Court File and Parties

Court File No.: Central East – Newmarket – 13-01402 Date: 2015-09-10 Ontario Court of Justice

Between: Her Majesty the Queen — and — Laith Hanna

Before: Justice P.N. Bourque

Counsel:

• R. Boswell, for the Crown
• A. Katz (amicus), for the defendant Laith Hanna

Ruling on Application

Section 44 of the Ontario Provincial Offences Act

Released on September 10, 2015

Overview

[1] The defendant is being prosecuted under section 149(2) of the Workplace Safety and Insurance Act (the "Act") (1997). The Crown alleges that he willfully failed to inform the Workplace Safety and Insurance Board ("WSIB") of a material change in circumstances in connection with his entitlement to benefits under the Act.

[2] The defendant had suffered a workplace accident on January 23, 2006. The accident consisted of a right temporal bone fracture as a result of a steel bar striking him on the head. He applied for and received benefits under the Workplace Safety Insurance scheme, which included income replacement. The board made certain awards of benefits which were contested by the employer. The matter proceeded through several levels of appeal. The employer eventually prevailed and except for a very short period immediately following the accident, all of the benefits were denied, and by the time the final decision was made, the defendant was subject to a potential repayment of over half-million dollars.

[3] The trial commenced before Justice of the Peace Mews on March 10, 2015. The defendant was unrepresented by counsel and remained unrepresented at that trial. The trial continued for several days and the Crown closed its case on March 16, 2015. On March 23, 2015, the presiding Justice remanded the matter to a Provincial Court Judge after she became concerned about the mental state of the defendant. I do not have a report from the Justice but I have a statement in the Crown's factum which relates the following:

...while still in the courtroom and in the presence of Crown Counsel the courtroom clerk and the Arabic interpreter, the Defendant began to sob. This continued for about five minutes after which Justice Mews returned to the courtroom having been made aware by the courtroom clerk of what had transpired in her absence. Justice Mews, following an attempt to address the Defendant about his ability to continue, decided to take a recess to allow for the Defendant's wife to return to the courthouse to assist her husband…

The Defendant's wife arrived at the courthouse shortly after 1:00 p.m. She assisted the Defendant to return to the courtroom but proceeded ahead of him into the courtroom. On his return (he) walked into the courtroom (he) collapsed and struck his head on the hallway floor. An ambulance was called and he was taken to the hospital accompanied by his wife.

[4] Following this incident, Justice Mews decided that it was appropriate to refer the matter of the defendant's fitness to stand trial to this Court pursuant to Section 44 of the Provincial Offences Act ("POA").

The Crown's Position

[5] The Crown is of the view that the defendant is fit to stand trial. It relies upon the report of Dr. Jeffries dated October 26, 2012, who describes the defendant as a "malingerer". After reviewing the report of Dr. Iosif dated June 25, 2015, the Crown still insisted that the defendant could be found fit to stand trial and points to the words of Dr. Iosif on Page 10 where the doctor states: "From a psychiatric perspective, whether Mr. Hanna is fit to stand trial depends largely if not solely - on his diagnosis, specifically whether he suffers from Conversion Disorder or is malingering".

The Defendant's Position

[6] The defendant was not represented by counsel. In the several brief court appearances before me the defendant made several statements about his condition. He did not respond to my questions about his condition or about what position he wished to take. He sometimes spoke of his continuing injury and the failure of anyone to respond to it. He spoke to this court in English although he had an Arabic interpreter throughout.

[7] By the time the court obtained a psychiatric report, the court felt the need to seek some assistance of counsel, as the defendant clearly was not in a position to argue this matter. I appointed Abba Katz to appear as amicus to assist the court and make submissions. Amicus advocated the acceptance of the report of Dr. Iosif and the conclusions in that report that the defendant was unfit to stand trial.

The Standard of Proof

[8] I am indebted to my brother Justice Nakatsuru in his decision in Real Estate Council of Ontario v. Kuan Chua, 2013 ONCJ 251. I accept his statement of the legal principals and the standard of proof. I will paraphrase Nakatsuru J. as follows: The test is set out in Section 44(3) of the POA and provides that where the judge finds that the defendant is, because of mental disorder, unable to conduct his defence, the judge shall order that the proceeding remain suspended, and where the judge finds that the defendant is able to conduct his or her defence, the judge shall order that the suspended proceeding be continued.

[9] The "mental disorder" is not defined in the "POA" and it is appropriate to use the same test under the provisions of the Criminal Code and thus the court must inquire to ensure that the accused is able to meaningfully participate in the trial process.

[10] There is a presumption that a defendant is fit to stand trial unless the court is satisfied on the balance of probabilities that he is unfit. That would probably put the burden of establishing unfitness upon the defendant, even if he is not strictly speaking the "applicant".

[11] Unfit to stand trial is the same as that in section 2 of the Criminal Code and is ". . . .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, understand the nature or object of the proceedings, understand the possible consequences of the proceedings or communicate with counsel".

[12] The test is the limited cognitive ability test. It is not a high threshold. It is not necessary that the defendant be capable of acting in his best interests. Failure of memory of the events in question does not render him unfit. The existence of the mental disorder and the incapacity to conduct a defence exist together and must be causally related.

The Evidence: Psychiatric Reports

[13] The defendant was referred by the court to Dr. Alina Iosif at the Centre for Addiction and Mental Health ("CAMH") for an assessment. This referral is somewhat unusual as in the usual course, the Crown Attorney makes the arrangement for an assessment. In our case, the WSIB represented the Crown. Through their counsel they advised the court that CAMH refused to provide an assessment as this was not a prosecution under the Criminal Code. Counsel advised that any other option would require a private referral and WSIB refused to pay for any referral. It was therefore left to the court to arrange and pay for the referral.

[14] Dr. Iosif of CAMH provided a 12 page report dated June 24, 2015. The doctor had the following sources of information:

(a) Synopsis of the case as prepared by counsel for WSIB;

(b) Letter dated June 12, 2013 from Dr. Jerry Cooper;

(c) Letter authored by defendant's family physician, Martin Simonik;

(d) Form detailing non-economic loss evaluation dated October 31, 2011;

(e) Letter from Dr. Samuel Silverberg dated July 17, 2013;

(f) Contents of defendant's CAMH record.

[15] The report is extensive and covers over 11 pages. The doctor presents her psychiatric diagnosis in three pages. The doctor is of the opinion that Mr. Hanna suffers from a "conversion disorder" which is defined as a condition where "the sufferer "converts" psychological factors into physical symptoms". She continues: ". . . is an individual, like Mr. Hanna, with little education, little ability to express emotions, history of trauma, and a subsequent neurological injury. Conversion disorder appears to be more common in immigrant populations, especially from the Middle East and Central Asia, and likely has some cultural roots (insofar as physical symptoms are more acceptable than psychological ones in certain societies), but is probably also related to such issues as immigration, isolation, limited finances, and limited ability to express due to language barriers and interpersonal differences".

[16] The doctor also notes: "It is important to note within this diagnosis, that symptoms are not intentionally produced, yet also do not follow a predictable medical course, since they are not generated by organic lesions. Therefore, the fluctuations in function and unexpected moments of "recovery", are intrinsic to the diagnosis, and in fact represent one of the ways the diagnosis is made".

[17] The doctor notes that Mr. Hanna clearly suffered Chronic Post-Traumatic Stress Disorder from his experiences in the Iran/Iraq war and "there is no reason to believe that this condition has somehow remitted in the past decade, especially in the absence of treatment for same". The doctor also states that "while Mr. Hanna's symptoms may be psychologically produced, with little or no organic basis, they are no less disabling because of that. His distress and impairment are real, and should not be considered to be "feigned" just because of the lack of anatomical correlation".

[18] Ultimately, Dr. Iosif finds that Mr. Hanna "suffers from severe symptoms of conversion disorder, impacting both his cognitive and his physical function. Mr. Hanna is, from a psychiatric perspective based on the aforenoted difficulties, unfit to stand trial".

[19] Both counsel for the Crown and the amicus did not wish to have the opportunity to cross-examine Dr. Iosif on her report, nor did they wish to call further evidence.

[20] I did, however, review the report of Dr. Jeffries which was prepared on October 26, 2012. The report is not directed to the issue of fitness to stand trial. The doctor was asked to review surveillance video and previous reports. He came to the conclusion that Mr. Hanna was "malingering". I note however that he agrees with Dr. Iosif's diagnosis of either somatoform complaints or conversion symptoms, and probably both. The report spends a lot of time (and places a lot of weight) upon the secret surveillance footage taken of the defendant doing various things in public including driving a car and sitting and talking with friends. There is no audio. It still confirms that Mr. Hanna has a limp. It shows contrasts to the physical symptoms of Mr. Hanna. It is difficult how much can be made of his psychiatric condition, on anything other than a superficial basis.

[21] I find that I am not able to give a great deal of weight to Dr. Jeffries' report, for many reasons, including its dated nature, and the fact that he was not assessing a fitness issue. I believe that Dr. Iosif has considered the issue of malingering in her report. I believe that she has rejected it from a psychiatric viewpoint. She states: "In my reading of the file, I have found no evidence that Mr. Hanna is feigning his disability, and the fluctuations in function, which appeared to have led to the 2012 diagnosis of malingering, are inherent to a diagnosis of somatoform disorders, including conversion disorder".

[22] In addition to the expert opinions that I refer to, I must add that in my interactions with Mr. Hanna (I realize that they were not under oath) I had the impression of a man who is tormented to such an extent that it would be hard to believe that it is the product of an intention to deceive. I have no other real evidence to consider in this matter and I am prepared to accept the conclusion of Dr. Iosif.

Conclusion

[23] I make a finding on the balance of probabilities that Laith Hanna is unfit to stand trial in the sense that he is unable to understand the nature or object of the proceedings, is unable to understand the possible consequences of the proceedings and is unable to have functional communication with counsel. The existence of this mental disorder and his inability to conduct his defence are in my opinion causally connected.

[24] I therefore make an order under section 44(3) of the Provincial Offences Act that the proceedings remain suspended. This order will be communicated to Justice of the Peace Mews.

Signed: Justice P.N. Bourque

Released: September 10, 2015