R. v. Michael, 2015 ONSC 148

COURT FILE NO.: 6561/14

DATE: 20150107

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael

BEFORE: E.M. Morgan J.

COUNSEL: J. Smith Joy, for the Crown

U. Kancharla, for the Defendant

HEARD: January 7, 2015

ENDORSEMENT

[1] At the outset of the third day of trial on charges of assault and threatening, defense counsel, Ms. Kancharla, has made an application under section 672.11 of the Criminal Code for an assessment of the mental condition of the accused, Mr. Michael. She submits that there are reasonable grounds to believe that a psychiatric assessment is necessary to determine whether Mr. Michael is unfit to stand trial.

[2] Section 2 of the Criminal Code defines the phrase “unfit to stand trial” in terms of a three part test. The question is whether the accused is able to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel.

[3] In support of the application, Ms. Kancharla called Mr. Michael to the stand. He was asked a series of questions by Ms. Smith Joy, on behalf of the Crown, as well as by Ms. Kancharla. Mr. Michael exhibited no difficulty in understanding or responding to any of the questions posed to him, and articulated his answers coherently and intelligently. He made it clear that he does not agree with Ms. Kancharla’s request that he be sent for assessment. He was also quite specific in stating that he comprehends the proceedings and would like to get on with the trial.

[4] After hearing Mr. Michael’s testimony, Ms. Smith Joy submitted that, in the Crown’s view, it is evident that Mr. Michael understands the nature or object of the proceedings and the possible consequences of the proceedings. Ms. Kancharla essentially agrees with that position; she submits, however, that the problem lies with Mr. Michael’s inability to communicate with her as counsel. In short, it is Ms. Kancharla’s view that Mr. Michael suffers from a form of paranoia, and that he is under the delusion that she has somehow aligned herself with the Crown rather than with his interests.

[5] The Court of Appeal observed in R v Taylor (1992), 1992 7412 (ON CA), 77 CCC (3d) 551, at para 44, that even if an accused is delusional, “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.” The test for fitness is one of “limited cognitive ability”; in other words, it 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.” Ibid.

[6] Mr. Michael made a rather positive impression as a witness on this application. He certainly understands the accusations leveled against him and that the incident in issue took place on the TTC. When asked if he understood the judge’s role in these proceedings, he ventured that it is “[t]o make sure that justice is served fairly on both sides, either on the victim’s or the defendant’s.” I couldn’t have said it better myself.

[7] When asked about the role of defense counsel, he testified that, “[n]ormally lawyers are supposed to be on the defense side, but this has not been the case with Ms. Uma Kancharla.” Ms. Kancharla takes this as a sign of paranoia on Mr. Michael’s part; I take it as a sign of frustration with his lawyer. Indeed, he said so himself, indicating as an example that his counsel had failed to move for a change in his bail conditions during the two years in which he was waiting for trial, despite his good behaviour during that time.

[8] Whether there were grounds to alter the conditions of his interim release is not the point here. Rather, the point is that Mr. Michaels is, in his own words, “totally disappointed” with the lawyering process by defense counsel. There is little doubt in my mind that Mr. Michaels is able “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”: R v Morrissey (2007), 2007 ONCA 770, 227 CCC (3d) 1, at para 27 (Ont CA).

[9] Mr. Michael and Ms. Kancharla are obviously not getting along well. However, as the Court noted in Taylor, at para 45, “[t]he fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.”

[10] I have seen no reason to medicalize the problems that Mr. Michael is having with his counsel. Mr. Michael may be experiencing discontent with the way he has been represented, and he may not have hesitated to express this to Ms. Kancharla, but that does not give rise to a need for an assessment of his mental capacity. Mr. Michael knows what this trial is all about and is anxious to get on with it without further delay.

[11] I hasten to say here that Ms. Kancharla has, from my point of view, conducted Mr. Michael’s defense in the way that one would expect competent counsel to do. Of course, I do not know the conversations that have transpired between her and Mr. Michael, but I have discerned nothing untoward in the trial.

[12] It may be that Ms. Kancharla has had to persuade Mr. Michael that his approach to the defense will not be legally effective, but that is her job. As the Quebec Court of Appeal pointed out in R v Steele (1991), 1991 3882 (QC CA), 63 CCC (3d) 149, at para 92, “the mere fact that an accused may not be capable of acting in his best interests during his trial is not sufficient to warrant a finding that he is unfit to stand trial.” If there are differences in approach or trial strategy between Mr. Michael and his counsel, that is for them to work out between them.

[13] In my view, Mr. Michael disagrees with his lawyer. He is not, however, unable to communicate with his lawyer as that phrase is used in the Criminal Code. Accordingly, there are no reasonable grounds to believe that an assessment of Mr. Michael’s fitness to stand trial is necessary.

[14] The application under section 672.11 is dismissed.

Morgan J.

Date: January 7, 2015