Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220603 DOCKET: C69998

Doherty, Huscroft and George JJ.A.

IN THE MATTER OF: DARCY PICHETTE

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel: Russell Browne, for the appellant Natalya Odorico, for the respondent Her Majesty the Queen Julia Lefebvre, for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Heard: May 27, 2022 by video conference

On appeal from the disposition of the Ontario Review Board, dated October 5, 2021, with reasons dated October 25, 2021.

Doherty J.A.:

[1] The appellant was charged with several offences, including criminal harassment, uttering threats, and various allegations of failing to comply with court orders.

[2] On August 10, 2021, the appellant was found unfit to stand trial by a judge of the Ontario Court of Justice. That judge declined to make a disposition and ordered the appellant held in custody at Waypoint Centre for Mental Health Care (“Waypoint”) pending a disposition hearing before the Ontario Review Board (“ORB”).

[3] The ORB held a hearing on September 22, 2021. By disposition, dated October 5, 2021, the ORB determined that the appellant was unfit to stand trial. The Board ordered the appellant detained at Waypoint on various conditions.

[4] The appellant submits the ORB erred in holding that he was not fit to stand trial. The appellant claims that he is fit and asks that the matter be returned to the Ontario Court of Justice for a determination of that issue.

[5] The appeal raises two questions:

• Does this court have jurisdiction to hear an appeal from the ORB’s determination that the appellant is unfit to stand trial?
• If this court has jurisdiction, did the ORB err in holding the appellant was unfit?

The Jurisdiction to Hear the Appeal

[6] Counsel for the appellant and the Crown agree that this court has jurisdiction to hear an appeal from the ORB’s finding of unfitness. Counsel point out that, while this court has held there is no appeal to this court from the ORB’s finding that an accused is fit to stand trial, there are valid reasons in the applicable statutory provisions to distinguish, for appeal purposes, between a finding of fitness and a finding of unfitness. I agree with the position taken by counsel.

[7] Section 672.47 of the Criminal Code requires the ORB to hold a hearing and make a disposition when the court makes a finding that an accused is unfit to stand trial, but does not proceed to make any disposition based on that finding. That is what happened here. The judge of the Ontario Court of Justice made a finding of unfitness, but left it to the ORB to determine the appropriate disposition.

[8] When the ORB holds hearings pursuant to s. 672.47, it will first determine whether the accused remains unfit to stand trial as of the time of the hearing before the ORB. If the ORB decides the accused is fit, the ORB must order the accused returned to the trial court, where the court will try the issue of fitness and render a verdict. If the ORB is satisfied the accused is fit, it orders the accused returned to the trial court, but does not make any disposition beyond that order: s. 672.48(2).

[9] If, however, the ORB decides the accused is unfit, it must make a disposition: s. 672.47. The possible dispositions are set out in s. 672.54. They include, for example, detention in the named facility.

[10] “Disposition” is a defined term in Part XX.1: s. 672.1. Dispositions include dispositions made under s. 672.54. An accused has a right of appeal from a disposition made by the ORB under s. 672.72.

[11] If the ORB determines that an accused is fit to stand trial and orders the accused returned to the trial court for a determination of that issue, the ORB does not make any disposition. Consequently, there is no appeal from that order under Part XX.1: see R. v. Paré (2001), 159 C.C.C. (3d) 222 (Ont. C.A.). There is an appeal under Part XXI of the Criminal Code from whatever order the trial judge may make on the fitness issue.

[12] If the ORB concludes the accused is unfit, the ORB does make a disposition under Part XX.1. That disposition is appealable to the Court of Appeal pursuant to s. 672.72.

[13] On an appeal from a disposition made following a finding of unfitness, the accused can challenge the finding of unfitness. If the finding of unfitness was improperly made, then no disposition should have been made. The correctness of the finding of unfitness is, therefore, properly challengeable in the context of an appeal from the disposition made following the finding of unfitness.

[14] The appeal is properly before this court.

The Merits of the Appeal

[15] The appellant suffers from schizophrenia and continuous Cannabis Use Disorder – Severe. He has a long difficult mental health history. The appellant has had numerous encounters with the criminal justice system. In 2012, he was found unfit to stand trial.

[16] The present charges arise out of a series of events that occurred between May and November 2020. The appellant has been at Waypoint since May 2021. His condition has varied during that time period. When admitted, he was “grossly psychotic”. By August 8, 2021, Dr. Bunker assessed the appellant as “likely fit to stand trial”. Two days later, when the appellant actually appeared in the Ontario Court of Justice, the trial judge concluded the appellant was unfit and remanded the matter to the ORB. In September 2021, Dr. Bunker prepared a further report in which she indicated the appellant was “likely unfit to stand trial”. That was her opinion at the hearing before the Review Board on September 22, 2021.

[17] On the fitness inquiry, the ORB focused mainly on whether the appellant had the ability to communicate with counsel. In its reasons, the ORB acknowledged that the appellant’s fitness was in “a fluid state”. The ORB considered the various assessments that had been done in the preceding months and also transcripts of the appellant’s appearances in the Ontario Court of Justice. The Board understood that the appellant’s ability to understand proceedings and communicate with counsel tended to worsen in the context of ongoing courtroom proceedings. The ORB also acknowledged that Mr. Browne, the appellant’s counsel, had represented to the ORB that he had been able to communicate with the appellant in respect of the proceedings.

[18] As I read the reasons, the ORB took into account counsel’s representation as to the appellant’s fitness. The ORB did, however, point out that apart from counsel’s representation, it had seen no demonstration of the relationship between Mr. Browne and the appellant which would support Mr. Browne’s representation. The appellant did not testify and no questions were directed to the appellant by the Board.

[19] Ultimately, the ORB relied on the assessments done by Dr. Bunker, the hospital report, and the transcript of an earlier proceeding in the Ontario Court of Justice to conclude that the appellant was unfit to stand trial.

[20] Mr. Browne argues that the finding is unreasonable. In his submission, the Board should have given more weight to his representation as to his client’s fitness, particularly in light of the vacillating nature of Dr. Bunker’s opinion.

[21] The decision of the ORB is not unreasonable. It was for the ORB to decide how much weight to give to the psychiatric assessments, and how much weight to give to the lawyer’s representation as to his client’s ability to instruct counsel. The court has not been provided with any basis upon which it could interfere with the ORB’s assessment.

[22] The ORB clearly hoped that the appellant might be fit by some point in the near future. That has apparently not happened. We know nothing of any changes or developments in the appellant’s condition since last September. His annual review is scheduled for October 2022.

[23] The appeal is dismissed.

Released: June 3, 2022 Doherty J.A. I agree Grant Huscroft J.A. I agree. J. George J.A.