Court Information
Ontario Court of Justice
Date: 2016-06-14
Court File No.: Central East - Newmarket 4911-999-15-90001032-00
Parties
Between:
Her Majesty the Queen
— AND —
Sharon Dudley
Before the Court
Before: Justice P.N. Bourque
Heard on: June 14, 2016
Reasons for Ruling on Application
Section 44 of the Ontario Provincial Offences Act
Released on June 14, 2016
Counsel
W. Barnes — counsel for the prosecution
A. Katz — Amicus Curiae
Decision
BOURQUE J.:
Overview
[1] The defendant is being prosecuted under Section 2(1) of the Compulsory Automobile Insurance Act and Section 3(1)(c)(i) of the Highway Traffic Act.
[2] The trial commenced before Justice of the Peace Forrest, on December 17, 2015. The defendant was unrepresented by counsel and remains unrepresented at that trial. During the cross-examination of the investigating officer the defendant had greater difficulty focusing on the officer's evidence. The presiding Justice of the Peace had to intervene more and more. After the evidence was complete and the Crown's case closed the Justice of the Peace had a conversation with the defendant about whether she should testify. She eventually testified and stated that this charge was dismissed on a previous occasion (November 17, 2014) and the Justice of the Peace explained that was a previous charge, not the one she was now facing.
[3] The Crown did not cross-examine. Forrest, J. asked if Ms. Dudley had said all she wanted to say. Ms. Dudley said "Your Honour, I said everything. I thought it was a short issue of not being able to get out of the car. I've said a lot. It's a major financial industry."
[4] The Justice of the Peace explained to the defendant that she would be referring the matter to a Provincial Judge to assess whether she had the capacity to conduct her defence. The defendant made the following further statements:
Your Honour, in failing which did the level of information not appear logical. There's no fault insurance. Neither driver nor car is insured now. That's the system but it's not my issue. Used cars have never been insured. …Your Honour, to make myself clear, the police may have melted the machines and they couldn't deliver to Service Ontario the machines because it would lead to defacing the Ontario License Plate and that would be something illegal. And that's also a personal opinion and I'm a person.
The Crown's Position
[5] In its Factum provided to the court the Crown took no final position on the issue of whether the defendant was capable of conducting her own defence. In final oral submissions the Crown accepted the medical evidence, which I will refer to below.
The Defendant's Position
[6] The defendant was not represented by counsel. I spoke to the defendant in court on the several appearances she made before me. She was always respectful and responded when I asked her questions, although she would not always answer my inquiries. She spoke in a fashion similar to the quotations above. While she seemed to understand that the charge involved car insurance, she rambled on about issues which were obviously fanciful and not related to any conceivable issues at trial.
The Standard of Proof
[7] As stated in Real Estate Council of Ontario v. Kuan Chua, 2013 ONCJ 251, the statement of the legal principles and the standard of proof are 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.
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.
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".
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.
- 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
[8] The defendant was referred by the court to Dr. Alina Iosif at CAMH for an assessment. Dr. Iosif of CAMH provided an 8 page report dated April 13, 2016. The doctor had the following sources of information:
- Synopsis of the charge
- Handwritten notes of Ms. Dudley in a notebook
- Factum prepared by the Crown
- Criminal Record (none)
[9] The report is admittedly limited by the fact that Ms. Dudley refused to provide any further information about her past medical history, and provided no consents for the doctor to obtain any other medical information about the defendant.
[10] In fact, it was clearly the nature of the interview and how Ms. Dudley conducted herself which was the main source of information upon which the doctor could base her opinion.
[11] As stated on Page 2 of the report:
The interview, as noted above, was characterized by Ms. Dudley refusing to answer any of the questions. This started with the first question posed to her, namely her age, to which Ms. Dudley replied, very cautiously, "Are you allowed to ask about that, I thought no one is allowed to ask about age. I'm going to say it's not important in the case before the court." She then refused to answer all other questions pertinent to identifying her. Such as to say where she lived, if she lived with anyone, if she had children or was married, what her source of income was, if she had worked, whether she was retired, whether she was a Canadian citizen etc.
[12] Notwithstanding the several attempts to inform Ms. Dudley of the nature of the interview, she did not seem to understand and spoke about tangential issues. In addition she refused to answer any questions about her life or mental health history. She answered several times to the doctor's questions that she did not think the question was "important to the case." She refused to answer any questions put to her by way of a "mini-mental status examination."
[13] When she did respond to any questions, her answers lacked coherence and nothing of what she said would be relevant to her case in court. She made references to speaking with the prosecutor, that there is a "major fraud in the insurance industry," that "used cars has never been allowed in this country," and "there is a library in England…."
[14] The doctor noted that her affect was reserved with a note of underlying hostility toward the interviewer. She would occasionally burst into inappropriate laughter. She was however very neat in her appearance and appeared to be a woman in her mid-sixties to early seventies. She made eye contact and maintained a very prim and proper demeanour, but she was mildly irritable and obviously dismissive and hostile.
[15] Upon review of the notes that Ms. Dudley brought with her to the interview, the doctor noted that while her notes were in "well-formed handwriting," the same themes were in the notes and were "disorganized with no logical connection."
[16] The doctor was of the view that she was "disorganized, rigid in her thought form, unable to conduct a meaningful dialogue, or respond to redirection while in court." This was similar to her responses in her interview.
[17] The doctor was unable to make any formal diagnosis but believed she suffered from a psychotic disorder. The most appropriate diagnosis that could be made was a "psychotic disorder not otherwise specified." The cause could be organic or metabolic. The doctor felt there could be a major mental illness including schizophrenia or irritable hypomania.
[18] At page 6 of the report the doctor comes to the following conclusions:
Ms. Dudley is presently entirely unable to answer fitness-related questions. It is readily apparent that she is extremely disorganized in her thought form, and her ability to focus on matters at hand is impaired. From a psychiatric perspective, her presentation renders her, likely due to a mental condition (see below), grossly incapable of participating meaningfully in legal proceedings at this juncture, instruct counsel, or assist in her own defense. As such, Ms. Dudley presents as unfit to stand trial at this juncture.
Conclusion
[19] I make a finding on the balance of probabilities that the defendant is unfit to stand trial in the sense that she 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 her inability to conduct her defence are in my opinion causally connected.
[20] 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 Forrest.
Released: June 14, 2016
Signed: Justice P.N. Bourque