Court Information

Date: March 15, 2017

Ontario Court of Justice (East Region)

Her Majesty the Queen v. Musab Abdurahman A-Noor

Before: Justice David M. Paciocco – Ottawa ON

Reasons for Fitness Decision of March 10, 2017

Released: March 15, 2017

Counsel

Mr. B. Holowka ……………………………………………………………………..….for the Crown

Mr. S. Adam ……………………………………………………………..………...for Mr. A-Noor

I. Introduction

[1] On January 4, 2017, Mr. Musab Abdurahman A-Noor was found unfit to stand trial on murder charges involving the killing of his sisters. A sixty day "make fit" order was issued on January 6, 2017. On March 10, 2017, the matter came before me to determine whether Mr. A-Noor's treatment succeeded in making him fit.

[2] Although fitness is ordinarily presumed, where an accused person has already been found unfit, as in this case, Criminal Code s.672.32(2) places the burden of proof on the party who asserts fitness to establish fitness on the balance of probabilities.

[3] Mr. Holowka, for the Crown, accepts that the Crown carries that burden in this case and conceded that it did not meet its burden. In light of the evidence before me I accepted that concession and found Mr. A-Noor to be unfit, with reasons to follow.

[4] I reserved providing reasons because, in spite of the agreement between the parties that Mr. A-Noor is unfit, the parties are not id idem as to why. Mr. Holowka asked me to find Mr. A-Noor unfit on a narrower footing than was offered in the opinion of forensic psychiatrist Dr. Michelle Mathias, relied upon by Mr. A-Noor. While this contest will not change the decision I arrive at, Mr. Holowka is concerned that the reasons I offer could influence subsequent assessments of Mr. A-Noor's fitness by the Ontario Review Board. Mr. Holowka encourages me to avoid issuing an overbroad decision that could inappropriately extend the reach of the unfitness to stand trial definition.

[5] In order to respond to this request in as clear a manner as possible, I delayed issuing reasons for my decision. These, then, are my reasons for finding Mr. A-Noor to be unfit to stand trial.

II. The Legal Standards for Fitness

[6] The legal standard that applies to determine fitness is provided for in section 2 of the Criminal Code, where "unfit to stand trial" is defined.

"'unfit to stand trial' means unable on account of mental disorder to conduct a defence at any stage in the proceedings before a verdict is rendered or to instruct counsel to do so, and in particular, 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;"

[7] Notably, the term "unable" in the "unfit to stand trial" definition makes clear that the question is about the capacity of the accused person, and not their current performance or understanding. If an individual can be instructed on matters where their material understanding is deficient, that person is not unfit. Similarly, if a person could communicate with counsel yet chooses not to do so, that person is not unfit.

[8] In determining whether the accused person is unfit, the "Taylor test" is applied. In the interests of striking a balance between the rationale for deferring trials for those who are not fit, and the competing interest in conducting timely trials of criminal allegations, the Taylor test calls only for "limited cognitive capacity": R. v. Taylor, [1992] O.J. No. 2394 (Ont. C.A.) The standard for fitness is therefore not high. It requires only a "relatively rudimentary understanding of the judicial process" (R. v. Morrissey, 2007 ONCA 770, [2007] O.J. No. 4340 at para 27 (Ont. C.A.)) and a basic but meaningful ability to communicate about the case.

[8] Specifically, the mental capacity of the accused must be "sufficient to comprehend the course of the proceedings in the trial, so as to make a proper defence … and to comprehend the details of the evidence": R v. Taylor, supra at para 47. In R. v. Thompson, 2011 ONCJ 209, [2011] O.J. No. 1869 (Ont. C.J.), at para 8, Justice J.S. Nadel provides a helpful list of considerations, namely, that an accused person is fit:

• If he understands the nature of the proceedings and the functions of the persons involved in them;
• If he knows what the issues are and the possible outcomes of the proceedings;
• If he is able to follow the evidence generally, even though he may misinterpret it;
• If he is capable of instructing counsel although he may disagree with counsel as to how the case should be conducted and he (the accused) may not act with good judgment.

[9] Justice Nadel summarized guidance offered in R. v. Morrissey, supra to give colour to the intensity of the inquiry as follows, at para 14:

"More fulsomely, Morrissey describes 'the ability to communicate with counsel as the ability to communicate for the purpose of conducting a defence, considering counsel's advice, and giving instructions with respect to the defence.' Put otherwise, the accused 'must be physically, intellectually, linguistically, communicatively present and able to partake to the best of his natural ability in his full answer and defence to the charge against him."

[10] Care must be taken with this list of competencies. As the Taylor case explains, being physically, intellectually, linguistically, communicatively present and able to partake to the best of one's natural ability in full answer and defence is not an imposing standard. The degree to which this is so is illustrated by the decision of Justice Sopinka in R. v. Whittle, [1994] 2 S.C.R. 914.

[11] The Whittle case did not deal with fitness to stand trial. The material legal issue was whether statements by Mr. Whittle admitting to the crime, made while he was floridly psychotic, could be admitted into evidence. That case is relevant to fitness because Justice Sopinka applied the fitness standards in resolving the level of competence needed to make a voluntary statement.

[12] And the bar was set low. Even though Mr. Whittle was driven to confess by the voices in his head, the statements were admissible because Mr. Whittle understood the nature, object and consequences of the criminal proceeding, and was able to instruct counsel. Justice Sopinka commented, at para 54:

"… There was no obligation on the Crown to establish that the appellant possessed a higher degree of cognitive capacity. To the extent that the inner voices prompted the appellant to speak in apparent disregard of the advice of his counsel and to his detriment, because he did not care about the consequences or felt that he could not resist the urging of the voices, they cannot be the basis for exclusion. …."

[13] In summary, an accused person will be unfit to stand trial if they are mentally ill at the time, and that mental illness either leaves them incapable of understanding the course of a trial (including the nature or object or possible consequences of the proceeding), or that mental illness leaves them incapable of instructing counsel because of an inability to follow the evidence, or an inability to discuss issues, or make decisions, on matters of basic importance to the case. An accused person will not be unfit, however, simply because their mental illness influences their decisions or choices, including by depriving them of the ability to make wise choices.

III. The Material Evidence and Analysis

[14] The only evidence before me at the hearing was the opinion of Dr. Mathias.

[15] Dr. Mathias diagnosed Mr. A-Noor as having major mental illness. He is schizophrenic. He is also currently suffering from a "Major Depressive Episode," a condition recognized as a mental illness within psychiatry. Both conditions qualify as diseases of the mind in law, and therefore are mental disorders, contemplated by the definition of mental disorder in Criminal Code, s.2.

[16] When Mr. A-Noor was first found unfit on January 4, 2017, Dr. Mathias's opinion was that the unfitness was linked to Mr. A-Noor's schizophrenia. At the time he was experiencing the extreme psychotic state of catatonia, which effectively prevented him from any meaningful participation or communication.

[17] Treatment administered under the "make fit" order has significantly improved the current symptoms of the schizophrenia. As the result of ongoing medication, Mr. A-Noor is no longer displaying symptoms of catatonia, and his lesser psychotic episodes, such as hearing voices, have reduced.

[18] For a time, these voices disappeared but he reported some disturbances around the time of his court appearance on March 6, 2017. Dr. Mathias attributes these disturbances to the increased stress brought on by those court appearances, and she fears that Mr. A-Noor remains at risk of further catatonic episodes if he is not weaned properly from the relevant medication.

[19] While Dr. Mathias is of the opinion that the schizophrenia continues to contribute to Mr. A-Noor's "ambivalence in decision making," about which I will say more shortly, I interpret her opinion to be that it is the Major Depressive Episode that is the primary cause of her current fitness concerns.

[20] This is not the familiar kind of case where the accused person's fitness is called into question because of ongoing breaks with reality. Instead, Dr. Mathias is primarily concerned about the impact of Mr. A-Noor's depression on his ability to instruct counsel. In her opinion, his depression is so intense that it is triggering significant cognitive impairment that has denuded him of the capacity to follow the evidence, or to discuss issues, or make decisions, on matters of basic importance to the case.

[21] Although she did not put it this way, Dr. Mathias opinion raises questions about both fitness concerns – Mr. A-Noor's ability to comprehend the process, and his ability to instruct counsel. Her emphasis is decidedly on the latter issue.

[22] With respect to Mr. A-Noor's comprehension of the process, Dr. Mathias testified that Mr. A-Noor, after treatment and instruction, now shows comprehension of the nature and purpose of the proceeding, including the roles of the parties, the charges he faces and the consequences of a trial. He has, however, had difficulty retaining the concept of being not criminally responsible. Dr. Mathias is concerned that unless Mr. A-Noor can hold onto that concept he will be left unable to instruct counsel on matters relevant to the plea.

[23] I agree with the Crown that it is not appropriate to find Mr. A-Noor unfit based on his capacity to comprehend the criminal process. He understands the basic concepts, and even with respect to the "not-criminally responsible" plea, Dr. Mathias testified that Mr. A-Noor is capable of understanding that concept when it is re-explained to him. In my view, this is enough. So long as Mr. A-Noor can understand the material concepts at the time decisions by him are required – even if after explanation – his fitness is not undermined by an inability to retain those concepts subsequently.

[24] The real issue of concern relates to Mr. A-Noor's capacity to instruct counsel, particularly his ability to participate meaningfully in the trial. Dr. Mathias is of the opinion that Mr. A-Noor is unable to make decisions essential in instructing counsel because of his mental disorder. His ability to concentrate is undermined to the point where he is not only slow in processing information, he cannot maintain focus for more than 20 to 30 minutes and therefore could not follow a trial. More importantly, he is unable to concentrate sufficiently to make material decisions. He changes his mind without reason, quickly, and he cannot maintain his attention sufficiently to process information needed to make required decisions.

[25] It is because of this evidence that the Crown accepts that it has failed to show Mr. A-Noor is now fit. The Crown agrees that because of these cognitive impediments Mr. A-Noor is unable "intellectually [and] communicatively [to be] present and [un]able to partake to the best of his natural ability in his full answer and defence to the charge against him."

[26] The Crown takes issue, however, with Dr. Mathias's opinion that Mr. A-Noor's inability to instruct counsel rests, in part, on the debilitating impact of the suicidal, nihilistic tendencies accompanying Mr. A-Noor's depression. Essentially, Dr. Mathias is of the opinion that Mr. A-Noor's desire to kill himself, and his related sense that the trial does not matter because his life is over, are so strong that he suffers from "psychotic ambivalence" that is contributing to his inability to focus on his legal jeopardy and give proper instructions to counsel.

[27] Mr. Holowka intimates that I should not accept this aspect of Dr. Mathias's evidence because Dr. Mathias did not arrive at her opinion that Mr. A-Noor was "psychotically ambivalent" until her oral testimony, not having included that opinion in her written report authored on March 3, 2017, only a week before her testimony. The Crown expressed concern with Dr. Mathias's failure to offer concrete examples of events that occurred, between writing the report and her testimony, that can explain why she moved from merely suspecting "psychotic ambivalence" to diagnosing it.

[28] Second, the Crown submits that unfitness to stand trial cannot arise from the decision of an accused person to make the unwise decision of failing to properly instruct counsel because of the hopelessness and apathy that depression brings. As such, I should reject Dr. Mathias's reliance on "psychotic ambivalence."

[29] Ultimately, my decision to find Mr. A-Noor unfit could be sustained solely on the evidence of Dr. Mathias about Mr. A-Noor's cognitive ability to participate meaningfully in the trial that has been accepted by the Crown. I am, however, accepting her testimony about "psychotic ambivalence" as well, and I am relying upon it to augment the finding I am making.

[30] As indicated, the only evidence before me was Dr. Mathias's testimony. She presented as a credible and reliable witness, offering an honest assessment falling within her expertise. The Crown was appropriately respectful in challenging the development of her opinion, and has not done enough in cross-examination, in my view, to cause me to reject her opinion about "psychotic ambivalence," given the overall quality of her evidence.

[31] Further, as Mr. Adam pointed out in his reply submissions, Dr. Mathias's testimony was not simply that Mr. A-Noor has, because of his Major Depressive Illness, become too apathetic to want to participate. Her evidence is that because of the intensity of his mental illness, Mr. A-Noor is incapable of setting aside his nihilistic tendencies and choosing to participate in his defence.

[32] Simply put, on the evidence I am accepting in the absence of conflicting opinion, Mr. A-Noor is, at present, so ill and his depression so profound, that, in conjunction with his schizophrenia, it has deprived him of the ability to decide whether to participate, and left him thoroughly unable to do so.

[33] To be clear, if the evidence before me was that, because he is depressed and suicidal, Mr. A-Noor has made the unwise decision to opt out of his trial, I would be agreeing with the Crown. Since that is not the evidence that I accept, I am placing reliance on Dr. Mathias's opinion that Mr. A-Noor's suicidal, nihilistic condition is contributing to his inability to instruct counsel.

Released this 15th day of March, 2017

The Hon. David M. Paciocco