ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20130117
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBLE ADAM
Beverley Richards, for the Crown
Roble Adam, Self-Represented
Christopher R. Murphy and Kenneth Morris, Amicus Curiae
HEARD: November 15 and 27, 2012
TROTTER J.
I. Introduction
[1] Mr. Adam was charged with murder about three years ago. His case has been delayed from time-to-time due to questions about his fitness to stand trial. There have already been two fitness hearings. At the first one, Mr. Adam was found unfit. At a second hearing, he was found fit and his trial commenced. During a voir dire into the admissibility of utterances attributed to Mr. Adam, concerns about fitness arose again, prompting the Crown to apply for a fitness assessment and for another fitness hearing. I allowed both applications and these are my reasons why.
II. Background
(a) The Charges
[2] On February 3, 2010, Mr. Adam was arrested for the first-degree murder of Larisa Belekova, the office manager of a Toronto residence for persons with mental health issues. After a preliminary inquiry, Mr. Adam was ordered to stand trial on a charge of second-degree murder. However, the Crown successfully sought review by certiorari, resulting in Mr. Adam being ordered to stand trial for first-degree murder: see R. v. Adam, [2011] O.J. No. 5825 (S.C.J.), aff’d 2012 ONCA 582.
(b) Mental Disorder and Fitness Proceedings
[3] Unfortunately, and I say so with great respect, Mr. Adam’s mental health has been an issue throughout the proceedings, both in terms of criminal responsibility, and his fitness to stand trial. Numerous psychiatric reports have been compiled over the life of this case. The consensus among psychiatrists seems to be that Mr. Adam suffers from schizophrenia (undifferentiated type). Mr. Adam made it through the preliminary inquiry without being found unfit. Problems seem to have arisen once he was committed to stand trial in this Court.
[4] Mr. Adam is unable to maintain a relationship with counsel. As a result of his illness, he becomes suspicious and distrustful of his lawyers. Consequently, early on, my colleague, Nordheimer J., appointed Mr. Christopher Murphy as amicus curiae.[^1] This was over Mr. Adam’s objection. Mr. Adam has since repeatedly asked for Mr. Murphy to be removed as amicus, alleging that he is working against him (in conjunction with others involved in the process). I will return to this theme below. Suffice it to say here, these allegations, which appear to be driven by Mr. Adam’s illness, are baseless.
The First Fitness Hearing
[5] On the first occasion that this trial was set to commence, my colleague Forestell J. was the trial judge. On application by the Crown, she determined that there were reasonable grounds to believe that Mr. Adam was unfit to stand trial and directed a trial of the fitness issue. This application was opposed by Mr. Adam. On June 15, 2012, a jury found Mr. Adam unfit to stand trial. Forestell J. then made a treatment order.
The Second Fitness Hearing
[6] By the fall of 2012, it appeared that Mr. Adam had benefitted from the treatment that he had received. He was brought back to court with the hope that a trial could be commenced. I was assigned as the trial judge. Because of the previous finding of unfitness, it was necessary to conduct another fitness hearing. By this point, both parties were in agreement that Mr. Adam was fit to stand trial. On September 21, 2012, after a very brief hearing before a differently constituted jury, Mr. Adam was found fit to stand trial.
[7] It is worth mentioning here that the question of Mr. Adam’s medication is an issue that has arisen in court with great frequency. After being found fit to stand trial on September 21, 2012, Mr. Adam agreed to receive intra-muscular injections of anti-psychotic medication every two weeks. Mr. Adam has regularly consented to these injections. However, as discussed below, this has been a recurring topic of discussion with Mr. Adam in court. These discussions have sometimes reflected on the question of fitness.
The Commencement of the Trial
[8] Once Mr. Adam was found fit to stand trial, the trial started shortly afterwards. A voir dire was commenced to determine whether utterances attributed to Mr. Adam shortly after Ms. Belekova’s death were voluntary.
[9] During this voir dire, Mr. Adam’s condition seemed to deteriorate. I will provide a couple of examples. Once, when I was checking into whether Mr. Adam had received his anti-psychotic medication while incarcerated, he complained that he had received “bad” medication. He blamed this occurrence on the “Canadian Intelligence Agency” (or the “Canadian Intelligence”, as he sometimes calls it) and then suggested that I was connected to this organization. In the context of a discussion about re-election (to a judge alone trial), Mr. Adam said that he did not trust me. Although, in fairness to Mr. Adam, when I asked him about the roles of the various players in the process, he seemed to acknowledge that I am neutral in these proceedings.
[10] During the voir dire, the Crown called Dr. Ian Swayze as one of its witnesses. Dr. Swayze is a psychiatrist who has had extensive involvement with Mr. Adam in this case. On the voir dire, he provided expert opinion evidence on the issue of whether Mr. Adam had an operating mind when he spoke to the police shortly after Ms. Belekova was killed: see R. v. Whittle (1994), 1994 55 (SCC). During Dr. Swayze’s evidence, a videotaped police interview of Mr. Adam was played. On a number of occasions while the video was being played, Mr. Adam said the video was a “fake.” Mr. Adam later explained that the person in the video was not him, but was instead an imposter who had memorized the details of his life. He connected the Canadian Intelligence Agency with the production of this videotape.
[11] Mr. Adam’s cross-examination of Dr. Swayze did not go well. During his questioning, he became fixated on the presence of a hair fibre found in the interview room during his initial interview with Dr. Swayze. Hair fibres are apparently part of Mr. Adam’s delusional system (which is dominated by themes of sorcery and magic), although their exact role is uncertain. In any event, it had nothing to do with the relevant issues on the voir dire. More generally, and with great respect, Mr. Adam’s questioning of Dr. Swayze was completely ineffective. Most of his questions appeared to be the product of his delusional system and Mr. Adam failed to come to grips with the issue of whether the statement that was being tendered by the Crown was voluntary. Mr. Adam preferred to focus on the imposter issue, the significance of hair fibres in the interview room and whether Dr. Swayze was a real psychiatrist. While the cross-examination by amicus curiae was excellent (and very helpful to Mr. Adam), Mr. Adam seemed incapable of advancing a “defence” to the Crown’s application. Indeed, during a discussion about the admission of this statement (which would be very detrimental to Mr. Adam), Mr. Adam said he wished the statement admitted in order to prove his imposter theory and the role of the Canadian Intelligence Agency in this case.
[12] At the end of Dr. Swayze’s evidence on the voir dire, I took the liberty of asking him whether he had concerns about Mr. Adam’s fitness, given what had transpired. He simply answered “yes.”
[13] Following Dr. Swayze’s evidence, Ms. Richards for the Crown reconsidered her approach to certain aspects of this case. First, and very fairly, she decided not to seek to introduce Mr. Adam’s utterances as part of its case. Secondly, Ms. Richards advised that, should Mr. Adam be found guilty by a jury, she would apply to have Mr. Adam found not criminally responsible as a result of a mental disorder, in accordance with s. 16 of the Criminal Code. Finally, she applied under s. 672.23 of the Criminal Code for another fitness hearing.
[14] On November 15, 2012, I ruled that, while I had serious concerns about Mr. Adam’s fitness, on the material that was before me, I was not satisfied that “reasonable grounds” then existed to order that the issue of fitness be tried again (as required by s. 672.23). I reached this conclusion because, apart from Dr. Swayze’s straightforward response to my question about fitness, there was no other evidence that spoke directly to the issue. Had I directed a fitness hearing at that time, it would have been based largely on my own observations of Mr. Adam in court. Consequently, I gave Crown counsel, amicus and Mr. Adam the opportunity to adduce further evidence on the issue.
[15] On November 27, 2012, the Crown applied for an assessment order under s. 672.11 of the Criminal Code. Dr. Swayze testified on behalf of the Crown. Essentially, Dr. Swayze was of the opinion that, given Mr. Adam’s behaviour while in court, especially his inability to focus on the issues and his tendency to be easily diverted and disconnected from the proceedings, he would be unable to instruct counsel or defend himself. Dr. Swayze also expressed concern that Mr. Adam was deluded about my independence as the trial judge, even though he demonstrated a superficial understanding of the process and the role of the players in the process. Based on the evidence of Dr. Swayze, I concluded that there were reasonable grounds to order a psychiatric assessment, as required by s. 672.11 of the Criminal Code.
[16] During the assessment, Mr. Adam was interviewed by Dr. Swayze, which resulted in a report dated December 5, 2012. In this report, Dr. Swayze said that, during the assessment, Mr. Adam exhibited further bizarre behaviour, reflecting delusional thinking and hallucinations. Mr. Adam expressed a belief that amicus counsel was involved with the Canadian Intelligence Agency and working against him. Dr. Swayze was of the view that, on one level, Mr. Adam seemed to present as fit on the first two arms of the fitness test (i.e., being aware of the nature and object of the proceedings and the potential consequences), but he had some concerns about Mr. Adam’s distorted perceptions of my role of as the judge and that of amicus counsel. Dr. Swayze expressed the view that Mr. Adam was unfit to stand trial. He explained his conclusions in the following way:
His responses in the court, and during his most recent interview, are consistent with a gentleman consumed by his psychosis with an impaired ability to attend to other information, particularly and specifically the court proceedings. As such, it is my opinion that Mr. Adam, while intact as regards the first two arms of fitness, would not be able to instruct counsel, or participate meaningfully within the court proceedings. This is particularly problematic, given Mr. Adam’s paranoid position, vis-à-vis amicus, counsel, and other participants in the court. As such, he essentially is undefended, both externally and internally. His difficulties are not simply poor choices, but fundamental deficits in communication, both as regards internalizing, processing and expressing information. [emphasis added]
Based on this conclusion, I ordered that the issue of fitness be tried by a jury. Shortly afterwards, I appointed counsel to represent Mr. Adam at the trial of the fitness issue, as required by s. 672.24 of the Criminal Code.[^2]
[17] Lastly, on December 10, 2012, during discussions concerning the scheduling of the fitness hearing, Mr. Adam was called upon for his input. He advised me that he was being visited by “Canadian Intelligence” every night in jail and sought my assistance in preventing its recurrence. Again, Mr. Adam seemed to somehow connect me to this agency, which Mr. Adam believes was involved in the prosecution and the production of the videotaped statement, as discussed above.
III. Analysis
[18] The test for determining fitness to stand trial is relatively straightforward; however, its application is sometimes challenging. It has proven to be so in this case, both because of Mr. Adam’s fluctuating mental health status, and the vagaries involved in applying the test to the facts of this case.
[19] The test for unfitness to stand trial is now found in s. 2 of the Criminal Code, which provides (with my own emphasis added):
"unfit to stand trial" means 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, 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.
[20] Part XX.1 of the Criminal Code provides the procedural framework for the application of the test in s. 2. Of particular importance to this case, s. 672.22 creates a presumption of fitness of the accused person that may only be displaced by evidence proving unfitness on a balance of probabilities. The onus is on the party (prosecutor or defence) wishing to displace this presumption: s. 672.23(2). On the present application, the onus is on the Crown. Perhaps somewhat unusually, where the accused person is to be tried by a court composed of a judge and jury, the issue of fitness must be tried with a jury (even when the accused has not been placed in the charge of a jury for a trial on the indictment): see s. 672.26(a) and R. v. Pietrangelo (2001), 2001 24058 (ON CA). And that is the situation here. Two “fitness juries” were empanelled for the previous fitness hearings. The same procedure is required for the third fitness hearing.
[21] Returning to the test for fitness, the leading case is Regina v. Taylor (1992), 1992 7412 (ON CA), in which the Court established what has come to be known as the “limited cognitive capacity” test as the touchstone of fitness to stand trial. The Court adopted the following version of the “limited cognitive capacity” test (at p. 564):
Under the "limited cognitive capacity" test propounded by the amicus curiae, the presence of delusions do not vitiate the accused's fitness to stand trial unless the delusion distorts the accused's rudimentary understanding of the judicial process. It is submitted that under this test, a court's assessment of an accused's ability to conduct a defence and to communicate and instruct counsel is limited to an inquiry into whether an accused can recount to his/her counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence. It is not relevant to the fitness determination to consider whether the accused and counsel have an amicable and trusting relationship, whether the accused has been cooperating with counsel, or whether the accused ultimately makes decisions that are in his/her best interests.
In R. v. Taylor, supra, this test for fitness, which is rooted in the Court’s previous jurisprudence (Reference Re Regina v. Gorecki (No. 1) (1976), 1976 833 (ON CA), and R. v. Trecoce (1980), 1980 2854 (ON CA)), was accepted by the Crown as the correct approach in Canadian criminal law. However, the Crown argued that the test should be altered by (p. 566):
…[making] allowances for cases such as the present where the accused's mental disorder is so potent and extensive that it cannot be said that the person is capable of following the evidence, communicating rationally with counsel, or giving evidence which is responsive to the case for the Crown.
[22] The Court of Appeal rejected this position. In doing so, Lacourciere J.A. referred to the balancing involved in calibrating the test for fitness in the following passage (p. 566):
In order to ensure that the process of determining guilt is as accurate as possible, that the accused can participate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is maintained, and that, if necessary, the determination of a fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way. At the same time, one must consider that principles of fundamental justice require that a trial come to a final determination without undue delay. The adoption of too high a threshold for fitness will result in an increased number of cases in which the accused will be found unfit to stand trial even though the accused is capable of understanding the process and anxious for it to come to completion.
[23] Lacourciere J.A. also stressed the importance of the autonomy of an accused person to control his or her own defence and to present it as he or she chooses, “even if it means that the accused may act to his own detriment in doing so” (p. 567). In the end, the Court decided that the trial judge had erred by applying a higher standard for fitness, one that focused on the “analytical capacity” of the accused person. A new trial was ordered.
[24] Since R. v. Taylor, supra, the “limited cognitive capacity” test has been followed in all Canadian jurisdictions as the test for fitness: see Joan Barrett and Riun Shandler, Mental Disorder in Canadian Criminal Law (Scarb., Ont.: Carswell, 2006) (looseleaf), at p. 3-3. The test has also been adopted as the working standard for the operating mind aspect of voluntariness: see R. v. Whittle, supra, at pp. 25-26.
[25] However, and with respect, the test articulated in R. v. Taylor, supra, is said to be problematic in certain cases. See the balanced discussion of this issue in Barrett and Shandler, supra, at pp. 3-7 to 3-14. Some commentators believe that the threshold is too low, especially as it relates to the third arm – instructing counsel. In Hy Bloom and Richard D. Schneider, Mental Disorder and the Law: A Primer for Legal and Mental Health Professionals (Toronto: Irwin Law, 2006), the authors explain why the test sets the bar too low (p. 77):
The test consequently fails to filter out a number of different accused who are probably not fit, and, having regard to the purpose and intent of the fitness rules to begin with, should probably not be proceeding to trial.
The authors attribute the shortcomings of the existing test to its singular focus on cognitive functioning, to the neglect of other constituent elements of mental illness, such as judgment, motivation, insight and emotional status. Moreover, it is also said that, while the “analytical capacity test” respects the individual autonomy of accused persons to make their own decisions, it is indifferent as to whether these decisions are rational or not: see R. v. Xu, [2007] O.J. No. 5796 (O.C.J.).
[26] In another article (Richard D. Schneider and Hy Bloom, “R. v. Taylor: A Decision Not in the Best Interests of Some Mentally Ill Accused” (1995), 38 C.L.Q. 183), the same authors advance the case for a test that incorporates some notion of whether the accused person’s best interests are considered, but in a particular way. As the authors explain at p. 200:
As with any test for competency, the concern is not so much that the individual exercise good judgment and make the right choice, but that his/her capacity to judge and choose has not been fettered by mental illness. [emphasis in the original]
I agree with these concerns about the application of the current fitness test and worry that someone like Mr. Adam might be forced into a trial without being able to properly defend himself.
[27] But more recently, in R. v. Morrissey (2007), 2007 ONCA 770, the Court of Appeal addressed the issue of fitness again, in a manner that might allay some of the concerns about the implications of R. v. Taylor, supra. The precise issue in that case concerned the relationship between testimonial capacity and fitness. Writing for the Court, Blair J.A. recognized the concern among some in the legal and psychiatric communities about the adequacy of the limited cognitive capacity test, as discussed above. Nevertheless, he reaffirmed the authoritative value of R. v. Taylor, supra. As Blair J.A. wrote of the “limited cognitive capacity” test (at p. 14):
It requires only a relatively rudimentary understanding of the judicial process - sufficient, essentially, to enable the accused to conduct a defence and to instruct counsel in that regard. It is in that sense that the accused must be able "to communicate with counsel" and relate the facts concerning the offence.
He subsequently encapsulated the test in the following way at p. 15:
…and Taylor stands for the propositions that (a) the “limited cognitive capacity” test governs the determination of fitness to stand trial, and (b) that this test does not require the accused person to be capable of giving instructions to counsel that are in his or her best interests.
[28] However, later in his reasons, Blair J.A. addressed the foundations of the fitness to stand trial rule. Speaking in broader terms, he stressed the basic notions of fairness that are inherent in the concept of fitness in s. 2 of the Criminal Code. These thoughtful comments from his judgment resonate in this case (at p. 17):
An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice such as the right to be present at one's own trial and the right to make full answer and defence: see R. v. Steele (1991), 1991 3882 (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.) at pp. 172-173 and 181; R. v. Roberts (1975), 1975 1394 (BC CA), 24 C.C.C. (2d) 539 (B.C.C.A.). Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness. [emphasis added]
See also R. v. Krivicic, 2011 ONCA 703, at para. 36.
[29] Applying the law to the facts of this case is challenging. It is easy to become pre-occupied with the three “arms” of the fitness test in s. 2 of the Criminal Code, but then lose sight of the elemental questions raised by a fitness inquiry. Drawing on the passage from R. v. Morrissey directly above, the fitness inquiry demands an assurance that, despite suffering from a mental disorder, the accused person is able to receive a fair trial. In this context, meaningful participation is required. For an accused person in a criminal trial, meaningful participation can only mean the ability to defend oneself. This is reflected in the opening words of s. 2, which bear repeating: “‘unfitness to stand trial’ means unable on account of mental disorder to conduct a defence…or to instruct counsel to do so.” It cannot seriously be contended that rationality has no role to play in this determination. Moreover, the three arms of the fitness test (in s. 2(a) to (c)) are not free-standing fitness criteria to mechanically applied; instead, they are tools to assist in determining whether a mentally ill accused person is able to defend him or herself.
[30] Accordingly, the question in this case becomes: because of his mental disorder, is Mr. Adam able to meaningfully participate in his trial by defending himself? For the following reasons, I concluded that reasonable grounds exist to believe that, due to the current state of his mental illness, Mr. Adam is unable to properly defend himself.
[31] As Dr. Swayze conveys in his opinion, Mr. Adam appears to satisfy the first two criteria for fitness (i.e., to understand the nature and object of the proceedings and to understand the possible consequences of the proceedings). But, according to Dr. Swayze, even this understanding is somewhat superficial. Central to Mr. Adam’s delusional system is some unspecified role of the Canadian Intelligence Agency. Mr. Adam has revealed a belief that this organization is involved in the killing of Ms. Belekova, the production of a videotaped confession (ostensibly of Mr. Adam), the conduct of amicus curiae, the administration of his anti-psychotic medication and my role as the trial judge. The latter, concerning my place and function in the criminal trial process, is a fundamental distortion of reality and leads me to be concerned about whether Mr. Adam’s understanding of the nature and object of the proceedings is authentic.
[32] The more difficult issue in this case is whether Mr. Adam is able to instruct counsel. This has been at the heart of the previous fitness hearings. As I have already explained, Mr. Adam has been unable to maintain a relationship with defence counsel. That is why amicus curiae was appointed. The role of amicus may differ from case to case, in order to suit the exigencies of the situation: see R. v. Samra (1998), 1998 7174 (ON CA). In this case, while Mr. Murphy and Mr. Morris have often advanced positions to the benefit of Mr. Adam, and although they have advised him of his rights from time to time when I have asked them to do so, neither of them are receiving instructions from Mr. Adam in any meaningful sense. And this is just as well, because Mr. Adam has repeatedly expressed his displeasure with their participation in his trial.
[33] But the fact of the matter is that Mr. Adam is self-represented. This is unlikely to change. As such, at trial, he will be entitled to ask questions of all Crown witnesses, call his own witnesses, testify on his own behalf, make submissions on all issues that arise and address the jury. With respect, and as I have explained above, Mr. Adam has been unable to act in any way that is remotely effective. In fact, some of his behaviour has been self-harming, in a legal sense. According to Dr. Swayze, this is because Mr. Adam is consumed by his mental illness, rendering him unable to attend to and respond appropriately to information arising from the court proceedings. At times, his responses suggest that he is either disinterested in, or oblivious to, what transpires in court. While Mr. Adam is present in court in both body and in voice, he is more of a confused spectator, rather than a meaningful participant in his own case.
[34] It is unfair to compare Mr. Adam’s situation to the fabled accused person (referred to in the literature and many of the decisions) who is bent on making bad decisions. The system accepts that, based on notions of personal autonomy, accused persons are free to make their own tactical decisions, whether good or bad. But this acceptance is predicated on the underlying assumption that the accused person is unfettered by any sort of disability. That is why appellate courts are disinclined to allow accused persons to complain about poor tactical decisions after-the-fact, when things did not go as planned. But Mr. Adam does not stand in the same position. This is confirmed by Dr. Swayze’s opinion that: “His difficulties are not simply poor choices, but fundamental deficits in communication, both as regards internalizing, processing and expressing information.”
[35] On a more fundamental level, trial judges must always be concerned with preventing miscarriages of justice. A miscarriage of justice does not always involve actual prejudice to an accused person. Public confidence in the administration of justice may also be shaken and undermined by the appearance of unfairness: see R. v. Cameron (1992), 1991 7182 (ON CA), R. v. Morrissey (1995), 1995 3498 (ON CA), R. v. F.E.E. (2011), 2011 ONCA 783, and R. v. Kakegamic (2010), 2010 ONCA 903. The voir dire in this case provided a good opportunity to observe Mr. Adam in action. If the same type of conduct or behaviour is repeated at trial in front of a jury (with Mr. Adam pursuing his themes of sorcery, magic and hair fibres), the proceedings will quickly degenerate into a cruel spectacle. A reasonable observer viewing this first-degree murder trial firsthand would surely be troubled by the obvious fact that Mr. Adam is unable to defend himself, due to a debilitating mental illness. The appearance of justice would be irretrievably tarnished.
IV. Conclusion
[36] It is for this basic reason, that Mr. Adam appears to be incapable of properly defending himself, that I directed that the issue of fitness be determined once again. The jury will no doubt benefit from a far more robust evidentiary record than the one available to me on this application. Nevertheless, it is my intention to instruct the fitness jury in a manner consistent with these reasons.
TROTTER J.
Released: January 17, 2013
DATE: 20130117
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROBLE ADAM
REASONS FOR JUDGMENT
TROTTER J.
Released: January 17, 2013
[^1]: Mr. Murphy has since been joined by Mr. Morris. Both have provided excellent assistance to me in this case.
[^2]: I appointed Mr. David North, an experienced Toronto criminal lawyer, to represent Mr. Adam on the fitness hearing. On the previous two fitness hearings, Mr. Adam was represented by Mr. Chris Hynes. However, from time to time, Mr. Adam has made disparaging remarks about Mr. Hynes, suggesting that he was not acting in Mr. Adam’s best interests. In my view, these remarks were without foundation. Nevertheless, because counsel appointed under s. 672.24 is formally counsel for the accused (and not amicus curiae), and in light of Mr. Adam’s expressed views, I decided that it would be best to appoint a new lawyer for the new fitness hearing.