights activated.

[4] Moments later, Mr. Morrissey shot Ms. Pajkowski in the head, then turned the gun on himself and fired a single shot to the middle of his forehead. Ms. Pajkowski died from the gunshot wound. Mr. Morrissey did not. He survived his suicide attempt, but suffered a very severe brain injury. [^1] [page485]

[5] The effects of that brain injury are central to this appeal.

[6] Mr. Morrissey was charged with first degree murder. At the outset of trial, the defence requested a hearing to determine the appellant's fitness to stand trial. The issue was tried by a jury but the trial judge, Fuerst J., refused to accept defence counsel's request that she charge the jury to the effect that testimonial competence was a pre-condition to a finding of fitness to stand trial. The jury found the appellant fit. He then re-elected to be tried by Fuerst J. alone, without a jury.

[7] At the close of the Crown's case, defence counsel applied for a finding, pursuant to ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, that the appellant's right to make full answer and defence was fatally impaired (the "Incompetency Application"). This impairment of the appellant's right to make full answer and defence was said to flow from the fact that he was incompetent to testify, itself a consequence of his inability to remember the critical events. The trial judge held that a ruling as to the appellant's mental capacity to testify would require him to testify on a competency voir dire. This, the appellant declined to do. The Incompetency Application was therefore dismissed.

[8] The appellant submits that the trial judge erred in failing to instruct the jury at the fitness hearing that an accused person's testimonial competence is a pre-condition to his or her fitness to stand trial. He further submits that the trial judge erred in requiring him to testify on a competency voir dire in relation to the Incompetency Application. Finally, although he did not pursue this argument orally, the appellant alleged in his Notice of Appeal that he had been denied the right to make full answer and defence and, accordingly, that the proceedings should have been stayed on abuse of process grounds.

[9] I disagree, and, as I shall explain, would dismiss the appeal for the following reasons: (a) Testimonial competence is not a condition precedent to fitness to stand trial. Although they may have overlapping characteristics, the two concepts, and the nature of the inquiries concerning them, are quite different. Moreover, amnesia alone does not render an accused unfit to stand trial. (b) Even if, in a given case, testimonial incompetence through incapacity to recall could be a factor in a finding of unfitness, the evidence in this case provides no basis for a finding of testimonial incompetence or unfitness to stand trial. [page486] (c) The trial judge did not err in ruling that the appellant could not meet the burden on the Incompetency Application without testifying. (d) Nor did she err in finding no violation of the appellant's Charter right to make full answer and defence. Factual Background

The circumstances of Mr. Morrissey and Ms. Pajkowski

[10] A full outline of the factual background is unnecessary, as the issues raised on the appeal revolve only around the appellant's testimonial capacity. However, some of the history is helpful in understanding the context in which this sad tragedy unfolded.

[11] The appellant lived at home with his parents, Drs. John and Claire Morrissey. He had experienced some difficulties as a young child, expressing thoughts of suicide, and as a teenager had spent some time in a drug treatment centre because of his use of marijuana. Between 1995 and 1998, he had been prescribed Prozac as treatment for depression. He struggled at school because of learning disabilities and, although he had completed Grade 12 some years before the homicide, he subsequently failed to complete a program at George Brown College. He was not working at the time of the homicide. As the trial judge noted"[b]y April 1999, it seemed that [Mr. Morrissey's] life was not moving ahead".

[12] There had been other girlfriends in the past, but these relationships had not been successful. The appellant attempted to commit suicide following the termination of one of them. In the context of these relationships and their subsequent breakdowns, he appears to have been emotional, intense, frustrated, angry and, at times, sorrowful.

[13] The appellant and Ms. Pajkowski had been in a romantic relationship for about a year, but that relationship had ended about three weeks before the homicide. Ms. Pajkowski was living at home as well with her parents, Dr. and Mrs. Pajkowski. She was working part-time at a local grocery store and attending night school to complete her high school education. Although she had experienced difficulties in the past, she was focusing on moving forward and getting her life in order. She was described as being independent, strong-willed and confident.

[14] The relationship between Mr. Morrissey and Ms. Pajkowski was turbulent at times, as they argued and quarrelled frequently. It was the appellant who finally ended it. Nonetheless, he was [page487] distraught over the break-up and continued to contact Ms. Pajkowski thereafter. They talked and met on several occasions. Ms. Pajkowski insisted that the relationship was over and even considered obtaining a restraining order because of Mr. Morrissey's possessive conduct. She appears, however, to have been reluctant to hurt the appellant by rebuffing him altogether. When she began dating other men, the appellant became upset and there is some evidence that he threatened violence towards her in the days leading up to her death. A few nights before the homicide occurred the appellant was found lying prostrate on the Pajkowski's front lawn; he had attempted to commit suicide.

[15] Although the appellant was hospitalized following this event, he was subsequently released. A few days later, the unfortunate homicide/attempted suicide that forms the basis for this appeal took place. Mr. Morrissey was 26 years old at the time; Ms. Pajkowski was 21.

The appellant's mental condition at the time of trial

[16] On both the fitness hearing and the Incompetency Application the appellant relied heavily on the testimony of Dr. John Salmon (a neuropsychologist) and Dr. Hy Bloom (a forensic psychiatrist), both of whom assessed Mr. Morrissey for purposes of the proceedings. Their evidence is summarized by the trial judge in paras. 10-19 of her reasons on a broad stay application addressed at various stages of the proceeding (reported at 2003 8150 (ON SC), [2003] O.J. No. 2851, 177 C.C.C. (3d) 428 (S.C.J.)). For the sake of convenience, and as a ready summary of their testimony, I recite that synopsis here [at paras. 10-19]:

. . . Mr. Fleming relies in particular on the testimony of Dr. John Salmon and Dr. Hy Bloom given on the fitness hearing, which on consent has become part of the evidence on the trial. For the purpose of this application, a brief summary of the relevant aspects of their testimony is sufficient.

Dr. Salmon is a neuropsychologist who assessed Mr. Morrissey in 1999. He testified that Mr. Morrissey suffered a severe to very severe brain injury. He had been close to death. There were multiple bullet fragments in the left frontal lobe of the brain. There had been swelling of the brain, and bleeding. Mr. Morrissey had a craniotomy, and later had the bone flap replaced.

In Dr. Salmon's opinion, it is highly likely that Mr. Morrissey has retrograde amnesia, meaning amnesia for events prior to his brain injury, of at least several minutes to one-half hour before the injury occurred, and probably for 45 minutes. He cannot state the number of minutes with absolute certainty. There is moderate probability of memory loss for events in a period of hours before the injury occurred, but Dr. Salmon is less confident about that. The more one moves away from the time of the brain injury, the more questionable is the retrograde amnesia. During the period for which there is [page488] retrograde amnesia, it is possible that Mr. Morrissey has "islands" of memory, meaning discrete episodes that he is able to recall.

Based on his interview of Mr. Morrissey, Dr. Salmon concluded that Mr. Morrissey has some recollection of events on the morning of the shooting, but very little recollection of anything after about [30-45 minutes prior to the shooting]. Dr. Salmon stated, however, that he did not question Mr. Morrissey very much about the specifics of that day.

Dr. Salmon said that there are two possibilities with retrograde amnesia: either the person never formulated the memories to begin with, or lost any memories that were formed. In Dr. Salmon's opinion, retrograde amnesia is more consistent with never having formulated a memory, and so the chances are extremely high that Mr. Morrissey never formed a memory of events for the several minutes up to the point of his gunshot injury.

Dr. Salmon testified that a brain-injured person can confabulate, meaning create a false memory of something for which he/she has no memory. The person cannot discern that the memory is false.

Dr. Hy Bloom, a forensic psychiatrist, assessed Mr. Morrissey in late 2002, on the issue of fitness to stand trial. He concluded that Mr. Morrissey suffers from an organic amnestic disorder/frontal lobe syndrome. His opinion was that Mr. Morrissey was fit to stand trial. He testified at the fitness hearing that Mr. Morrissey's deficits include an impaired ability to learn new information and to recall previously learned information. His strength is in remembering verbal information, especially if it has a theme. He has a problem remembering visual and spatial material and would need someone to read such material to him. He has some impulsivity, poor judgment, and a failure to monitor the potential negative consequences of what he says. These are features of frontal lobe syndrome. Dr. Bloom said that these limitations would be particularly relevant if Mr. Morrissey were to testify, but he noted that Mr. Morrissey was aware of each one of his limitations.

Dr. Bloom does not have expertise in the field of neuropsychology, but he was prepared to accept Dr. Salmon's opinion about Mr. Morrissey's retrograde amnesia. Mr. Morrissey advised Dr. Bloom that he does not have memory for the events in question. Mr. Morrissey told Dr. Bloom that he and Ms. Pajkowski had got back together the week before the shooting and were trying to get on good terms. He recalled going to her place the week before to exchange possessions. He did not recall getting into his father's gun cabinet. He recalled that the shooting took place on Bathurst Street in Newmarket and that he was driving his father's Jeep. He told Dr. Bloom that his intention that day was to commit suicide. Although Dr. Bloom's discussion with Mr. Morrissey about what took place on Bathurst Street was fairly limited, he accepted that Mr. Morrissey did not have a clear independent memory of what had occurred ("the critical events").

Mr. Morrissey and his parents reported to Dr. Bloom that he confabulates. Dr. Bloom testified that this occurs principally in persons who are brain-damaged through injury or disease and have memory loss, for example as a result of alcohol abuse. It is a natural compensation process. There is a substantial risk that Mr. Morrissey has learned information about what happened from other sources, and that he has pieced information together like a tapestry. He may not know what he remembers, and what has come from another source. Anything that he has said, or might say, about the events [page489] may be untrue. He is not capable of giving reliable information about the critical events, because of his lack of memory. If he took the witness stand he would have to say that he does not remember the critical events. His brain injury is permanent and it is unlikely that in the future he will be able to recapture the memory he has lost, especially if he never laid it down in the first place. Mr. Morrissey can communicate with counsel in the sense that he can have a conversation, but it does not seem that he is able to recount the critical events. In Dr. Bloom's opinion, however, there is nothing to suggest that Mr. Morrissey is incapable of communicating with his counsel. He has the capacity to communicate whatever facts he does have, and he is ready to collaborate with his lawyer.

Dr. Bloom testified that it was not part of his mandate to determine the accuracy of the pieces of information that Mr. Morrissey did give him about the incident and events prior to it. He could not say to what extent Mr. Morrissey's recollection was accurate. Dr. Bloom stated that Mr. Morrissey's ability to testify relevantly was an unknown. (Emphasis added)

[17] The trial judge accepted that: (a) it is highly likely Mr. Morrissey has retrograde amnesia for a period ranging from at least several, to 30 or 45 minutes, prior to his brain injury; (b) there is a possibility that he has islands of memory for events during that period; and (c) there is a risk of confabulation concerning events for which he has no memory.

[18] Appellant's counsel places particular emphasis on Dr. Bloom's testimony that the appellant "is not capable of giving reliable information about the critical events, because of his lack of memory". The trial judge did not specifically accept that evidence, however, although she did not reject it either. She concluded her findings on the broader stay application by saying [at para. 25]:

On the evidence, it is unclear what islands of memory Mr. Morrissey may have. It also is unclear whether, or to what extent, he has amnesia for events prior to the period specified in subparagraph (a) above, including the several days leading up to April 22, the night of April 22, and the early morning of April 23. It was not the mandate of either Dr. Salmon or Dr. Bloom to attempt to determine precisely what Mr. Morrissey can recall, or the accuracy of anything he does purport to recall.

[19] On the Incompetency Application, the appellant also relied on the testimony of Dr. Nathan Pollock, an expert in neuropsychology who had testified at the fitness hearing. Dr. Pollock was also of the opinion that the appellant had suffered a very severe and permanent brain injury and that he was exhibiting [page490] symptoms consistent with frontal lobe injury. He administered a number of tests to the appellant, concluding that the appellant had suffered a significant decline in intellectual functioning, quite likely as a result of the brain injury. He found Mr. Morrissey to be in the low average range for general intelligence, average in verbal intelligence and borderline for non-verbal intelligence. The appellant had virtually lost his ability to comprehend written material and to express himself in writing. However, his capacity to understand spoken language and to express himself verbally was relatively unimpaired, as he had "adequate verbal abilities, including language comprehension and expression, recall of information and the ability to reason with words". Dr. Pollock was of the opinion that the appellant's capacity to assimilate verbal information would allow him to understand the fundamentals of the trial process, including the roles of the individuals involved (judge, jury, lawyers, witnesses, the accused), the nature of the charges, the available pleas, the consequences of a conviction and the meaning of an oath. To the extent that the information Mr. Morrissey encountered in a legal proceeding would consist of orally presented or verbal material, Dr. Pollock felt that "he would be quite capable of adequately participating in his defence". Analysis

[20] In his factum and in oral argument, Mr. Breen founded his challenge to Mr. Morrissey's conviction on two grounds. First, he submitted that the trial judge erred in failing to instruct the fitness jury on the relationship between testimonial competence and fitness, and to charge them on the elements of testimonial competence pursuant to s. 16 of the Canada Evidence Act, R.S.C. 1985, c. C-5. In particular, he contended that she erred in failing to instruct the jury that the appellant's testimonial competence in relation to the critical events surrounding the homicide was a pre-condition to his being fit to stand trial. Secondly, he argued that the trial judge erred in holding that the appellant was required to testify as a pre-condition to any ruling being made on testimonial competence in the context of the Incompetency Application. A. Testimonial competence and fitness to stand trial

[21] I do not accept the submission that the trial judge erred in failing to instruct the jury at the fitness hearing that testimonial competence is a condition precedent to a finding of fitness. [page491]

Testimonial competence

[22] The notion of testimonial competence has been developed in the context of determining whether witnesses have the capacity to testify. Section 16 of the Canada Evidence Act addresses this question from the perspective of persons "whose mental capacity is challenged". Its relevant provisions state:

16(1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine (a) whether the person understands the nature of the oath or a solemn affirmation; and (b) whether the person is able to communicate the evidence. . . . . .

(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.

[23] As a component of the ability "to communicate the evidence", s. 16 continues to embrace the common law elements of testimonial competence, namely (1) the capacity to observe (including interpretation); (2) the capacity to recollect; and (3) the capacity to communicate: see R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, 85 C.C.C. (3d) 193, at pp. 219-20 C.C.C.; R. v. Farley (1995), 1995 3501 (ON CA), 23 O.R. (3d) 445, [1995] O.J. No. 1278, 99 C.C.C. (3d) 76 (C.A.).

Fitness to stand trial

[24] The test for fitness to stand trial as now codified in s. 2 of the Criminal Code, R.S.C. 1985, c. C-46 is different:

"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.

[25] "Testimonial competence" is not a component of that definition. Rather, the ability to "communicate with counsel" is. Although one of the elements of testimonial competence is the ability "to communicate the evidence", communicating the evidence and communicating with counsel are not necessarily the same things. Moreover, testimonial competence and fitness for [page492] trial are different, albeit related, concepts, and are founded upon different rationales. In my view, therefore, although factors relating to an accused person's ability to testify may be relevant to the fitness inquiry -- as, indeed, the trial judge instructed the jury in this case -- the testimonial competence of the accused, as contemplated at common law and pursuant to s. 16 of the Canada Evidence Act, is not a condition precedent to the accused being declared fit to stand trial. I say this for the following additional reasons.

Testimonial competence is not a condition precedent to fitness to stand trial

[26] There is no dispute in this case that the appellant suffers from a mental disorder resulting from his brain injury. He is diagnosed as having both an "amnestic disorder" and "frontal lobe syndrome", each a mental disorder. Nor is it disputed that he meets the first two specific criteria of fitness to stand trial, namely, that he understands the nature and object of the proceedings and that he understands their possible consequences. The medical evidence amply supports those findings. At issue, fundamentally, is whether the criterion that the appellant be able to "communicate with counsel" necessarily encompasses the standard that he be competent to testify and, in particular, that he be competent to testify about the critical events of the homicide and to relate them to his lawyer. In my view, it does not.

[27] In R. v. Taylor (1992), 1992 7412 (ON CA), 11 O.R. (3d) 323, [1992] O.J. No. 2394, 77 C.C.C. (3d) 551 (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 55 (SCC), [1994] 2 S.C.R. 914, [1994] S.C.J. No. 69, 92 C.C.C. (3d) 11, at pp. 933-34 S.C.R., pp. 25-26 C.C.C. 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 [page493] regard. It is in that sense that the accused must be able "to communicate with counsel" and relate the facts concerning the offence.

[28] The Taylor test for limited cognitive capacity has been condensed in some authorities and commentaries -- in my view, imprecisely -- into a simple "inquiry into whether an accused can recount to his/her counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence" (Taylor, supra, at para. 44): see R. v. L.S.C., 2003 ABCA 105, [2003] A.J. No. 388, 13 C.R. (6th) 390 (C.A.), at para. 10; R. v. Peepeetch, [2003] S.J. No. 542, 2003 SKCA 76, at para. 52. [^2] I make the following observations in this respect.

[29] First, the concept that the accused must be able to recount "the necessary facts relating to the offence in such a way that counsel can then properly present a defence" must be interpreted in a purposive and functional manner, in my view. It is intended to refer more broadly to the accused person's ability to recount the facts generally relating to the offence or offences with which he or she has been charged. It is not intended to narrow the inquiry solely to the ability to relate the immediate facts pertaining to the particular incident giving rise to the crime (e.g., the immediate events surrounding the actual shooting in this case). This makes sense, since the thrust of the concept of unfitness to stand trial is that the accused is unable to conduct a defence or to instruct counsel to do so. The ability to communicate with counsel in the context of a fitness inquiry speaks to the ability to seek and receive legal advice. An inability to recount the facts immediately connected with the event giving rise to the charges is not the same as an inability to communicate with counsel in a way that permits an accused to seek and receive effective legal advice. Moreover, there are instances where an accused may wish to -- or may be able to do nothing but -- formulate a defence based on the contention that he or she is unable to remember the events in question.

[30] Secondly, even if the reference to the accused person's ability to recount the facts relating to the offence is to be interpreted narrowly in the sense of the ability to recount the events surrounding the criminal incident itself, then in my view Taylor is misconceived as standing for that proposition. [page494]

[31] In making the comment referred to above, Lacourcière J.A. was simply reciting one of the submissions of amicus curiae on behalf of Mr. Taylor. This was followed immediately by a summary of those submissions by amicus curiae that were accepted by Crown counsel, and which did not include the foregoing proposition. Lacourcière J.A. did not say that the court accepted the contention of amicus curiae in this regard. Indeed, it was unnecessary for him to consider it, as the issue in the case was not whether Mr. Taylor could recall the events of the crime, but rather whether he was so delusional that he was unable to instruct counsel in a manner that was reflective of his own best interests. It was the latter concern that was at issue in the case, and Taylor stands for the propositions that (a) the "limited cognitive capacity" test governs the determination of fitness to stand trial, and (b) that this test does not require the accused person to be capable of giving instructions to counsel that are in his or her best interests.

[32] Instead, what the court said in Taylor (at para. 46) was that "the appropriate test at common law for unfitness" is set out in Reference Re R. v. Gorecki (No. 1) (1977), 1976 833 (ON CA), 14 O.R. (2d) 212, [1976] O.J. No. 2307, 32 C.C.C. (2d) 129 (C.A.) and in R. v. Trecroce, 1980 2854 (ON CA), [1980] O.J. No. 1352, 55 C.C.C. (2d) 202 (C.A.). In Gorecki, the court relied upon the following statement in R. v. Robertson (1968), 52 Cr. App. Rep. 690, [1968] 3 All E.R. 557 (Ct. Crim. App.), at p. 694 Cr. App. Rep.:

The test which is always referred to in these cases and which has been confirmed and followed over and over again is to be found in Pritchard (1836) 7 C. & P.R. 303 in which Alderson B., in dealing with a deaf-mute said this to the jury: 'There are three points to be inquired into: -- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial, so as to make a proper defence -- to know that he might challenge any of you to whom he may object -- and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation. (Emphasis added)

[33] In Trecroce, Martin J.A. said, at, p. 216 C.C.C.:

On the resumption of the hearing both Dr. Fleming and Dr. Coulthard gave evidence on the issue of the appellant's fitness to instruct counsel. They were in general agreement that the appellant suffers from a mental disorder. They were of the opinion, however, that he understood the nature of the proceedings and the functions of the persons involved in them. He knew what the issues were and the possible outcome of the proceedings. The appellant, in their opinion, was able to follow the evidence generally, although he might misinterpret it. They were of the opinion that the appellant was capable of instructing counsel although he might disagree with counsel as to how the case should be conducted, and might not act with good judgment. The [page495] appellant did not want to be seen as mentally ill, and was opposed to the issue of insanity being considered by the Court. We concluded on the basis of the evidence of Dr. Fleming and Dr. Coulthard that the appellant was competent to instruct counsel: see Reference Re R. v. Gorecki (No. 1). (Citations omitted; emphasis added)

[34] Neither of these authorities suggests that an accused person's ability to relate the immediate events surrounding the actual crime is a prerequisite to a finding of fitness to stand trial. As noted, that question was not before the court in Taylor. Neither was it the issue in L.S.C. or Peepeetch, supra. It is the issue on this appeal, however, and I am not persuaded that an accused person's inability to relate to counsel the immediate events surrounding the homicide necessarily leads to the conclusion that he or she is unfit to stand trial.

[35] In Taylor, Lacourcière J.A. explained the rationale underpinning the fitness for trial concept. At para. 50 he said:

To determine whether the test should be modified as suggested by the respondent, one must remain cognizant of the rationale for the fitness rules in the first place. In order to ensure that the process of determining guilt is as accurate as possible, that the accused can participate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is maintained, and that, if necessary, the determination of a fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way. At the same time, one must consider that principles of fundamental justice require that a trial come to a final determination without undue delay. The adoption of too high a threshold for fitness will result in an increased number of cases in which the accused will be found unfit to stand trial even though the accused is capable of understanding the process and anxious for it to come to completion. . . . . .

The "limited cognitive capacity" test 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. (Emphasis added)

[36] An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice such as the right to be present at one's own trial and the right to make full answer and defence: see R. v. Steele (1991), 1991 3882 (QC CA), 63 C.C.C. (3d) 149, 4 C.R.R. (4th) 53 (Que. C.A.), at pp. 172-73 and 181 C.R.; R. v. Roberts (1975), 1975 1394 (BC CA), 24 C.C.C. (2d) 539 (B.C.C.A.). Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness.

[37] Minimum standards of reliability and trustworthiness, on the other hand, are the principal underpinnings of testimonial competency concerns. These are different goals than those [page496] underlying the requirement of fitness for trial. As McLachlin J. (as she then was) noted with respect to testimonial competency, in Marquard, supra, at p. 236 S.C.R., p. 219 C.C.C."[t]he goal is not to ensure that the evidence is credible, but only to assure that it meets the minimum threshold of being receivable".

[38] There is no need, therefore, to collapse the notion of testimonial competence into the notion of fitness for trial in order to meet the objectives of either concept. Mr. Breen argues, nonetheless, that because the appellant is incapable of communicating the evidence with respect to the critical events surrounding the homicide, the appellant is incompetent to testify; accordingly, he must be declared unfit for trial because he is similarly incapable of communicating that evidence to his counsel. In my view, however, there are two principal flaws in this argument.

[39] First, as indicated above, the ability to communicate the evidence (for purposes of testimonial competence) and the ability to communicate with counsel (for purposes of fitness for trial), are not the same concepts. The former evokes the capacity to perceive, recollect and communicate matters relating to the issues before the court. The latter contemplates the ability to communicate with counsel for the purposes of conducting a defence, considering counsel's advice, and giving instructions with respect to the defence. As Carrothers J.A. put it in R. v. Roberts, supra, at p. 545 C.C.C. -- in language that is still pertinent, albeit pre- Charter, and that was picked up by the trial judge in this case in her charge at the fitness hearing:

It is a prerequisite to any criminal trial that the accused be capable of conducting his defence. Subject only to disruptive conduct on his part, he must be physically, intellectually, linguistically and communicatively present and able to partake to the best of his natural ability in his full answer and defence to the charge against him. (Citations omitted; emphasis added)

[40] Secondly, while the inability of a person to recall or testify about the immediate events surrounding a crime may be a factor to be weighed in determining whether the Crown has met its onus of establishing guilt beyond a reasonable doubt, amnesia has never been considered, by itself, to be a basis for declaring the accused unfit for trial or for relief from prosecution or conviction. The jurisprudence in Canada, the United Kingdom, Australia and the United States is consistent in this regard: see R. v. Lowe (1974), 1974 692 (ON CA), 6 O.R. (2d) 585, [1974] O.J. No. 2201, 21 C.C.C. (2d) 193 (C.A.), at pp. 198-99 C.C.C.; R. v. H. (L.J.), 1997 22727 (MB CA), [1997] M.J. No. 450, 120 C.C.C. (3d) 88 (C.A.); R. v. Podola (1959), 43 Cr. App. Rep. 220, [1959] 3 All E.R. 418 (Ct. Crim. App.), at pp. 240-42 Cr. App. Rep.; [page497] Bratty v. Attorney-General For Northern Ireland, [1963] A.C. 386, [1961] 3 All E.R. 523 (H.L.), at p. 409 A.C.; Russell v. H.M. Advocate, [1946] S.C. (J.) 37 (H.C.J.); Hughes v. H.M. Advocate, [2002] S.C. (J.) 23 (H.C.J.); R. v. Daniel Peter Richards, 1994 SASC 4889, at paras. 16-27; R. v. Mailes, 2001 NSWCCA 155; Conway v. The Queen, [2000] 172 A.L.R. 185 (F.C.A.), at paras. 308-309; R. v. Arnold (2003), 40 M.V.R. 488 422 (S.A.S.C.), at paras. 56-69; People of the State of Colorado v. Palmer, 31 P.3d 863 (Col. Supreme Ct., 2001); and United States v. Andrews, 469 F.3d 1113 (7th Cir., 2006) at 1116-119.

[41] In R. v. H. (L.J.), supra, the Manitoba Court of Appeal observed, at p. 91 C.C.C.:

The issue before the Court arises from the amnesia the accused says he now suffers -- the impairment of his ability to recall past experiences. Counsel's review, and the Court's own research, have been unable to find a single case in Anglo-Canadian jurisprudence in which the amnesia of the accused has resulted in his acquittal or in the discontinuance of the proceedings against him. In "Amnesia: A Case Study in the Limits of Particular Justice" (1961-62), 71 Yale L.J. 109, the author notes (at p. 116) that 'there is no record of any court [in the United Kingdom and the United States] holding a defendant incompetent to stand trial solely on the basis of amnesia.'

[42] In People of the State of Colorado v. Palmer, supra, at pp. 867-68, Justice Rice wrote:

We are persuaded by the reasoning of the majority of courts that have determined that a defendant's amnesia does not, in and of itself, require a finding of incompetency. . . . . .

. . . amnesia is relevant to the issue of competency, but is only determinative if a defendant suffers a loss of memory so severe that it renders him unable to understand the proceedings against him or to assist in his own defence.

The appellant's ability to communicate: His testimonial competence and fitness to stand trial

[43] Mr. Morrissey does not fall into this latter category. His oral and verbal communication skills are adequate, at least. On Dr. Salmon's assessment he scored in the average range for verbal abilities, verbal memory and visual memory, although he was below average in visual-spatial and academic abilities. According to Dr. Pollock, he was in the low average range for general intelligence, average in verbal intelligence and borderline for non-verbal intelligence. His capacity to understand spoken language and to express himself verbally was relatively unimpaired. While his ability to cope with written material is severely impaired, Dr. Bloom's evidence was that this difficulty [page498] could be overcome through the use of various helping strategies at trial. He is capable of following and recalling basic non-technical language and conversation in the context of a trial.

[44] Therefore, Mr. Morrissey may well be capable of taking the stand, if necessary. He can absorb, understand, recount and respond to oral testimony. He can communicate with counsel. He can tell the court about his background; about his relationship with Ms. Pajkowski and its breakdown; and about the circumstances pre-dating, leading up to, and following the shooting. In short, the appellant can understand the nature and object of the proceedings against him and their potential consequences, and he can communicate with his counsel and assist in his defence.

[45] In R. v. Steele, supra, Fish J.A. (as he then was) articulated what has become the oft-cited common law test for determining whether an accused is capable of conducting his or her defence. At p. 181 C.C.C. he said:

An accused is incapable of conducting the defence, within the meaning of s. 615 [^3] of the Criminal Code, if he or she:

a) cannot distinguish between available pleas;

b) does not understand the nature or purpose of the proceedings, including the respective roles of the judge, jury and counsel;

c) does not understand the personal import of the proceedings;

d) is unable to communicate with counsel, converse with counsel rationally or make critical decisions on counsel's advice; or

e) is unable to take the stand if necessary.

[46] Here, the relevance of Steele is in relation to Mr. Morrissey's ability or inability to take the stand, if necessary. Steele predates Parliament's attempt to codify the common law respecting fitness for trial with the definition of "unfit to stand trial" in s. 2 of the Criminal Code. The case has been cited with favour since the amendments as articulating the common law standard: see, for example, Taylor, supra, at para. 33. However, no authority has yet been required to consider whether, and if so to what extent, the amendment has incorporated the Steele criterion respecting the accused person's ability "to take the stand if necessary". Nor, in my view, is it necessary to do so in this case. For the reasons outlined above, it may well be that Mr. Morrissey is able to take the stand and, as a matter of law, there is a rebuttable [page499] presumption that he is competent to do so. Whether the trial judge erred in declining to make a ruling on that issue because of his refusal to testify is the subject matter of a later portion of this decision. For the reasons set out at that point, I conclude she made no such error.

[47] The only thing the appellant's mental disorder precludes him from doing is providing a reliable account of the events immediately preceding and surrounding the homicide. In this respect, however, he is in no different position than many accused who are unable to relate the circumstances of the crime to the court or to their lawyer because of such frailties as stroke, [^4] self-induced alcohol impairment, [^5] amnesia, [^6] memory loss resulting from physical disease or psychological trauma, [^7] blackout, or simple forgetfulness (a characteristic that afflicts many normal people). As noted above, people in these circumstances are not sheltered from criminal responsibility or exempted from trial as unfit.

[48] I accept for purposes of this appeal that, in a narrow sense, Mr. Morrissey may "lack testimonial competence" in relation to the critical events surrounding the homicide itself because of his inability to communicate the evidence in that regard. In Farley, supra, Justice Doherty reiterated the distinction, drawn in Marquard, between the capacity to perceive, recollect and communicate, on the one hand, and the actual ability to do so with respect to specific events, on the other hand. At p. 450 O.R., p. 81 C.C.C., he added:

A person may have the capacity to perceive, recall and recount and yet be unable to perform one or more of those functions in a given situation. For example, a witness who genuinely has no recollection of the relevant events is not thereby rendered incompetent unless that inability to recall is a reflection of the absence of the capacity to recall. It must also be stressed that the cognitive and communicative components of s. 16(3) set a relatively low threshold for testimonial capacity. Once the capacity to perceive, remember and recount is established, any deficiencies in a particular witness's perception, recollection, or narration go to the weight of that evidence and not the witness's competence to testify: R v. Marquard. (Emphasis added) [page500]

[49] Here, it may be that the appellant's inability to recall the events surrounding the shooting is "a reflection of the absence of the capacity to recall". Dr. Bloom gave the following testimony on cross-examination:

Q. . . . In terms of looking at this, is it fair to suggest that as a result of Peter Morrissey's brain injury and his deficits that he doesn't have the capacity to be reliable by taking the stand?

A. Well he certainly doesn't -- is he capable of being reliable?

Q. Okay, reliable on the issue of the critical event.

A. No I think we have established that he, he is not reliable and I don't think he is capable of being reliable, simply because he doesn't have the recollection.

Q. So would it be fair to say that in that sense, with respect to the issue of the critical event he doesn't have the capacity to give that evidence?

A. I think that's fair. (Emphasis added)

[50] As noted earlier, the trial judge made no specific finding to this effect but she did not reject Dr. Bloom's testimony on this point.

[51] In my view, however, the appellant's incapacity to recall the critical events surrounding the homicide would not, by itself, render him incompetent to testify as a witness at his trial, given his ability to communicate with respect to other matters, as outlined above. From a policy perspective, such a tenet could be problematic: as mentioned above, the inability to recall the critical events surrounding a crime may well be an important feature of an accused person's defence, as an indicator of his or her state of mind.

[52] Here, the trial judge clearly felt it was an open question whether Mr. Morrissey could take the stand. In her ruling dismissing the broader stay application (2003 8150 (ON SC), [2003] O.J. No. 2851, 177 C.C.C. (3d) 428 (S.C.J.)), at para. 32, she said:

Further, it would be conjecture to conclude from the testimony of Dr. Salmon and Dr. Bloom that Mr. Morrissey could not testify. To say that he has absolutely no relevant and reliable information to give is speculative, given the lack of clarity about the extent of his amnesia. (Emphasis added)

[53] However, even assuming that the appellant's inability to recall is incapacity-related, and that he lacks testimonial competence with respect to those events, I am satisfied, for the reasons outlined above, that the lack of such competence is not sufficient, by itself, to require a finding of unfitness to stand trial. [page501]

[54] Mr. Breen relied upon the following comment of Grange J.A. in R. v. McLeod, 1983 3605 (ON CA), [1983] O.J. No. 81, 6 C.C.C. (3d) 29 (C.A.), [^8] at p. 37 C.C.C.:

It seems clear that a co-accused who is not mentally competent to give evidence could not be found fit to stand trial because he would be unable to take the stand to give evidence on his own behalf.

[55] I do not think Justice Grange's comment, which was obiter, is dispositive in these circumstances, however. First, for the reasons outlined above, Mr. Morrissey may well be competent to give evidence in this case. Secondly, the issue before the court in McLeod was procedural, namely, whether counsel for a co-accused should have the right to participate in the cross-examination of witnesses at a fitness hearing. That case did not concern the relationship between testimonial competence and fitness or, in particular -- as this case does -- the problem of whether retrograde amnesia relating to certain specific events necessarily renders an accused unfit to stand trial. For the reasons articulated above, I am satisfied that the retrograde amnesia suffered by Mr. Morrissey did not, of itself, render him unfit to stand trial, and that there was an adequate basis on the record for the jury's finding that he was fit.

[56] In her charge at the fitness hearing, the trial judge instructed the jury as follows:

The third branch specifies: is he unable, on account of mental disorder, to communicate with counsel? The test for this third branch is one of "limited cognitive capacity". The question is whether he can recount to counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence. To that end he must be able to speak with counsel rationally, to understand questions and answer them in an intelligible fashion, and to make critical decisions on counsel's advice, concerning the offence with which he is charged. Amnesia for the events underlying the criminal charge will not, by itself, render an accused "unable to communicate with counsel". For example you can ask yourselves[:] Can Mr. Morrissey understand the evidence that is given by various witnesses so that he can confer with his counsel and give instructions? Does he have the mental capacity to instruct his counsel upon the evidence in order to make full answer and defence to the charge? Is he able to understand advice given by his counsel and to reach a decision as to whether he should or should not testify? Does his mental condition prevent his counsel for [sic] obtaining a factual and truthful account of the event from him? I remind you that amnesia for the events underlining the criminal charge will not, by itself, render an accused "unable to communicate with counsel", and you must consider the questions I have suggested in that context. (Emphasis in original) [page502]

[57] The appellant attacks this portion of the charge as the pivotal point where the trial judge declined to give the instruction that testimonial competence is a pre-condition to a finding of fitness for trial.

[58] I see no error in these instructions. Although I have earlier expressed some reservations about reducing the limited cognitive capacity test to an inquiry into whether the accused can recount to counsel the immediate facts relating to the offence, the trial judge's instructions in this regard -- if understood in that fashion -- would not have adversely affected the appellant's position. The trial judge did not tell the jurors that Mr. Morrissey's testimonial capacity to relate the critical events surrounding the shooting was a condition precedent to his fitness for trial, and instruct them on the elements of testimonial competence pursuant to s. 16 of the Canada Evidence Act. She made it clear, however, that the jury should reflect upon such factors as (a) his ability to understand the evidence and confer with counsel in that regard, (b) his ability to instruct counsel, (c) his ability to understand advice and decide whether or not to testify, and (d) his ability to provide his counsel with a factual and truthful account of the event. Accordingly, in the context of considering the appellant's ability to recount the necessary facts relating to the offence, generally, in order to permit counsel to present a defence, the jury was instructed to consider his ability to provide counsel with a factual and truthful account of the event, although not to treat the appellant's ability in this latter respect as a condition precedent to his fitness to stand trial. On this basis, the jury decided that Mr. Morrissey was fit.

[59] For the reasons outlined above, there was no legal impediment to that decision. B. The incompetency application

[60] The appellant's second ground of appeal is raised in the context of his unsuccessful Incompetency Application. Mr. Breen does not attack the refusal to grant the application on general grounds. Rather, he makes the single submission that the trial judge erred in holding that the appellant was required to testify as a pre-condition to her ruling on Mr. Morrissey's testimonial capacity in connection with the application.

[61] I would not give effect to this ground of appeal.

[62] The need for the trial judge to rule on the appellant's testimonial capacity arose because the ground for the application -- based on an alleged breach of s. 11(d) and/or s. 7 of the Charter -- [page503] was that Mr. Morrissey was incompetent to testify at trial and that this incompetence offended his constitutional right to testify in his own defence in order to make full answer and defence. Relying on the decision of the Supreme Court of Canada in R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178, [2001] S.C.J. No. 4, the trial judge held -- quite properly, in my view -- that it was necessary for her to hear from Mr. Morrissey himself, if he was to meet the onus on him, and to arrive at her own opinion, without simply accepting the expert testimony, as to his competence or incompetence to testify.

[63] In Parrot the accused was charged with offences committed against a woman who suffered from Down's syndrome and who had the mental development of a three or four-year-old child. The Crown took the position that the complainant had a mental disability and that she was not "able to communicate" within the meaning of s. 16 of the Canada Evidence Act. It sought to have her out-of-court statements admitted for the truth of their contents. At a hearing to determine the complainant's testimonial competence the Crown declined to call the complainant, relying completely, instead, on the evidence of experts who testified as to her frailties and abilities as a potential witness. The trial judge accepted the expert opinion and ruled that the complainant lacked testimonial capacity.

[64] The Supreme Court held that this procedure was wrong and that the trial judge had erred in failing to hear from the complainant and to reach his own opinion as to her testimonial competence. Writing for the majority, Binnie J. concluded that the trial judge should not have admitted the expert evidence on the voir dire because "[t]rial judges are eminently qualified to assess the testimonial competence of a witness" (para. 52). Referring to the requirement under s. 16 that a witness be "able to communicate the evidence", he wrote as follows (paras. 57-58):

Whether a complainant "is able to communicate the evidence" in this broad sense is a matter on which a trial judge can (and invariably does) form his or her own opinion. It is not a matter 'outside the experience and knowledge of a judge or jury' (Mohan [1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36 89 C.C.C. (3d) 402] . . . at p. 23). It is the very meat and potatoes of a trial court's existence.

Mohan required a demonstration of practical necessity as a precondition to reception of expert evidence because of the concern "that experts not be permitted to usurp the functions of the trier of fact" (p. 24). In my view, it was the trial judge not [the expert] who was familiar with the exigencies of a criminal trial and who had the expertise to determine what testimonial assistance the complainant might be able to offer in that context. His decision ought to have been based on direct observations of the complainant, [page504] unless excused by evidence that she would be traumatized by an appearance in court even for that limited purpose, or other exceptional circumstances. (Emphasis added)

[65] There were no other circumstances excusing the Crown from calling the complainant in Parrott, and none is raised here. In her ruling the trial judge correctly concluded:

Mr. Fleming has challenged the mental capacity of Mr. Morrissey as a proposed witness. Given the majority decision in R. v. Parrott, I am unable to accept the submission that I should decide whether Mr. Morrissey is competent based on the evidence of the experts at the fitness hearing and the related written material. In order for that challenge to be decided, the inquiry described in Parrot is necessary. I, of course, cannot require Mr. Morrissey to testify, nor can the Crown. However, if the defence wishes to proceed with this Charter application, on which it bears the onus on a balance of probabilities, it will be necessary for me to hear from Mr. Morrissey so that I can make the direct observations referred to in Parrot. There is no suggestion that Mr. Morrissey would be traumatized or otherwise suffer adverse consequences from a s. 16 inquiry. It will be up to the defence to determine how it wishes to proceed, in light of this Ruling.

[66] The defence declined to call Mr. Morrissey. The Incompetency Application was dismissed.

[67] Mr. Breen seeks to distinguish Parrott on the basis that the claim for incompetence in that case was founded upon a present inability to communicate, rather than on any cognitive incapacity. Here, the argument is that the appellant lacks the capacity to communicate the critical events surrounding the homicide and that this incapacity can only be established by the expert evidence. There was nothing Mr. Morrissey could have added to that discussion, he contends.

[68] I agree that there may be a distinction between the foundation for the communicative difficulties of the complainant in Parrot, and the appellant in this case. In my view, however, it does not detract from the general proposition articulated by the Supreme Court of Canada that on a s. 16 inquiry the potential witness should normally be called to testify, thus enabling the trial judge to base his or her decision on direct observations of the potential witness as well as other evidence. As McLachlin J. noted in Marquard (p. 236 S.C.R., p. 219 C.C.C.):

Generally speaking, the best gauge of capacity is the witness's performance at the time of trial. The procedure at common law has generally been to allow a witness who demonstrates capacity to testify at trial to testify. (Emphasis added)

[69] Here, there was no indication that Mr. Morrissey would have been traumatized or otherwise adversely affected by testifying at the competency inquiry. No argument was made that the appellant [page505] was entitled to rely upon his right to be protected against self-incrimination. [^9] As outlined above, he had the ability to understand oral communications and to communicate orally. He could recall events at least up to the day of the incident, and thereafter.

[70] The trial judge was aptly positioned to weigh these factors, along with the evidence about the appellant's brain injury-induced amnesia and his tendency to confabulate. Without his presence in the witness box, however, she was deprived of the opportunity to assess Mr. Morrissey based on her own "direct observations" -- to engage in "the very meat and potatoes" of her work as a trial judge, to reiterate Justice Binnie's words in Parrott -- in order to come to her own conclusion as to his testimonial capacity. She correctly declined to make the ruling on testimonial capacity without having that opportunity.

Full Answer and Defence

[71] Nor did the trial judge err in finding no violation of the appellant's s. 7 Charter right to make full answer and defence. While this issue was not pursued by Mr. Breen in oral argument, the violation of s. 7 was raised as a ground of appeal. In R. v. Rose, 1998 768 (SCC), [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, 129 C.C.C. (3d) 449, at paras. 102-103, the Supreme Court described two discrete aspects to the s. 7 right to make full answer and defence:

One aspect is the right of the accused to have before him or her the full "case to meet" before answering the Crown's case by adducing defence evidence . . . A second and broader aspect of the right . . . is the right of an accused person to defend himself or herself against all of the state's efforts to achieve a conviction. The Crown is not entitled to engage in activities aimed at convicting an accused unless that accused is permitted to defend against those state acts.

[72] In the present case, the appellant had the opportunity to defend himself against all of the Crown's efforts to obtain a conviction. The trial judge correctly noted in her ruling on the broader stay application (2003 8150 (ON SC), [2003] O.J. No. 2851, 177 C.C.C. (3d) 428 (S.C.J.), at para. 27) that the appellant was able to cross-examine Crown witnesses, to call defence witnesses, and even to adduce evidence to support the theory that the shooting was unintentional. The appellant could have taken the stand to testify on the Incompetency Application; he ultimately chose not to. [page506]

[73] While it is likely that the appellant's brain injury and ensuing retrograde amnesia had some impact on the manner in which he was able to conduct his defence, they have not so interfered with his ability to defend himself that it can be said that he was denied his constitutional right to make full answer and defence. As the trial judge noted -- drawing upon the statement of La Forest J. in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62, 37 C.C.C. (3d) 1 at p. 46 C.C.C. -- "s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him/her to the most favourable procedures that could possibly be imagined": see also R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 139 C.C.C. (3d) 321, at para. 72; and Rose, supra, at para. 99.

[74] In Mills, moreover, at para. 72, the Supreme Court recognized that the content of the constitutional right to make full answer and defence is informed by interests beyond simply those of the accused:

[T]he principles of fundamental justice do not entitle the accused to "the most favourable procedures that could possibly be imagined". This is because fundamental justice embraces more than the rights of the accused. For example, this Court has held that an assessment of the fairness of the trial process must be made "from the point of view of fairness in the eyes of the community and the complainant" and not just the accused: R. v. E. (A.W.), 1993 65 (SCC), [1993] 3 S.C.R. 155, per Cory J., at p. 198 . . . The ability to make full answer and defence, as a principle of fundamental justice, must therefore be understood in light of other principles of fundamental justice which may embrace interests and perspectives beyond those of the accused. (Emphasis added; some citations omitted)

[75] There are strong policy reasons for concluding that a claim of memory loss respecting the critical events in question, by itself, ought not to provide the foundation for a stay of proceedings -- regardless of the cause of that disability. For one thing, such a loss of memory is a prevalent claim (30-40 per cent of people charged with a violent crime, perhaps more, claim to be affected by amnesia in relation to the crime). [^10] For another, it is an easy claim to make and a difficult one to disprove: see R. v. H. (L.J.), supra, at p. 89 C.C.C. If a claim of amnesia is available to support an abuse of process application under the Charter in cases such as this, it could lead to many cases being stayed in a manner that is not in the public interest. I agree completely with, and adopt, the following statement by Justice Fuerst in her ruling on the broader stay application (2003 8150 (ON SC), [2003] O.J. No. 2851, 177 C.C.C. (3d) 428 (S.C.J.), at para. 34): [page507]

In fact, Dr. Bloom testified that amnesia is a feature of a very substantial percentage of cases of accused persons charged with violent crimes. He indicated that 30 to 40 per cent of people charged with crimes of violence claim amnesia. Similarly, in R v. Stone . . . , [^11] the Crown's expert witness testified at trial that up to 50 per cent of people charged with serious crimes report that they do not remember the incident. If Mr. Fleming's submission were correct, a large number of accused persons would be entitled to claim exemption from prosecution on constitutional grounds, because of lack of memory. I am unable to conclude that the Charter's fair trial rights are this far-ranging. As has been pointed out, the amnesiac's loss of memory differs only in degree from that experienced by other persons not suffering from amnesia: see United States v. Stevens, 461 F. 2d 317 (1972), quoted in R. v. Majid, [^12] at para. 34 [p. 170]. Disposition

[76] For the foregoing reasons, I would not give effect to the grounds of appeal raised on behalf of Mr. Morrissey. I would therefore dismiss the appeal.

Appeal dismissed.

[^1]: The Jeep came to a stop after swerving into the oncoming lane of traffic and striking another vehicle head on. Fortunately, the other driver was not seriously injured in that collision.

[^2]: Certain commentaries have reflected the same theme. See, for example, Martin's Annual Criminal Code (Aurora, Ont.: Canada Law Book, 2007), at p. 1218; D. Watt and M. Fuerst, Tremeear's Criminal Code (Toronto: Thomson Carswell, 2008), at p. 15. Barrett and Shandler, supra, at p. 3-7; Edwin A. Tollefson and Bernard Starkman, Mental Disorder in Criminal Proceedings (Toronto: Thomson Carswell, 1993) at p. 42.

[^3]: The predecessor provision to the current ss. 672.22 and 672.23 and the definition of "unfit to stand trial" in s. 2.

[^4]: R. v. L.J.H., supra.

[^5]: R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, [1994] S.C.J. No. 77, 93 C.C.C. (3d) 21.

[^6]: R. v. Lowe, supra; R. v. Boylen (1972), 1972 2256 (NS PC), 18 C.R.N.S. 273 (N.S. Mag. Ct.).

[^7]: R. v. Majid, 1997 11320 (SK QB), [1997] S.J. No. 507, 119 C.C.C. (3d) 161 (Q.B.); R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27, 134 C.C.C. (3d) 353.

[^8]: Affirmed 1986 70 (SCC), [1986] 1 S.C.R. 703, [1986] S.C.J. No. 32, 27 C.C.C. (3d) 383.

[^9]: Whether the potential of a prior inconsistent statement on the voir dire being used against the accused, in such circumstances, in order to impugn his or her credibility (although it could not be used to establish culpability) -- see R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, [2000] S.C.J. No. 46, at paras. 66-67 -- infringes that right, need not be considered, therefore.

[^10]: This statistic is found in the reasons of the trial judge on the broader stay application: 2003 8150 (ON SC), [2003] O.J. No. 2851, 177 C.C.C. (3d) 428 (S.C.J.), at para. 34.

[^11]: 1999 688 (SCC), [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27, 134 C.C.C. (3d) 353.

[^12]: 1997 11320 (SK QB), [1997] S.J. No. 507, 119 C.C.C. (3d) 161 (Q.B.).