Court Information

Ontario Court of Justice

Date: 2016-06-23

Court File No.: Toronto, 4860 999 12 214839 00

Parties

Between:

Her Majesty the Queen

— and —

Selvamenan Kathirkamapillai

Before the Court

Justice Beverly A. Brown

Heard on: April 5, May 10 and 31, 2016

Reasons for Judgment released on: June 23, 2016

Counsel

Mr. Jeffrey S. Clarke — counsel for the Prosecutor

Mr. Raja Kanaga — paralegal for the accused

BROWN, B., J.:

Introduction

[1] Mr. Selvamenan Kathirkamapillai was charged with Failure to report a material change in connection with entitlement to benefits within 10 days of the change, contrary to s. 149(2) of the Workplace Safety & Insurance Act, 1997, S.O. 1997, c.16. After a trial, he was acquitted. The prosecutor, counsel for the Workplace Safety and Insurance Board, brought an appeal of the acquittal in Provincial Offences Court, and the appeal was allowed on May 4, 2015. A new trial was ordered. The case was first before the Provincial Offence trial court for a re-trial on Aug. 7, 2015. It was remanded to Nov. 27, 2015, and then Jan. 22, 2016, at which time the matter of fitness of Mr. Selvamenan Kathirkamapillai was raised by the agent representing the defendant.

[2] On Jan. 22, 2016, prior to the re-trial, the case was referred to this court, to be heard by a justice of the Ontario Court of Justice, to consider the issue of fitness that had been raised by the agent for Mr. Selvamenan Kathirkamapillai. The agent for the defendant brought an application to suspend the prosecution of Mr. Selvamenan Kathirkamapillai on the basis of his position that his client is unable to conduct his defence. This application was brought pursuant to s. 44 of the Provincial Offences Act.

[3] This court remanded the case from time to time, until it was put before me as the judge. It was before me on March 7, and subsequent dates for receipt of evidence and for argument.

Relevant Law

[4] The Workplace Safety & Insurance Act, 1997, S.O. 1997, c. 16, Schedule A, provides in s. 149 the following:

149(1) A person who knowingly makes a false or misleading statement or representation to the Board in connection with any person's claim for benefits under the insurance plan is guilty of an offence.

(2) A person who willfully fails to inform the Board of a material change in circumstances in connection with his or her entitlement to benefits within 10 days after the change occurs is guilty of an offence.

Counsel for Mr. S. relies upon the provisions dealing with fitness of a person charged with a provincial offence, set out in s. 44 of the Provincial Offences Act, R.S.O. 1990, c. P.3, which provides as follows:

44(1) Where at any time before a defendant is sentenced a court has reason to believe, based on,

(a) the evidence of a legally qualified medical practitioner or, with the consent of the parties, a written report of a legally qualified medical practitioner; or

(b) the conduct of the defendant in the courtroom,

that the defendant suffers from mental disorder, the court may,

(b) where the justice presiding is a judge, by order suspend the proceeding and direct the trial of the issue as to whether the defendant is, because of mental disorder, unable to conduct his or her defence; or

(c) where the justice presiding is a justice of the peace, refer the matter to a judge who may make an order referred to in clause (c).

(2) For the purposes of subsection (21), the court may order the defendant to attend to be examined under subsection (5).

(3) The trial of the issue shall be presided over by a judge and,

(a) where the judge finds that the defendant is, because of mental disorder, unable to conduct his or her defence, the judge shall order that the proceeding remain suspended

(b) 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.

(4) At any time within one year after an order is made under subsection (3), either party may, upon seven days notice to the other, make a motion to a judge to rehear the trial of the issue and where upon the rehearing the judge finds that the defendant is able to conduct his or her defence, the judge may order that the suspended proceeding be continued. R.S.O. 1990, c. P.33, s. 44 (1-4).

(5) For the purposes of subsection (1) or a hearing or rehearing under subsection (3) or (4), the court or judge may order the defendant to attend at such place or before such person and at or within such time as are specified in the order and submit to an examination for the purpose of determining whether the defendant is, because of mental disorder, unable to conduct his or her defence. R.S.O. 1990, c. P.33, s. 44(5) ; 1993, c. 27, Sched.

(6) Where the defendant fails or refuses to comply with such an order under subsection (5) without reasonable excuse or where the person conducting the examination satisfies a judge that it is necessary to do so, the judge may by warrant direct that the defendant be taken into such custody as is necessary for the purpose of the examination and in any event for not longer than seven days and, where it is necessary to detain the defendant in a place, the place shall be, where practicable, a psychiatric facility.

(7) Where an order is made under subsection (3) and one year has elapsed and no further order is made under subsection (4), no further proceeding shall be taken in respect of the charge or any other charge arising out of the same circumstance. R.S.O. 1990, c. P.33, s. 44 (6,7)

[5] There is no definition for "mental disorder" in the Provincial Offences Act, it is defined in a health context in the provincial legislation the Mental Health Act, R.S.O. 1990, c. M.7, section 1 defines "mental disorder" as "any disease or disability of the mind".

[6] There is far less case law dealing with the general concept of fitness in the Provincial Offences Act (P.O.A.), than as defined and considered in the Criminal Code. Given that both the Criminal Code and Provincial Offences Act deal with the similar situation of the inability of a defendant to properly participate in the proceedings, most particularly "unable to conduct his or her defence" in the Provincial Offences Act, context, with the consequence being the suspension of proceedings, akin to the Criminal Code regime where proceedings are also effectively stayed with timely reviews thereafter, the court considers the case law for the Criminal Code tests for mental disorder and fitness to be similar and of assistance in this application under the P.O.A.

[7] Mental disorder has been defined in the Criminal Code, and there is a procedure developed for fitness for offences governed by the Criminal Code. In the Criminal Code, section 2 states that mental disorder "means a disease of the mind". Further, this section provides:

"unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of 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

[8] There is a well-developed framework for the consideration of fitness, when it arises in a criminal context. There is a presumption of fitness (s. 672.22) and an onus, of showing on a balance of probabilities that a person is unfit, for any party challenging that presumption. The procedure in place in the Criminal Code is to deal with a situation where a defendant is unable to properly participate in the proceedings, to defend oneself or to instruct counsel. This has been considered in R. v. Taylor (1992), 77 C.C.C. (3d) 551 (Ont.C.A.), together with many other cases. In this case, the court considered all 3 criteria for "unfit to stand trial". With respect to the third criteria, the ability to "communicate with counsel", the court considered the limited cognitive capacity test, striking an effective balance between the objectives of the fitness rules and the constitutional right of a defendant to choose his defence and to have a trial within a reasonable time. This was accepted as the test by the Supreme Court of Canada in R. v. Whittle (1994), 92 C.C.C. (3d) 11. Following that, in R. v. Morrissey (2007), 227 C.C.C. (3d) 1 (Ont.C.A.); ltd ref'd [2008] S.C.C.A. No. 102 (S.C.C.), the Court of Appeal held, at para. 25:

"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 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."

[9] The court further considered the concept of testimonial competence, in the context of evidence in that case that the mental disorder resulting from a brain injury was both an "amnestic disorder" and "frontal lobe syndrome". Before the Court of Appeal for Ontario in that case was the issue of whether the criteria of "communicate with counsel" requirement for fitness, encompassed the standard of being competent to testify, including about critical events related to the charge. The court considered a line of cases which has considered the ability to communicate with counsel, as it relates to facts concerning the offence. The court specifically held that this "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)." The court stated, at paras 29 and 30:

"29…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."

[10] The court held that a person's ability to relate the immediate events surrounding the actual crime is not a prerequisite to a finding of fitness to stand trial. The court specifically considered the context of amnesia, and held that it has never been considered, by itself, to be the basis for finding a person unfit to stand trial. The appellate court found that the previous finding of fitness was not to be questioned.

[11] In the case at bar, it is important to note that the primary focus of the argument brought by the agent for the defendant is that he is unable to remember the events surrounding the allegations, and is therefore unable to instruct counsel.

Evidence Regarding the Defendant's Ability to Conduct His Defence

[12] The agent for Mr. Selvamenan Kathirkamapillai argues that his client is unable to conduct a defence, arising from what he submitted was in effect an inability to get instructions from his client, and as well his client's lack of memory in relation to the relevant events surrounding the allegations in the charge.

[13] The Defendant put before the court medical evidence in support of his application, consisting of a consultation record on September 24, 2015, by Dr. Chanmugam Mahendira, of the Trillium Health Centre, together with a one page report from this doctor dated October 16, 2015. This report dealt in large measure with a foot injury sustained to the defendant. The only portion that might possibly be relevant to this court's consideration is a reference to...

[14] The court reviewed the medical record from August 17, 2015, from the Toronto Western Hospital. Apart from the information related to the injury to the foot of Mr. Selvamenan Kathirkamapillai, and the inherent chronic pain arising from that injury, there was a passing reference to him having been diagnosed as "having severe anxiety, as well as depression with previous suicide attempt". There is also a reference to him having chronic anxiety and a previous suicide attempt. It is clear that he is very upset over the WSIB situation regarding payments. On the second page of the report under the heading "mental status examination" the report notes that his thought form was normal, that although he claims he would hear some kind or noises or voices through the bathroom fan, he does not hear anything or see anything, his judgment is good, and he is cognitively intact.

[15] The Defendant also put before the court a letter from his family physician, Dr. Mahendira, dated October 16, 2015. This report refers to the fact that the defendant's previous doctor passed away in the fall of 2014, and that he is going to be put on a waiting list to be referred to another Tamil speaking psychiatrist. It refers to his inability to sleep, suicidal thoughts, excessive alcohol consumption with psychiatric medications. His family expressed his difficulties in communicating with him.

[16] Following the concerns expressed by this court as to the inadequacy of medical information pertaining to the fitness issue, the agent for the defendant requested that this court order and pay for a forensic psychiatric assessment of his client's fitness. The court expressed its concern as to the insufficiency of the evidentiary foundation for making such an order, and requested that the defendant consider gathering additional medical information to ground his request for such an order. Following an adjournment for the defence to gather such material, an additional report from the family doctor, Dr. Mahendira, dated March 21, 2016, was put before this court. This report referred to a longstanding clinical relationship since 2005 as his physician, and a frequency of seeing Mr. Kathirkamapillai on a monthly basis since his accident in 2005. This report outlined many medical problems faced by the defendant, including those related to his foot injury, diabetes, obesity and other medical issues. One of the other medical issues outlined was characterized as "chronic major depressive disorder and anxiety". There had been two suicide attempts before 2014. She diagnosed him as appearing to have difficulty communicating and exhibiting confusion and poor memory, believing he would need to have a psychiatric assessment to determine the full extent of his problems.

[17] On April 5, 2016, the court made an order for attendance for examination, pursuant to s. 44(2) and (5) of the Provincial Offences Act, R.S.O. 1990, c. P.33, ordering a fitness assessment at the CAM H Behaviour Assessment Unit, in Toronto. The agent for the defendant was asked by the court to send all of the exhibits in this case which were the medical reports and letters, to the unit for the assessment, and this was done. Following that order, a 12 page report was prepared by a forensic psychiatrist well known to this court, Dr. Angus McDonald. This report outlined in great detail the material considered by the doctor, including all of the medical information related to him. The assessment was done with the assistance of a Tamil interpreter. The doctor also interviewed the defendant's wife. The doctor related Mr. Kathirkamapillai's statements that he did not understand the essentials of the referral, although it was the doctor's opinion that it was apparent to him that he did understand. The defendant often stated that he had a lack of memory. He was often vague and contradictory. It was not clear that he had any great commitment to participating in the interview. The doctor stated that the defendant's personal veracity was doubtful. The report outlined the many medications taken by the defendant over many years. The doctor also had an interview with the defendant's wife, who was fairly eager to have her input considered. It is apparent that related to the assessment of fitness to stand trial, the doctor noted "this issue was complicated by Mr. Kathirkamapillai's extreme focus on portraying himself as having no ability to function normally at all and having no ability to remember much of significance about anything." He noted that he clearly does have memories of many things relevant to his circumstances, although his willingness to talk openly about this is limited. He essentially did not answer any questions related to an adequate understanding of what goes on in a courtroom, but is clearly perturbed that he is no longer receiving WSIB benefits. The doctor also noted "it seems clear that his claims, or understanding, or remembering 'nothing at all' are at best exaggerated. He clearly realizes that compensation, that is money, is an important part of this picture. He is clearly upset that this issue will go through the courts again." Dr. McDonald considered, but did not recommend, any further testing or assessment of the defendant.

[18] In conclusion, Dr. McDonald gave his opinion that he cannot suggest anything to dispute the usual assumption of fitness to stand trial. Counsel accepted his report, and did not request a cross-examination of him as a witness. It is also important to note that this is the only evidence directed to the issue of fitness, and that is particularly timely in terms of an assessment by a psychiatrist. I found his evidence to be reliable and persuasive.

[19] There was no other evidence, in the nature of an opinion or assessment of a forensic psychiatrist with respect to the issue of fitness, before the court.

[20] On all of the evidence, before this court, the court finds that while there is evidence that the defendant is suffering from depression and anxiety, the medical evidence before this court is that as opined by the forensic psychiatrist, the presumption of fitness would nonetheless remain for the defendant. This court is now required to conduct a trial of the issue of whether the defendant is because of mental disorder, unable to conduct his defence.

[21] The agent for Mr. Kathirkamapillai has argued that his client's lack of memory of various events supports his argument that his client, notwithstanding the report of the forensic psychiatrist, is unable to conduct his defence. The agent relied on various cases. R. v. Steele was a case where the court relied on s. 615 of the Criminal Code, which is no longer in effect, regarding fitness. Having made that observation, the court essentially found that the trial judge should have considered the issue of fitness, and did not do so, and ordered a new trial. There is nothing in that judgment that is particularly helpful to this court in this case. The agent for the defendant also relied upon R. v. Isaac, 2013 ONCJ 114, but that case is also not particularly helpful to this court given the issues under consideration.

[22] Counsel for the prosecutor has relied upon two particular cases dealing with fitness under the P.O.A. In Real Estate Council of Ontario v. Chua, [2013] ONCJ 251 (O.C.J.), Justice Nakatsuru considered the issue of the defendant's ability to conduct his defence pursuant to s. 44(3) of the P.O.A. in the context of a prosecution of charges under the Real Estate and Business Brokers Act, S.O. 2002, c. 30. He found that the defendant can participate in his trial in a meaningful way, does understand the proceedings, charges and consequences, and can properly communicate and instruct counsel, based on the medical evidence in that case.

[23] In R. v. Hanna, [2015] O.J. No. 4912 (O.C.J.), Justice Bourque considered the issue of the defendant's ability to conduct his defence pursuant to s. 44(3) of the P.O.A. in the context of a prosecution under a provision similar to the case at bar, s. 149(2) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16. In that case, the workplace accident related to a head injury, unlike the case at bar where it was an injury to the foot. The court in that case also held that there is a presumption of fitness, and an onus on a balance of probabilities for a party seeking to challenge that presumption. In that case, the court ordered a fitness assessment, and a report was prepared by a forensic psychiatrist at CAM H, Dr. Iosif. Dr. Iosif indicated that the defendant suffered from a conversion disorder, as well as chronic post-traumatic stress disorder. She found, from a psychiatric perspective, that the defendant was unfit to stand trial. On the evidence in that case, including the opinion of Dr. Iosif which the court accepted, the court found the defendant, on the balance of probabilities, as being unable to conduct his defence. The proceedings were suspended, pursuant to s. 44(3) of the P.O.A.

Decision

[24] In this case, the court finds, based upon the uncontradicted forensic psychiatric evidence, that Mr. Kathirkamapillai is fit and able to conduct his defence. He is able to communicate with his counsel, and instruct his counsel, in the assessment of fitness. He has not established, on a balance of probabilities, that due to a mental disorder he is incapable of conducting his defence.

[25] Accordingly, this matter is remitted to the Provincial Offence trial court, to set the matter for trial.

Justice Beverly A. Brown

Released: June 23, 2016