SUPERIOR COURT OF JUSTICE
CITATION: R. v. Brown 2015 ONSC 3211
DATE: 20150521
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RAPHAEL BROWN
Christine Jenkins, for the Crown
Deepa Balachandran, for Raphael Brown
Tom LeRoy, Amicus Curiae
J.D. McCOMBS J.
OVERVIEW
This case illustrates the difficulties sometimes faced by judges in sentencing persons who may be suffering from serious mental health issues.
Raphael Brown was convicted on March 3, 2015 of a single count of criminal harassment and acquitted of assault and breach of probation. He has a lengthy criminal record consisting of over twenty-five convictions, all related directly or indirectly to a single complainant, T.H. This trial also involved the same complainant. He and T.H. had been in a relationship and they are the parents of twin daughters born in 2007.
The evidence showed that Mr. Brown is psychologically volatile and that his behavior can sometimes be alarming.
At the outset of the trial, I was informed that Mr. Brown had discharged several lawyers and that Legal Aid Ontario had refused to fund any further changes to counsel. Mr. LeRoy, a barrister employed by Legal Aid Ontario, had been appointed under Criminal Code s. 486.3 to cross-examine the complainant.
After some discussion, Mr. Brown agreed to have Mr. LeRoy act as his defence counsel at trial, rather than in the limited role of cross-examiner of the complainant.
Following a re-election to be tried by judge-alone, the trial proceeded, and as I have indicated, the result was that Mr. Brown was acquitted of assault and breach of probation, but convicted of criminal harassment.
Mr. Brown became very agitated upon learning that he had been convicted of criminal harassment, and made a number of statements that reinforced my concerns about his mental health.
After hearing submissions from the Crown and defence, I issued an order on March 6, 2015 under s. 21 of the Mental Health Act for a psychiatric assessment and report, and remanded Mr. Brown for three weeks to March 26, 2015.
In his report, Dr. Angus McDonald, a very experienced forensic psychiatrist, expressed the view that the “most likely diagnosis” for Mr. Brown was paranoid schizophrenia (p. 10). But Dr. McDonald indicated that he could not “assign this diagnosis with complete certainty” because he did not have the opportunity for a full and detailed inpatient assessment. Dr. McDonald concluded that:
Perhaps more likely to be effective in the long-run, would be a thorough inpatient assessment, which would likely have to be carried (sic) at a facility other than CAMH, especially with respect to issues relating to his capacity to understand appreciate the nature and consequences of his behavior resulting in now a large number of convictions in an individual likely not of “bad character”, but therein of a serious mental disorder.
On the March 26 return date, I remanded the matter to April 7, 2015 so that Dr. McDonald could attend to give evidence.
In the interim, the Crown provided notice of an intention to seek an Assessment Order under s. 672.11 (b) of the Criminal Code. That section confers jurisdiction on the court to order a convicted offender to be remanded for a psychiatric assessment of up to 60 days where the court has reasonable grounds to believe that such evidence is necessary to determine whether the accused was, at the time of the commission of the offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16 (1).
On the April 7, 2015 return date, Mr. Brown advised that he had lost confidence in his lawyer, Mr. LeRoy, and wanted to discharge him. He stated that he had reconsidered his decision to discharge his former lawyer, Ms. Balachandran, and wanted her to represent him once again. After considering the implications of Mr. Brown’s decision and hearing from counsel, I decided that the interests of justice were best served if Mr. LeRoy were to remain involved in the trial in the capacity of amicus curiae.
Dr. McDonald testified on April 7 (see transcript, ex. 2 at sentencing hearing). After hearing from him and considering submissions of counsel, I granted the Crown’s motion and ordered that Mr. Brown be remanded to Waypoint Centre for Mental Health Care for up to 60 days under s. 672.11 for an assessment of the mental condition of Mr. Brown, as I considered it necessary to determine the issue of his criminal responsibility. The return date was fixed at June 6, 2015.
On April 13, 2015, I received a FAX transmission from Waypoint Centre for Mental Health Care over the signature of Dr. William Komer, Consultant Forensic Psychiatrist indicating that an assessment would not be completed.
The facsimile transmission reads as follows:
Further to an Assessment Order dated April 7, 2015, Mr. Brown was admitted to the Waypoint Centre for Mental Health Care in Penetanguishene on April 9, 2015. Mr. Brown refused to be assessed unless the interviews were audio recorded. As a result, I am unable to complete an assessment of Mr. Brown.
I arranged to move the June 6 return date forward, out of concern that Mr. Brown would otherwise have to remain in custody for two more months, with neither diagnosis nor treatment,
With counsel’s cooperation, the case was moved forward to May 6, 2015. On that date, Mr. Brown’s former counsel, Ms. Balachandran, attended. She agreed to act for Mr. Brown on the sentencing proceedings. Mr. LeRoy, who had been of great assistance to Mr. Brown and to the court, offered to remain as amicus in order to assist Ms. Balachandran to understand what had taken place during the trial. Ms. Balachandran expressed her appreciation for Mr. LeRoy’s willingness to assist, and agreed that in the unusual circumstances of this case, it was appropriate that Mr. LeRoy remain on the record as amicus.
I remanded Mr. Brown to May 14, 2015 and asked that Dr. McDonald be asked if he would be willing to inquire and learn more about what had occurred at Waypoint, why no assessment had been completed, and then attend to advise the court.
Dr. McDonald agreed, and came to court and testified on May 14, 2015.
Dr. McDonald confirmed that he had spoken to Dr. Komer over the telephone. He indicated that he was “perplexed” at the view Dr. Komer had taken - that because of Mr. Brown’s unwillingness to cooperate, an assessment could not be completed. Dr. McDonald testified that it is common for a person with paranoid ideation to be suspicious and to, at least initially, refuse to cooperate in the assessment. In Dr. McDonald’s view, refusal to cooperate did not mean that an assessment could not have been undertaken. Indeed, as I understand it, an accused with a mental disorder very often refuses to cooperate but that this would not preclude the completion of an assessment.
THE ORIGINAL ASSESSMENT ORDER MADE ON APRIL 7, 2015
I turn now to the Assessment Order issued on April 7, 2015.
S. 672.2 (1) of the Criminal Code, which provides:
An assessment order may require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused.
- S. 672.2 (2) provides:
As assessment report shall be filed with the court or Review Board that ordered it, within the period fixed by the court or Review Board, as the case may be. (emphasis added)
It can be seen that once an order has been made under s. 672.11, an assessment report must be prepared for the use of the court. It is mandatory.
All counsel agree that the three-sentence letter sent by fax is not an assessment as contemplated by s. 672.11. All counsel agree that the mandatory order issued on April 7 has not been complied with.
DISCUSSION AND CONCLUSION
Given the CAMH report prepared by Dr. Angus McDonald, supplemented by his testimony, Mr. Brown’s unwillingness to cooperate is hardly surprising and indeed, not uncommon for individuals with paranoid ideation.
Mr. Brown’s prior criminal convictions all relate to his relationship with the complainant and apparently to his determination to maintain contact with their twin daughters.
It is significant that at the time he committed the offence now before me, Mr. Brown had a lawful court order issued on consent that permitted him access to his children, “as agreed between the parties”.
It is clear from the evidence at trial that Mr. Brown was under the belief - reasonable in the circumstances - that he was entitled to see his children. Indeed, his counsel on the custody issue apparently advised him that T.H. was not entitled to deny him access to his children.
I do not minimize the seriousness of Mr. Brown’s conduct. I simply point out that apart from Mr. Brown’s fixation on Ms. H. and their daughters, there is no evidence that he acts out in an antisocial manner.
Determining an appropriate disposition in cases involving persons who suffer from mental illness is a very difficult challenge for the criminal justice system, and particularly so in the circumstances of this case.
Mr. Brown has been in custody since February 1, 2014 - approximately 15 ½ months. With credit for time already served in custody at a ratio of 1.5 days for each day in custody, he has served the equivalent of about 23 ½ months.
My responsibility is to determine the appropriate disposition; one that ensures protection of the public, while at the same time gives full consideration of the degree of moral blameworthiness of the offender.
I am not prepared to make that difficult determination without having all of the relevant information. As matters presently stand, I do not have the information I require.
I accept Dr. McDonald’s opinion that the most reliable psychiatric assessment can only be obtained through a thorough evaluation. What is clearly needed is a period of hospitalization where Mr. Brown can be observed over a period of time, and where there can be a deep look into his background. Mr. Brown himself is not a helpful historian and to sentence him without meaningful input from the psychiatric community would do him a disservice and may well put the public at risk.
Therefore, having concluded that my original order has not been complied with, I am issuing another order under s. 672.11, and respectfully requesting that a fulsome evaluation be done in order to assist the court.
I direct that an Assessment Order under the seal of this court be taken out by counsel. The order, under s. 672.11, shall be in force for 60 days from today. The order shall be directed to the attention of the Psychiatrist in Chief at Waypoint Centre for Mental Health Care, Dr. James Karagianis. The order shall contain the following direction, under the authority of ss. 672.2(1) & (2) of the Criminal Code of Canada:
a) The person conducting the assessment shall submit to this court in writing an assessment report on the mental condition of the accused.
b) The assessment report shall be filed with the court within the period fixed by the court.
- The following materials shall accompany the Assessment Order:
Reasons for Judgment Delivered Orally March 3, 2015
Copy of trial exhibit #1
(”Agreed Statement of Facts Pre-Charge Conduct”)
Copy of Family Court Order Raphael Brown and T.H. Ex. 3 on trail
Copy of Family Court Order Raphael Brown and T.H. Ex. 6 on trial
Probation Orders Raphael Brown (exhibit 4 on trial)
Pre-sentence Reports Raphael Brown
Court Transcripts (October 18, 2007, October 22, 2007, November 6, 2007, April 4, 2008, April 3, 2009, September 1, 2009, November 18, 2009, November 17, 2011)
Copies of trial exhibit #7 (various emails sent to T.H. by Mr. Brown during the relevant period)
Copy of sentencing hearing Ex. 1, the report prepared by Dr. Angus McDonald, dated March 25, 2015
Copy of sentencing hearing Ex. 2, transcript of proceedings on April 7, when Dr. McDonald gave evidence in court
Copy of sentencing hearing Ex. 3, the two-page FAX transmission dated April 13, 2015
Copy of sentencing hearing Ex. 5 (progress note Dr. Komer)
Transcript of May 14 testimony of Dr. McDonald
Collateral Sources Contact Information (includes Mr. Brown’s brother’s telephone number and also the manner to contact the complainant)
Copy of these reasons
I am aware that compliance with the Assessment Order will be challenging, and that there are limitations on available resources. But I am confident that the experts at Waypoint Mental Health Centre will make their best efforts to provide the court with a comprehensive assessment of the state of Mr. Brown’s mental health now and at the time of the events in question. In doing so, I will be in the best position to fulfil my responsibility to determine a disposition that ensures protection of the public while at the same time respects the court’s obligation of fairness to Mr. Brown.
I have remanded Mr Brown to July 20, 2015, to await the report from Waypoint. If Mr. Brown is sent back before that date, then his case shall be moved forward so that the appropriate disposition can be determined without unnecessary delay.
I am advised that Ms. Louise Moreau, administrative assistant at Waypoint has indicated that a bed will not be available until June 8, 2015. Respectfully, this is not acceptable. The original Assessment Order was issued on April 7. It was not complied with. Mr. Brown was seen on April 9 and promptly returned to custody with no assessment having been conducted. This failure has necessitated further protracted hearings and after hearing evidence, it has been necessary to issue a new Assessment Order. Further, if Mr. Brown is not seen until June 8, two months will have passed. This is obviously not acceptable.
Accordingly I direct that Mr. Brown be transported to Waypoint forthwith, and in any event, no later than May 27, 2015 for psychiatric assessment in accordance with the order of this court.
J. D. McCombs J.
RELEASED: May 21, 2015