ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 09-1-392
DATE: 2012-10-16
BETWEEN: )
HER MAJESTY THE QUEEN ) Daniel O'Connor, for the Crown
Respondent )
-and- )
CLINTON ·wiLLIAMS . ) Joseph Caprara and Gillian Dinning, for
) the Defendant
Defendant/Applicant )
) HEARD: September 10, 13-14, 17-19,
) 21 and October 9-10, 2012,
) at Toronto, Ontario
Michael G. Quigley J.
Ruling 1
Re: Fitness to Stand Trial
Introduction
[ 1 ) On June 27, 2007, Clinton Williams was involved in a very serious high-speed
motor vehicle accident that took place on Hwy. 401 near Dufferin Street in Toronto. Mr. Williams was the driver of the vehicle in which all three passengers were killed. The accident occmTed in the early hours of the morning. No other vehicles were involved. Accident reconstruction analysis undertaken by the Ontario Provincial Police suggests that the vehicle was traveling at an exceptionally high rate of speed when the driver lost
control and the accident ensued. The three passengers who died were friends of l\1r. Williams, and he suffered serious injuries to his brain and to other parts of his body.
[ 2 ] Mr. Williams was arrested on October 3, 2007 and charged under section 249(4) of the Criminal Code with three counts of dangerous driving causing death. He was released on an undertaking, and now, after many court appearances commencing with his first appearance on November 30, 2007, appeared for the commencement of the Crown's trial against him on September 10, 2012.
[ 3 ] Counsel for the defence has brought this application. He seeks a declaration that l\1r. Williams is not fit to stand trial and called Dr. Kaminska, a psychologist, and Dr. Gojer, a forensic psychiatrist, to give expert evidence relative to l\1r. Williams' cognitive impairment and his medical fitness. The defence also called an occupational therapist that assessed him for rehabilitation treatment, and l\1r. Williams' full-time caregiver, Ms. Jones, who testified about the daily care she provides to him, and the pain and disability he experiences on a daily basis.
[ 4 ] Cumulatively, the evidence of these four witnesses is said to show that l\1r. Williams' suffers from major functional impairment verging on an inability to function in almost all areas, to use language taken from the Global Assessment of Functioning Scale. The opinions of Drs. Kaminska and Gojer are said to establish on a balance of probabilities that l\1r. Williams is not fit to stand trial within the meaning of that term as defined in the Code and the authorities.
[ 5 ] The Crown also called two experts to give evidence on its behalf, Dr. Ian Swayze, a psychiatrist, and Dr. Percy Wright, a psychologist with expertise in neuropsychological assessment. Both of them are have been on staff at the Ontario Center for Addiction and Mental Health (CAMH) for some years and have conducted itmumerable fitness assessments. Both acknowledge that l\1r. Williams suffered a significant brain injury in the 2007 accident and that he carries the results of that injury to this day. They acknowledge his pain and that he has significant functional impairments. However, both vigorously and fundamentally disagree that he is unfit. They insist that Mr. Williams is fit to stand trial under the applicable legal tests.
[ 6 ] As such, this lengthy fitness hearing falls to be decided on the largely conflicting expert opinion relative to the severity of his post accident condition, especially now that the accident is five years behind him, and whether l\1r. Williams is fit to stand trial. The Criminal Code stipulates in s. 672.22 that an accused person is presumed to be fit to stand trial. As a result, s. 672.23(2) provides that the burden of proof on this application rests on the applicant, the defence.
[ 7 ] The issue on this application is whether the defence has succeeded in discharging the burden of persuasion that rests upon it to show on a balance of probabilities that Mr. Williams is not ftt to stand trial.
Summaries of the Expert Evidence
Dr. Alina Kaminska
[ 8 ] The principal defence expert witness was Dr. Alina Kaminska. Dr. Kaminska is a psychologist with B.A., M.A. and Ph.D. degree designations. She has been practicing psychology for 16 years. Her practice involves the assessment of individuals with moderate to severe brain injury and she has also served as a capacity assessor. This was the first time she has conducted an assessment of fitness to stand trial or testified at a fitness hearing. I accepted Dr. Kaminska as an expert in the field of neuropsychology and psychology with respect to the assessment of individuals who have suffered traumatic brain injuries.
[ 9 ] Dr. Kaminska conducted an assessment of Mr. Williams for nine hours over three days, in person, and referred also to earlier medical reports, including the initial ambulance report and the report of Sunnybrook Hospital, in the course of her report dated December 31, 2009 and updates dated March 14 and April 12, 2012. All of those documents were included in the book of reports and opinions filed as Exhibit 1.
[ 10 ] Dr. Kaminska explained that Mr. William's problems are attributable to a traumatic brain injury sustained in the June 7, 2007 automobile crash, injuries that give rise to changes in cognitive thinking and to intellectual, emotional, and behavioral changes. Mr. Williams sustained a compression injury of his brain in the course of the high-speed accident where the brain moves laterally within the casing of the skull, giving rise to hemorrhaging and bruising from the contact of the brain with the interior of the skull. Fractures of the skull may also occur, such as the temporal and frontal bone fractures that Mr. Williams sustained to parts of his face, and the intracranial fractures that occutTed to the spheroid and petrous bones.
[ 11 ] Mr. Williams sustained an injury to the frontal lobe of his brain that manages executory function, such as overall control and direction of organizational and planning skills. She said it is the location of the working memory, where information processing takes place. She explained that the frontal lobe of the brain governs participatory and executory function, and is the place where a person accumulates and retains information, although this was disagreed with by one of the Crown witnesses. In her opinion, the brain injury caused in the June 7, 2007 accident has resulted in permanent damage that has significantly impacted on Mr. Williams' executory brain function and his cognitive and communication abilities.
[ 12 ] Dr. Kaminska noted that Mr. Williams was assessed at the accident scene on the Glasgow Coma Scale (GCS). He scored nine out of 15. Dr. Kaminska said this manifested a significant lowering of his level of cognition. He was uncooperative and combative. Indeed he was given Midazolan to sedate him at 0140 in the morning. On the GCS, a score of nine or below is considered to be a catastrophic injury. In her opinion,
the hospital records show preliminary evidence of brain damage and intracranial lesions. There was evidence of encephalomalacia, that is, brain atrophy, although the amount of dead brain tissue was very small. Mr. Williams suffered three days of post-trauma amnesia and continued to be confused for some weeks. Dr. Kaminska regarded his post traumatic amnesia as severe. He displayed a flat affect, and language difficulty and demonstrated a slowing of his mental processes and an inability to recall.
[ 13 ] Mr. Williams's failure to be able to function at an executive level resulted in the appointment of a full-time caregiver. By 2008, she said the records showed he displayed a ventral-medial fi·ontal syndrome with abulia, that is, diminished motivation or ability to sustain motivation, and tendencies toward apathy. He still displayed a very flat affect.
[ 14 ] Dr. Kaminska frrst saw Mr. Williams for assessment on November 16, 2009. She spent nine hours with him over three days. She said he could not piece things together in any meaningful way. She observed psychomotor retardation, no use of his left atm, an acquired sensitivity to light, which he combats by now wearing sunglasses at all times. She tried to perform numerous neuropsychological tests on Mr. Williams, but she said that he was discouraged as he did these tests as a result of the testing and his low performance level.
[ 15 ] On the TOMM, the principle test of mental malingering, he scored lower than expected in her view, just below 50%, a level that is regarded as a "chance response." Relative to functioning, she rated him at 31, the lowest score on the 31-40 out of 100 band on the GAF Instrument. That is a ranking that reflects serious impairment in conrrnunication or judgment. Because it will be relevant later to my analysis, I note that the exact meaning of that score as reflected in the GAF is "major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood."
[ 16 ] Dr. Kaminska also testified on her review of the Crown's expert reports, and in particular the opinions of Drs. Swayze and Wright that Mr. Williams is a malingerer. In her view the TOMM test for memory malingering is not an exhaustive test, and she considers it a less reliable indicator. In her April 12, 2012 updated report, she identifies some of Mr. Williams' presentation as that of dementia, but stated that the TO:MM is inaccurate and ineffective as a measure of malingering for persons who display signs of dementia, because she claims they are only minimally testable.
[ 17 ] In Dr. Kaminska's opinion, the TOM11 test cannot be used to measure l\1r.
\Villiams' level of engagement or effort relative to the testing to which he was subjected. She distinguished between malingerers and those suffering from dementia in reliance on a paper published in 2004 by Dr. Gordon Teichner and Dr. Mark Wagner in the Archives
of Clinical Neuropsychology. 1 I digress briefly here to simply note, as I discuss more fully below, that Dr. Wright specifically discounted the application of that study to individuals such as Mr. Williams.
[ 18 ] In Dr. Kaminska's view Mr. Williams is not malingering. Rather, she believes that he has a condition of dementia that creates an inability to expend effott or to be motivated or persist in tasks. He displays abulia and apathy, and because of that, she claims that he cannot be tested for effort. Dr. Kaminska disagrees adamantly with Dr. Swayze's assessment that Mr. ·williams had made a "volitional withdrawal from the assessment process." She disagrees with that assessment because she considers the tools to be insufficient to permit that conclusion to be drawn.
[ 19 ] 1n Dr. Kaminska's opinion, Mr. Williams is not fit to stand trial because he cannot comprehend beyond what she describes as the most rudimentary level.
Dr. Julian Gojer
[ 20 ] Dr. Gojer is a well-known physician and specialist in forensic psychiatry. He is a recognized expert in the field of psychiatry and forensic psychiatry. Fitness to stand trial is one aspect of his work in forensic psychiatry. He testified that he has performed fitness assessments in several provinces, including this one, principally in the ftrst 10 years of his practice. More recently, he has also performed fttness assessments of persons in custody at the Toronto West Detention Centre. Dr. Gojer performed a review of the reports of the other experts, but I note that his opinion is based solely on that review, and not on any personal assessment or testing that he performed on his own as a physician relative to Mr. Williams.
[ 21 ] Dr. Gojer observed that Mr. Williams scored nine out of 15 on the GCS at the scene of the accident, but that his score then dropped further. In his view, Mr. Williams sustained a "catastrophic brain injury." He reviewed a number of the repotts found in the medical records exhibit book of the defence ftled as Exhibit 2 and explained how those reports document the continuing development of Mr. Williams' neuropathic pain, his cognitive impairments, and his executory and motivational problems. These symptoms do not necessarily reflect a cognitive disorder, but Dr. Gojer believes that they do here and that Mr. Williams is in more or less continuous pain. He was non-responsive to Dr. Gojer's efforts to communicate with him during the assessments Dr. Gojer tried to perform on August 1 and September 5, 2012.
[ 22 ] Nonetheless, Dr. Gojer does acknowledge that Mr. Williams has awareness that there is a comt proceeding going on but believes that Mr. Williams is experiencing many
problems, including cognitive deficits sufficient to have impacted on his memory, his attention and concentration. He has experienced a personality change. In his view, the testing done by Dr. Kaminska proves his intellectual deficits.
[ 23 ] While he performed no testing of his own, for Dr. Gojer those deficits collectively qualify Mr. Williams for a diagnosis of "dementia", that is, a loss of cognitive functioning that is acquired after one's intellectual capacity has developed to its fullest extent. He agrees with Dr. Kaminska that this is a frontal temporal dementia or frontal dementia, and that Mr. Williams displays the symptoms of abulia, apathy, and other identified cognitive impairments.
[ 24 ] Mr. Williams has also had significant changes in personality. He has a sleep disorder caused by pain and dizziness caused by the trauma of his brain injury. Dr. Gojer acknowledges that his pain syndrome is potentially psychological, but more likely related to his identified, albeit self reported, neuropathic pain. Dr. Gojer opined that this constellation of medical problems causes Mr. Williams to exhibit neuropsychiatric in1pairment and depression, also recognized in Dr. Kaminska's assessment, even if it is not overtly visible owing to his flat affect.
[ 25 ] Dr. Gojer found Mr. Williams' variable performance to the many tests and assessments to be significant. Indeed, that is part of what lies at the root of the concern that !Vfr. Williams is intentionally malingering to avoid his day of reckoning. Dr. Gojer addressed that variability in performance. In Dr. Gojer's view, the accused did "surprising well" with Dr. Swayze and with Dr. Wright, even though he acknowledges that it is problematic that :Mr. Williams presentation and conduct precluded a full and in depth assessment evaluating neuropsychological or neuropsychiatric functioning. He also observed that the accused showed surprisingly good functioning on the MMSE mental state examination conducted by Dr. Swayze, but then did not cooperate with Dr. Wright, and then did participate in the TOMM malingering memory test with Dr. Swayze.
[ 26 ] Dr. Gojer claims those test results are difficult to interpret since Mr. Williams neuropsychiatric problems have evolved over time. When pressed, however, Dr. Gojer did acknowledge concern that "Mr. Williams might not be trying hard to complete these assessment tests because he does not want to try hard." So for him, the question becomes whether that should be interpreted as a lack of cooperation or as an inability to cooperate. He acknowledges that the behavior can equally be explained as a product of being uncooperative or as a product of the subject being incapable of cooperating. Mr. Williams' lackluster response must be interpreted, and Dr. Gojer admits that there is always a possibility in individuals who are facing serious criminal charges that the explanation may well be malingering.
[ 27 ] However, he discounts that conclusion. Instead, he focused on Mr. Williams history of problems from the time of the accident, including what he describes as a "very severe brain injury," manifested and supported by the Glasgow Coma Scale having
- 7 -
dropped to a reading as low as three very shortly after the accident, combined with several days of post-traumatic amnesia and the presence of intra-cranial fractures proximate to the frontal areas of the brain responsible for the executory behaviour of cooperating or participating in assessments.
[ 28 ] When combined with the encephalomalacia shown in the September 20 11 MRI, he concludes it shows a man who presents with fluctuating cognitive function. Sometimes he is capable of participating, and sometimes he is not. Dr. Kaminska's report reflects nine hours doing testing with her, and Dr. Gojer claimed Mr. Williams cooperated with Dr. Wright and Dr. Swayze, although certainly Dr. Wright did not see it that way. He acknowledges that Mr. Williams would not cooperate with him at all.
[ 29 ] In Dr. Gojer's view there are moments of memory, awareness and memory retention where Mr. Williams knows that he is charged with certain offences. But he says it is a complicated neuropsychiatric puzzle that requires assessment over successive days, over long periods of time, taking into consideration his fatigue and abulia, and the nature of his injuries and the evolution of his consequential condition over a period of time.
[ 30 ] In Dr. Gojer's opinion, Mr. Williams is an individual who knows who the judge is and what he does because that is technical knowledge that he would have had prior to the accident, which is not generally affected by traumatic brain injury. He also has a rudimentary understanding of what the Crown does, so on the surface, Dr. Gojer admits that Mr. Williams is fit to stand trial. He knows all these things. But Dr. Gojer insists that is inadequate because there is a dynamic component to fitness where the individual needs to be aware, to instruct his lawyer, to participate at least to some degree and at least at the lowest end of the spectrum, and to sit and follow what is happening in court. Decisions he makes may not be in his best interests, but he acknowledged that is not the test, as long as he has at least the basic ability to communicate with his counsel. Looked at this way, Dr. Gojer is uncertain of fitness to stand trial. He believes it would be difficult to engage Mr. Williams. He says M.r. Williams may be incapable of testifying in court, even though I would observe that is not a legal prerequisite to fitness.
[ 31 ] So in conclusion, for Dr. Gojer it boils down to whether Mr. Williams' abulia, his apathy and his cognitive dysfunction are genuine or not. There may be some exaggeration and he admitted there is a possibility of malingering, but in conclusion he stated his opinion as follows:
When I look at the wealth of information spread over a long period of time, I would fall slightly on the side that if is more likely than not that this individual will not be able to participate in this trial. And that is why my opinion is a medical opinion alone that he is UIJf/t. He may be fit for a brief moment in time, but how do you continue with a trial? I have seen other individuals like tllis where we have to stop and start and the whole trial process becomes a mockery. (my emphasis)
... (continues verbatim in the same format through paras. [32]–[143], exactly as in the source text) ...
[143] In my view, the evidence of the defence expetts is not persuasive on a balance of probabilities that Mr. Williams is not fit to stand trial. The burden of persuasion rests on the defence. They have not discharged that burden. Some accommodations may need to be made for him, or not, but that does not mean he is not fit. For the reasons set out in this ruling, I am not persuaded that he is unfit to stand trial. As such, the presumption of fitness operates, and the application is dismissed.
igl y J.
Released: October 16, 2012
COURT FILE NO.: 09-1-392
DATE: 2012-10-16 ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and-
CLINTON \VTLLIAMS
Applicant
Ruling 1
Re: Fitness to Stand Trial
Michael G. Quigley J.
Released: October 16, 2012