A. INTRODUCTION

[1] The two accused, Chiheb Esseghaier and Raed Jaser (hereinafter, Esseghaier and Jaser) were convicted of a number of serious terrorism offences after a lengthy trial by jury. In particular, it was alleged at trial that they had been engaged in two conspiracies, as follows: a conspiracy to derail a passenger train for the benefit of a terrorist group; and a conspiracy to commit murder for the benefit of a terrorist group. Esseghaier was convicted of both conspiracies and Jaser was convicted of the second conspiracy. Both accused were also convicted of participating in the activities of a terrorist group. The verdicts were delivered by the jury on March 20, 2015 and there have subsequently been a number of remands pending sentence. The two accused are now before me at a sentencing hearing.

[2] A substantial body of evidence was called at the sentencing hearing, both viva voce and documentary. That evidence is now complete. All that remains is to hear submissions on sentence and to deliver my Reasons for Sentence.

[3] However, a collateral issue has arisen in the course of the sentencing hearing. It concerns the fitness of Esseghaier and whether there should be a psychiatric assessment for that purpose pursuant to s. 672.11 of the Criminal Code or pursuant to some other power such as s. 21 of the Ontario Mental Health Act. The issue was initially raised by amicus and, eventually, it was joined in by the Crown. It is important to stress that the issue before me is not whether Esseghaier was fit at the time when his trial commenced or concluded, which was some four to six months ago. Rather the issue is whether he is fit now, at the time of sentencing. More precisely, the issue is whether I should inquire into the issue of his present fitness by ordering a psychiatric assessment.

[4] These are my Reasons for Judgment in relation to that narrow collateral issue.

B. FACTUAL AND PROCEDURAL BACKGROUND TO THE FITNESS ISSUE

[5] I was assigned the task of “case management judge” in this case on February 17, 2014, pursuant to s. 551.1 of the Criminal Code. The matter first came before me on February 21, 2014. Since that date the two accused have repeatedly appeared before me. I heard a number of relatively complex pre-trial Motions, beginning on March 14, 2014. Once the motions were completed, jury selection commenced on January 23, 2015. The trial then lasted for eight weeks. There have been a number of further appearances before me between the date when the verdicts were delivered, on March 20, 2015, up until July 15, 2015 when the evidence concluded on the sentencing hearing.

[6] It can be seen that Esseghaier has been appearing before me for the last seventeen months. He has been a challenging accused and, on two occasions, there have been significant difficulties and I have had to remove him from the court room pursuant to the powers set out in s. 650(2)(a). However, I allowed him to return to the court room on both occasions, after a short absence, and the difficulties were not repeated. I always understood why the difficulties had arisen, I was able to discuss them with Esseghaier, and we were able to resolve them.

[7] Two significant early developments, that are relevant to the present issue of fitness, were as follows: first, Esseghaier insisted on representing himself and, as a result, I appointed amicus; second, Esseghaier took the position that his trial should be conducted under the Holy Qur’an and, accordingly, he brought a Motion before me seeking this form of relief, which I refused. My Reasons for Judgment in relation to the above two developments in the case are reported at: R. v. Esseghaier and Jaser, 2014 ONSC 2277; R. v. Esseghaier and Jaser, 2014 ONSC 3885.

[8] The rationale for Esseghaier’s decision to represent himself is closely tied to his insistence that he be tried under the Holy Qur’an, and not under the Criminal Code. As I explained in my Reasons on the Motion appointing amicus (at paras. 11-14):

The facts relating to Esseghaier’s present self-represented status are relevant to the Motion seeking the appointment of amicus. At the time of his early remand appearances in the Ontario Court of Justice, and on his remand appearances in this Court, Esseghaier has consistently taken the position that he would agree to be represented by counsel but only on certain terms. He has never been able to find counsel who would agree to his terms and it is highly unlikely that he will find such counsel. As a result, he has remained self-represented throughout and has never retained counsel.

The terms that Esseghaier has set as the basis for retaining counsel were explained by him on a May 23, 2013 remand appearance in the Ontario Court of Justice, as follows:

I am agreeing to have a lawyer. I have no problem, but I wish that this lawyer he collaborate with me regarding the reference. Because I need a Holy Book as a reference for my defence.

On the next remand appearance in the Ontario Court of Justice, on June 3, 2013, Esseghaier explained that he had met with a lawyer but that the lawyer would not agree to the proposed terms. Esseghaier stated:

My request regarding the lawyer is, I want that the lawyer, he has mean to change the reference of my judgment, for [from?] all the laws made by humans to the laws of the Holy Book. That’s my needs. So I cannot take a lawyer that he will not [be] able to fulfill my need … I refuse the last lawyer. The last lawyer, he write, he had a piece of paper, he write and he sign that he is not able to convince the Court to change the reference of my case from the Criminal Code to the Holy Qur’an. The lawyer, he said to me, “I am not able to fulfil your needs”. So what I can do? I cannot accept him. [Emphasis added.]

I am advised that the judges of this Court, on subsequent remand appearances, repeatedly urged Esseghaier to retain counsel but he consistently maintained the same position. On the two appearances before me he explained at length that the Criminal Code, and Canadian law generally, are laws “made by man” and that “man is imperfect”. On the other hand, the Holy Qur’an is “the law of God” and “God is perfect”. He illustrated the imperfection of Canadian law by pointing to the fact that it permits adultery and the charging of interest whereas God made adultery and the charging of interest unlawful. Given the above premises, Esseghaier insists on being tried pursuant to God’s law and not pursuant to Canadian law. He has advised me that he will bring a Motion, seeking to achieve this “change in reference” for his trial, from the Criminal Code to the Holy Qur’an. He has further advised me that he “refuses counsel” who follow the Criminal Code instead of following the Holy Qur’an.

[8] In my view, the basis for Esseghaier’s decision to represent himself is completely coherent. Although it may be unwise, and contrary to his best legal interests, it is based on his decision to give primacy to his religious interests and beliefs. He has a constitutionally protected right to make this choice, and to reject representation by Canadian lawyers who follow the law of Canada. See: R. v. Swain (1991), 1991 104 (SCC), 63 C.C.C. (3d) 481 at 505-6 (S.C.C.); R. v. Vescio (1948), 1948 53 (SCC), 92 C.C.C. 161 (S.C.C.); R. v. Rowbotham et al (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 at 63 (Ont. C.A.); R. v. Cunningham (2010), 2010 SCC 10, 254 C.C.C. (3d) 1 at para. 9 (S.C.C.).

[9] I should add that Esseghaier is a highly educated intelligent adult man. He has a number of university degrees, including a Masters degree and he has completed the first part of a PhD degree in biotechnology. He has attended academic conferences and he has published a number of scientific articles in various journals. He speaks a number of languages. He has always been forceful and articulate in presenting his position to me in Court. If I do not understand something that he has said, he always repeats it and clarifies the point until I understand it. He is quick and astute to notice the slightest inconsistency, or any point that he thinks favours his position, in anything that I have said or in any of my written judgements. Finally, he had no difficulty presenting the one pre-trial Motion that was important to him, and in following my instructions concerning pre-trial Motion procedure. This was explained in my Reasons on the Motion concerning the application of the Holy Qur’an (at paras. 2-3):

Esseghaier is self-represented. This status is due to Esseghaier’s position that he will not be represented by any counsel who accepts the Criminal Code, rather than the Holy Qur’an, as the governing law for this trial. He has been unable to find counsel who will agree to these terms concerning the appropriate governing law for the trial. I advised Esseghaier that he should bring a Motion, on his own behalf, seeking the “change in reference” that he seeks for his trial, from the Criminal Code to the Holy Qur’an.

Esseghaier has now brought on the suggested pre-trial Motion. He initially filed a five page document, setting out the substance of his argument. I asked him to file a further document, clarifying the relief or remedy that he was seeking. He did this by filing a supplementary one page document that succinctly set out the relief sought. The Crown and Mr. Norris filed brief written responses. I then heard oral argument for about an hour, on June 23, 2014, and reserved judgment.

[10] In my Reasons for Judgment on this Motion concerning the applicable law for the trial, I quoted various passages from Esseghaier’s written Motion materials. I also noted that the Preamble to the Constitution Act, 1982 recognizes “the supremacy of God”, a point which Esseghaier noted when he read my Reasons and which he quickly drew to my attention on the next appearance in Court. The implication of Esseghaier’s Motion, although he did not explicitly say this, was that he believed he would not be seen as a criminal under the Holy Qur’an, that is, he would either not be charged at all with the present terrorism offences or he would, at least, have viable defences. In other words, there was a rational basis for his Motion and, once again, it was based on his strong religious beliefs.

[11] In my view, there was nothing in the eleven month long pre-trial period that even vaguely suggested that Esseghaier might be unfit to stand trial. Neither the Crown, nor amicus, nor counsel for Jaser ever suggested that there was an issue as to fitness or that a psychiatric assessment might be appropriate. The question never even crossed my mind.

[12] On the last day of pre-trial proceedings, that is, on Thursday, January 22, 2015, the first real difficulties with Esseghaier arose. A final pre-trial Motion was being argued by counsel for Jaser and the jury panel was to arrive and jury selection was to begin the next day, that is, on Friday, January 23, 2015. At the beginning of the day, on the Thursday, Esseghaier had to be brought from his cell at the Detention Centre against his wishes. He advised me, in brief summary, that he had been thinking about the prospect of having to attend at his trial, and about the fact that the trial would be conducted pursuant to the Criminal Code as a result of my Ruling dismissing his pre-trial Motion concerning the Holy Qu’ran. He advised me that he did not wish to attend court, in these circumstances, and that he would not attend court. He expressed the view that attendance at court would signify assent or approbation to the jurisdiction of the Court and that he did not consent to being tried under the Criminal Code.

[13] I responded that he had no choice but to attend court because s. 650(1) stated that he “shall be present”, although our law did not require that he participate in his trial. Esseghaier was adamant that he would not voluntarily attend his trial, if it was to be conducted under the Criminal Code, and he threatened to disrupt the trial and to even jump out of the prisoner’s box if necessary. After a lot of forceful and repetitive argument, I was satisfied that s. 650(2)(a) had become engaged and I excluded Esseghaier from the court room. He was placed in a cell with a video and audio link to the court room, so that he could see and hear the proceedings if he wished.

[14] The final pre-trial Motion was then completed, without any further disruption. At the end of the day, Esseghaier was returned to his cell at the Detention Centre. The next day, Friday, I kept the jury panel out of the court room and had Esseghaier brought back into the court room. There was a lengthy exchange between Esseghaier and myself that continued for about an hour and a half. Again in brief summary, he told me that he had reflected on the previous day’s events and he had a proposal to make. He would attend his trial, and would not disrupt his trial, provided I noted his objection to the jurisdiction of the Court on the record at the start of each day and provided I allowed him a limited opportunity to give advice to the Court from time to time on matters that were important to him, which all revolved around the laws of God and spiritual or religious issues that might arise during the trial. There was considerable negotiation about the detail and meaning of these proposed terms but an agreement was eventually reached.

[15] All counsel, and Esseghaier, agreed that I would put his objection to jurisdiction on the record each morning and would state that he “considered himself as a visitor who gives sincere advice to the people of the court and not as an accused who defends himself at a criminal trial”. On these terms, he advised that he would remain mute and would not participate in any of the essential aspects of his trial that are governed by Canadian law, such as selecting the jury, entering a plea, questioning witnesses, and making a jury address. As the trial progressed, Esseghaier abided by this agreement with two exceptions: first, he wrote out a short closing address which he gave to me and to counsel in advance and which he asked amicus to read to the jury; second, there was one instance of further misconduct which occurred on the first day of jury selection.

[16] The one instance of misconduct, on January 23, 2015, arose because I only allowed a short lunch recess of about fifty minutes. This was apparently not sufficient time for Esseghaier to wash, eat his lunch, and say his prayers. As a result, he continued saying his prayers in court in the presence of the jury panel. When I told him to stop, he repeatedly disobeyed my orders. I removed the jury panel, and after an inquiry and after dismissing a mistrial Motion brought by counsel for Jaser, I agreed to give Esseghaier at least one and a quarter hours each day at lunch. He agreed, in turn, that he would not say his prayers in the presence of the jury. He also agreed that he would not make any of his submissions, which were all in the nature of spiritual advice, in the presence of the jury. Instead, he would make them to me in the absence of the jury. The trial proceeded on this basis without incident.

[17] After the close of the Crown’s case, Esseghaier remained silent when I asked whether he wished to call a defence. I advised him, in advance, when this time was approaching and I urged him to confer with amicus and to obtain advice. Esseghaier had conferred with amicus from time to time, during the trial, and he and amicus appeared to have a respectful relationship. They also appeared to be able to communicate with each other and amicus would advise me as to the results of any consultations with Esseghaier. When Esseghaier chose to remain silent at the end of the Crown’s case, I gave the jury the following instruction at Esseghaier’s request and with the concurrence of all counsel:

Members of the jury, as you have just seen, Mr. Esseghaier has chosen to remain silent when I asked him whether he wished to call a defence. This is consistent with the position he has taken throughout the trial. He remained silent upon arraignment, when he was asked to enter a plea on the Indictment. He has also remained silent at the conclusion of examination-in-chief of each Crown witness, when I have asked him if he wishes to cross-examine the witness.

Mr. Esseghaier has asked me to explain to you the reason why he has consistently remained silent throughout the trial. He does address me, in submissions in your absence, and I have reviewed what I propose to say with him. Both counsel for the Crown and counsel for Mr. Jaser, agree that I should explain to you the reasons for Mr. Esseghaier’s decision to remain silent.

The reason for Mr. Esseghaier’s decision is very simple. During the months prior to the jury being summonsed, I heard a number of what we call pre-trial Motions where I ruled on various legal issues raised by the parties. Mr. Esseghaier brought a Motion in which he submitted that the trial in this case should not be conducted under the Criminal Code. Rather, it should be conducted under the Holy Qur’an. As Mr. Esseghaier put it in his submissions to me on the pre-trial Motion:

So the Holy Qur’an should be used as a unique reference for judgment in the matters of people’s life. We should not adopt laws made by humans as supreme laws and put the laws of our Lord behind our back. The humans are not perfect. But God is perfect and He is the Lord of the world. So His laws are supreme laws and His laws should be applied to all the world.

In reasons dated June 23, 2014, I dismissed Mr. Esseghaier’s pre-trial Motion and held that I was bound to uphold the Constitution as the “Supreme Law of Canada”, which includes the principle known as “the rule of law”. In this country, the “rule of law” means a system of positive laws, one of which is the Criminal Code. Accordingly, I ruled that I was bound to conduct this trial pursuant to the provisions set out in the Criminal Code.

Mr. Esseghaier does not agree with my ruling on the pre-trial Motion and he continues to believe that his position is the correct one. Accordingly, he explained to me, when the jury was summonsed, that his participation in the trial would signify his acceptance of the trial being conducted pursuant to the Criminal Code, and not pursuant to the Holy Qur’an. In these circumstances, he decided that he should not participate. He has consistently maintained that position throughout the trial.

Those are the reasons, that I wanted to explain to you, for Mr. Esseghaier’s non-participation.

I instruct you, as forcefully as I can, that you must not draw any adverse inference from Mr. Esseghaier’s decision not to participate in his trial. I explained to you previously that he has an absolute right not to be represented by counsel. I also explained to you that the accused has an absolute right to remain silent. Canadian law does not require Mr. Esseghaier to participate in his trial. It only requires him to be present and he has been present and he has not disrupted the trial.

In all these circumstances, I repeat that you must not draw any adverse inference from Mr. Esseghaier’s decision to be present at his trial, but not to participate in it. Indeed, his non-participation in the trial is a circumstance that you should simply not take into consideration at all. It is irrelevant to and carries no weight in relation to the decisions that you do have to make in this case, on which I will instruct you in the Charge to the Jury [emphasis in the original].

[18] As noted previously, Essseghaier did prepare a closing address to the jury, after conferring with amicus. It was not objected to by any counsel and I approved it, after we had reviewed it in advance. This closing address was read to the jury by amicus. Once again, it referred to Esseghaier’s belief in the supremacy of God’s laws and to his reasons for only participating in the trial in a limited way. It was as follows:

Members of the Jury, I’m addressing you today not because I want to participate in the trial or to defend myself. Not at all! I’m addressing you today because I want to give you sincere advice.

This trial was conducted pursuant to the “Criminal Code” which is a book written by humans. Everybody knows that humans are not perfect and that God the Creator of the Universe is perfect. That’s why I required the Holy Qur’an as unique reference of my trial and the judgment of all matter of people’s life.

Today, I encourage you to retreat from the charge that has been affected to you as a first step of your sincere repentance to God your True Lord. I admonish you to take this decision as soon as possible because this court still being submitted to the Canadian laws instead of the laws of God that are detailed in the Holy Qur’an.

I would like to remind you that I’m a scientist doing multidisciplinary studies on biophysics area. I was on the stage of “thesis writing” of my PhD program when I was arrested on April 22, 2013. That’s why I invite you to trust me when I say to you that the Qur’an provided by the prophet Mohammed in the 7^th century contains scientific statements that you can never reach without issuing the technology of the 20^th century. Please, read about the scientific and mathematical miracles of the Holy Qur’an before taking any decision regarding your retreat from the court and from the charge given to you. Remember that God doesn’t need my striving for the application of His Laws on the whole earth in one single state. Remember also that God doesn’t need your seeking of the Truth and your retreat from the charge of the court. God doesn’t need the whole universe. Anything good we do, me or you, we do it only for the good of our own soul. How come you believe that many human beings are judges and God, creator of humans, is not judge? If there is not Judgment Day and no reckoning of what we do in this universe, then God is not judge and then God has created this universe for nothing. That’s why, the Judgment Day is sure to come and that’s why you have to prepare yourselves for that Great Day from now as you prepare yourselves before you travel to another country or to another continent.

[19] In my view, Esseghaier’s decision to make the above closing address to the jury was consistent with the position he had taken throughout the pre-trial and trial proceedings. He did not participate in the normal trial and pre-trial procedures, provided for by Canadian law, but he did bring one pre-trial Motion and he did offer spiritual or religious advice to me and the lawyers and the witnesses from time to time. He always made these latter submissions in the absence of the jury, pursuant to the agreement that we reached at the beginning of the trial. He always made it clear that he wanted to offer similar advice to the members of the jury and his closing jury address was the one opportunity where I had told him that he would be able to address the jury. He regarded it as part of his religious obligation or duty, to save the souls of non-believers, by the giving of spiritual and religious advice to all persons in the court, including the jury. In my view, this is what he was doing when he addressed the jury.

[20] In my Charge to the jury, at the conclusion of the trial, I again reminded the jury of the reasons why Esseghaier had chosen not to participate in the trial. I stated the following:

As you know, Mr. Esseghaier has chosen not to participate in the trial, although he did prepare a short closing address which I asked Ms. Grant to read to you.

I explained to you that the reason why Mr. Esseghaier has not participated in his trial is because he believes that the trial should be conducted under the Holy Qur'an and not under the Criminal Code. I ruled that the trial would be conducted under the Criminal Code and, as a result of that ruling, Mr. Esseghaier made the decision not to participate. As I told you, our law does not require him to participate.

In his closing address, Mr. Esseghaier said that the Criminal Code is "a book written by humans" and that "everybody knows that humans are not perfect", whereas "God the Creator of the Universe is perfect". He urged you to read "about the scientific and mathematical miracles of the Holy Qur'an" and to do good deeds because "the Judgement Day is sure to come and that's why you have to prepare yourselves".

I instruct you, as a matter of law, that you must follow the instructions that I have given in this trial, which are based on the Criminal Code. I also repeat the instruction that I gave you previously, that you must not draw any adverse inference from Mr. Esseghaier's decision not to participate in the trial. It is irrelevant to and carries no weight in relation to the issues and decisions that you do have to make in this case and on which I have instructed you.

[21] It can be seen that Esseghaier made coherent and explainable decisions not to retain counsel, to represent himself at trial, and to remain silent for the most part, except for his one pre-trial Motion, his closing jury address, and his occasional submissions to me in which he always stressed the supremacy of God’s laws and provided some point of spiritual or religious advice. In my view, there is not a scintilla of evidence from the pre-trial and trial record to suggest that he was unfit to stand trial nor did anyone ever raise the matter at trial and suggest otherwise.

[22] The final developments that are relevant to the issue of Esseghaier’s fitness occurred after the verdicts had been received. I gave amicus an expanded role on sentencing, in order to provide me with any and all evidence and submissions that would assist the Court in determining the appropriate sentence for Esseghaier. I ordered a Pre-Sentence Report and urged Esseghaier to cooperate with the probation officer who would prepare the report. I also urged him to cooperate with amicus. I advised Esseghaier that I needed as much information about him as possible, in order to determine the fit sentence in this case. Esseghaier provided a full account of his antecedents and his current views about the offences to the probation officer. When the report was filed in court, Esseghaier made a number of corrections and agreed that the probation officer could also interview his parents in Tunisia. As a result, a revised Pre-Sentence Report was filed in court.

[23] On one of the remands pending sentencing, counsel for Jaser advised the Court that he was having a private psychiatric assessment of Jaser completed for the sentencing hearing, and that it would require a few months to complete. During the period of this further adjournment to await sentencing, amicus brought a Motion seeking a psychiatric assessment of Esseghaier. It was heard on May 13, 2015.

[24] There is no provision in the Criminal Code providing for a psychiatric assessment pending sentence and so the Motion was brought pursuant to s. 21 of the Ontario Mental Health Act. See: R. v. Lenart (1998,) 1998 1774 (ON CA), 123 C.C.C. (3d) 353 (Ont. C.A.). Section 21(1) provides for a psychiatric assessment of a person awaiting sentence where there is “reason to believe” that the person “suffers from mental disorder”. This legal test has nothing to do with fitness or with criminal responsibility and amicus, Mr. Silverstein, conceded during his argument of the Motion that Esseghaier was both fit to stand trial and that he did not meet the s. 16 test for lack of criminal responsibility. Mr. Silverstein is an experienced defence counsel and he had met with and watched Esseghaier throughout the trial. The basis that he advanced for the Mental Health Act assessment was that it would assist on sentencing, to determine whether Esseghaier does or does not suffer from a mental disorder, since this would relate to his degree of moral culpability. Mr. Silverstein relied on evidence of certain changes in Esseghaier’s behaviour, at the time when his religious extremism developed soon after he came to Canada to study towards his PhD (as set out in various RCMP interviews), as well as relying on a small number of incidents that had occurred in court. Mr. Silverstein submitted that this body of evidence was suggestive of mental illness and not that it was suggestive of Esseghaier being unfit to stand trial. Mr. Silverstein, of course, conceded that religious fervour provided no evidence of mental disorder.

[25] I concluded that it was a close case, as to whether there was sufficient evidence of a mental disorder to justify a psychiatric assessment under the Mental Health Act. However, Esseghaier had given his consent to the assessment and I held that it would be helpful on sentencing to know, “whether there is something about Mr. Esseghaier’s personality structure that makes him susceptible to religious extremism and that led to his radicalization after his arrival in Canada … and that some kind of mental disorder may be relevant … in relation to that issue”.

[26] Accordingly, an Order was made to have Esseghaier assessed at CAMH in Toronto. Dr. Lisa Ramshaw carried out the assessment over the course of three days in June 2015 and she provided a lengthy report to the Court.

C. DR. RAMSHAW’S REPORT AND TESTIMONY

[27] Dr. Ramshaw’s report dated July 3, 2015, and her testimony on the sentencing hearing on July 14 and 15, 2015, provided the main basis for the fitness issue that has now been raised by amicus.

[28] The key parts of Dr. Ramshaw’s report that are relevant to the issue of fitness, in my view, are the following:

In terms of Esseghaier’s ability to communicate with her, she described him as “consistently respectful, polite and cooperative. He was attentive and engaged throughout more than fifteen hours of interviews”. She stated that “Mr. Esseghaier impressed as a reliable historian regarding his background. He frequently stated he would not and does not lie as it is forbidden according to the Qur’an”;
Esseghaier discussed the offences that had been the subject of the trial. Dr. Ramshaw stated that, “Mr. Esseghaier acknowledged the behaviour leading to his charges. He was open to talking about his plans, his motivation, and all aspects of his life”. Dr. Ramshaw questioned Esseghaier directly about the offences which led to his convictions. He replied in terms that closely resemble his numerous recorded statements on the wiretaps tendered in evidence at trial. Dr. Ramshaw stated that Esseghaier told her that, “he was at war and it was his duty to fight to apply the laws of God in earth … the jihad is the means to apply the word of God … When asked about the plans to derail a train to kill, he stated, ‘the train is not relevant matter because when God he destroy hundreds of states and made them level zero – what is worse, blowing up one train or destroying city?’ When asked why they were plotting to kill, he responded, ‘What the state is doing is worse than killing’… When asked about the expected impact of what he was planning, he said, ‘The media makes report’, and he shows the people what they should do. … He was there to fight for the Islamic state, not to fight the people, but ‘if the people are soldiers then you fight the soldiers’. The people of Canada were working for the state in civilian clothes, and therefore were all soldiers – ‘people are not aware of what they are doing; they don’t apply the rule of God – and should be one state under rule of God’ … He acknowledged that he felt he was on a mission … ‘me I don’t think it’s terrorism – it is applying the laws of God – we are obliged to apply war and do killing’”.
The part of Dr. Ramshaw’s report that relates most directly to the legal test for fitness to stand trial is titled “Mr. Esseghaier’s Understanding of the Legal Proceedings”. This part of the report is also significant as it indicates that Esseghaier continues to take the same position that he took on the pre-trial Motion, namely, that he wants to be tried under the laws of the Holy Qur’an. Dr. Ramshaw stated that, “Mr. Esseghaier appeared to understand his charges, the pleas available under the Criminal Code of Canada, the roles of the various officers of the court (including Amicus), and the possible consequences of his trial within the Canadian legal system. He was aware that he had been found guilty and was awaiting sentencing. However, he also stated that from the meaning he found in his birthdate that he knew he had no criminal charges ‘according to the Holy Quran which I follow; it is the truth not my truth’. As well, he said that according to the Holy Quran he had a right to kill as ‘God said associating partners with him is more serious than killing’”.

Dr. Ramshaw went on to state that, “According to Canadian law, he understands that his behaviour was considered criminal, ‘but I don’t consider it criminal’. He understood that according to Canadian law if found guilty he would receive a long jail sentence – ‘but I don’t cooperate with the Canadian law’. While he disagrees with the Canadian laws, he understands that according to Canadian law, planning to kill and attack is a crime but ‘I disagree with the whole state of Canada and the whole world using reference other than the Holy Quran’. He said, ‘Canada will not accept my thinking, and what I am convinced about’”.

Dr. Ramshaw further stated that, “Mr. Esseghaier also appeared to understand prior to his arrest, that he could be arrested any time when he was plotting to derail the train. However, in keeping with his statements in court, he continued to believe that he needed to be tried and sentenced under Sharia law with the Holy Quran. … When he was asked about the consequences for him, if he had been tried under Sharia law, he responded that ‘under the Holy Quran I am not criminal and therefore would immediately/automatically release me; I am very comfortable about my future because I know anything that will happen to me is by God’s leave – I don’t rely on human beings, only God … the punishment of God is more severe and bigger than human beings’. In his view he has no real criminal charges – ‘according to the Holy Quran which I follow; It is the truth not my truth’. However, at the time of his arrest he appeared to understand that he could have been perceived of as a terrorist”;

Finally, Dr. Ramshaw described Esseghaier’s current views about terrorist activities, stating that “Mr. Esseghaier believed that being a Muslim, he had a mission of jihad where making chaos in the form of terrorist activities will bring the ruling state to its knees and therefore they would be able to start having an Islamic state even if were a small area within the country. This would eventually engulf the whole country and its surroundings. Although he did not identify with any group, he believed that after carrying out his terrorist activity, many Muslims, “soldiers” of Islam as he described them, would eventually join him in creating State of Islam.”

[29] Dr. Ramshaw’s psychiatric diagnosis was that Esseghaier likely suffers from a mental disorder, namely, schizophrenia. The strongest symptom on which she based this diagnosis was the emergence of a number of delusions in the last few months, since his convictions. In particular, Dr. Ramshaw referred to Esseghaier’s “belief that his soul would be taken by God when he was 33 years of age, like Jesus” and his belief that “the officers and prisoners [at the Detention Centre] had conspired to make each of the days shorter by creating fake light in his cell, and that in fact it was [presently] some time before December 25, 2014”.

[30] Esseghaier had recently advised me in court of this particular belief that, like Jesus, his soul would be taken to heaven by God at age 33 on December 25, 2014 and his related belief that today’s date must still be some time in 2014 because he was not yet dead. He first mentioned these beliefs to me on a remand appearance, on June 16, 2015, and he elaborated further on these points at the next court appearance on July 10, 2015. He explained that he would be released from jail when his soul was taken by God to heaven on December 25, 2014. He insisted that this belief was not a delusion and that his soul would rise to heaven, as this is based on the Qur’an. He forcefully asserted that it was wrong and unjust for Dr. Ramshaw to describe this belief as a delusion. He explained that he had only recently told me (and Dr. Ramshaw) about this particular revelation because he had been thinking about it for some time, he did not want to rush, and he wanted to be sure about his analysis before telling me (and Dr. Ramshaw). Dr. Ramshaw acknowledged in her testimony that Essaghaier’s belief that his soul would be taken to heaven by God on December 25, 2014, and that this date had not yet arrived, were recent developments that he appears to have first spoken about in June 2015 (both to her and to the Court). This, of course, was over two months after his convictions and after Esseghaier had had some time to reflect on his fate.

[31] Dr. Ramshaw concluded her report by offering an opinion about Esseghaier’s present fitness, even though this had not been the purpose for which the assessment had been ordered. She stated the following on this topic:

During his court proceedings, Mr. Esseghaier was intrusive, repetitive, and unable to integrate the fact that he needed to be tried under Canadian law. He was fixed in his beliefs that he could only be tried under Sharia law. While he knows he has been charged and convicted under Canadian laws, and that sentences for his type of offences could be many years in prison, Mr. Esseghaier believes that the Canadian laws do not apply to him, and that under Sharia law he would be released as his behaviour was not criminal. He also believes that he is a visitor of the court, and that he is only there to disseminate the information about the true ways of Islam. As well, he stated that he will not be serving a sentence as Allah will take his soul while he is still 33 by the lunar calendar. Given the above, and his increasing psychosis, I believe that Mr. Esseghaier is unable to participate meaningfully in the proceedings at this juncture, and is more likely than not unfit. [Emphasis in bolded type in the original.]

[32] In her testimony on the sentencing hearing, counsel questioned Dr. Ramshaw about her above opinion on the issue of fitness. The following important points emerged from her testimony:

She understood the three part legal test for fitness and her concern was with the third branch of the test. That part of the test refers to an accused who is “unable on account of mental disorder to … communicate with counsel”. Since Esseghaier had chosen not to be represented by counsel, Dr. Ramshaw had adapted or amended this third criterion. She interpreted it as meaning, in the context of this particular case, that Esseghaier was unable to communicate and to engage and participate in court at the sentencing hearing. She illustrated the point, in much the same manner as in the above passage quoted from her report, by referring to Esseghaier’s belief that “he is a visitor to the court and that he is only there to disseminate advice about the true ways of Islam” and his insistence on being “tried under Sharia law”. She described these as “psychotic or delusional beliefs about court proceedings and his role in the court proceedings”. As a result, she concluded that he cannot represent himself effectively or participate meaningfully in the sentencing process;
She had some concerns about the first two branches of the test in law for fitness, namely, Esseghaier’s ability to “understand the nature and object of the proceedings .. [and] the possible consequences of the proceedings”. However, she agreed that Esseghaier understands my ruling dismissing his pre-trial Motion and he understands that the proceedings are, therefore, being conducted under the Criminal Code and not under Sharia law. She also agreed that he knows he has been convicted and that he is facing the prospect of a lengthy jail sentence. Finally, she agreed that an accused’s belief that his sentence will be shortened if and when he dies in custody would not render him unfit under the second branch. For all these reasons, Dr. Ramshaw conceded that she would not have concluded that Esseghaier was presently unfit on either the first or second branches of the test;
She agreed that she had not been provided with any of the Transcripts from the eleven month period of pre-trial proceedings before me, with one exception. The one Transcript she had been provided with, and had reviewed, was from Thursday, January 22, 2015. This was the day when Esseghaier refused to come out of his cell and come to court and when he had to be brought to court against his will, eventually leading to his removal from court (as summarized earlier in these Reasons). Unfortunately, she was not provided with the Transcript for the next day, Friday, January 23, 2015, when this dispute was resolved through a lengthy negotiation between Esseghaier and the Court (as summarized above). She was also not provided with any Transcripts from the eight week long trial, including the key events relating to Esseghaier’s limited participation that are summarized above in these Reasons. The only exceptions were two brief excerpts that were provided to her by amicus. These excerpts concerned the two minor incidents that amicus had relied on, in part, when bringing the Motion pursuant to s. 21 of the Mental Health Act (both incidents concerned Esseghaier’s repeated preoccupation with the number three which he regards as a symbol of the Christian trinity). Dr. Ramshaw testified that a more thorough appreciation of the pre-trial and trial record would be important to any opinion concerning Essseghaier’s fitness at this earlier time, that is, at the time of trial. She stressed that her opinion related only to Esseghaier’s fitness now, in July 2015, at the time of sentencing;
Dr. Ramshaw conceded that Esseghaier’s initial decision, on January 23, 2015, not to participate in his trial and to attend court solely for the purpose of occasionally offering spiritual advice to the people of the court, may have come about through rational choice and negotiation and may have been based on his strong religious beliefs. Her concern was that his continued adherence to that decision was now compromised by delusional beliefs and was no longer rational. Similarly, she conceded that his initial decision to represent himself, because he could not find a lawyer who would bring his Sharia law Motion, may have been rational and religiously based at the time. However, she testified that he no longer had the tools to re-visit or reconsider that decision because of the present rigidity of his delusions;
Dr. Ramshaw conceded that Esseghaier still believed that jihad is lawful under the Holy Qur’an, he still wanted the court proceedings to be conducted under the Holy Qur’an, and he still wanted to represent himself and did not want to be represented by a Canadian lawyer who would follow Canadian law. She conceded that the basis for these positions taken by Esseghaier remained the same as it always had been. Finally, she agreed that there was presently no indication that Esseghaier wished to change his position on these points or that he would ever change his position. Dr. Ramshaw simply opined that anti-psychotic medication would likely attenuate the rigidity of Esseghaier’s delusions, which had become much stronger since the conclusion of his trial. If anti-psychotic medication had this effect, it could then be determined whether Esseghaier would continue to maintain his earlier decisions concerning non-participation in his trial and his limited role in the trial;
Dr. Ramshaw conceded that Esseghaier had communicated the necessary information required by the probation officer for the Pre-Sentence Report and he had communicated the information that she required for her s. 21 Mental Health Act report. She agreed that Esseghaier’s present delusions did not prevent him from providing all this information relevant to sentencing. She agreed that he also provided all the necessary consents that enabled these sentencing reports.

[33] Before leaving this section of my Reasons, I should note that Esseghaier vigourously opposed Dr. Ramshaw’s testimony. He read her report and then addressed me at length about the deficiencies that he perceived, which I have briefly summarized above. He asked me to prevent her from testifying because the report was false. I explained that I had to first hear her testimony, before I could evaluate her report. When she reached the part of her testimony where she asserted that Esseghaier suffered from psychotic delusions, he lay down in the dock and closed his eyes. When I asked him to stop this behaviour, he refused and argued forcefully with me. I had him removed from the court room pursuant to s. 650(2)(a). He was taken to a room with a video and audio link, until her testimony was completed. I then brought him back into the court room and there were no further incidents.

[34] When I asked Esseghaier whether he had any questions for Dr. Ramshaw, he took the same position he had taken at trial and advised that he did not. When I asked him at the end of the sentencing hearing whether he wished to call any further evidence, he again took the same position and advised that he did not. He stated that his position at the sentencing hearing was the same as it had been at trial. He explained that, in God’s eyes, he was not a criminal and yet he was being treated as a criminal in these court proceedings. He stated that calling evidence and participating in the court proceedings would amount to an acknowledgement that he is a criminal. He considered himself a believer and he stated that God would raise his soul to heaven, and release him, because he is a believer.

[35] On both of the above occasions during the sentencing hearing, Esseghaier went on to provide the Court with further information about his spiritual journey and about his most recent spiritual revelations. He explained that he now understood the way in which his soul would rise to heaven on December 25, 2014, through the vehicle of a plane that would fly his body to Tunisia where it would be buried. Once his body was buried, his mother would die that same day.

[36] At this point, the evidence on the sentencing hearing concluded. Amicus submitted that I should order a full assessment of Esseghaier’s fitness to stand trial, pursuant to s. 672.11(a) of the Criminal Code, relying primarily on Dr. Ramshaw’s report and her testimony. Amicus also submitted that I should appoint counsel for Esseghaier, pursuant to s. 672.24. The Crown now joined amicus for the first time in seeking a s. 672.11(a) assessment of Esseghaier’s fitness, stressing that the test is quite modest, namely, “reasonable grounds to believe that such evidence is necessary to determine whether the accused is unfit to stand trial”. See: R. v.Szostak (2012), 289 C.C.C. (3d) 249 at paras. 47-9 (Ont. C.A.). The Crown insisted that the higher s. 672.23 test had not been met – “reasonable grounds to believe that the accused is unfit to stand trial” – and that Dr. Ramshaw’s evidence did not provide a basis to commence a fitness hearing under that provision. The Crown’s concern was with Esseghaier’s most recent revelations, disclosed to the Court during the sentencing hearing and summarized above, and with the unsatisfactory state of the record after Dr. Ramshaw’s testimony. The Crown had retained Dr. Klassen to provide this further assessment within the next thirty days.

D. THE LAW OF FITNESS TO STAND TRIAL

[37] The requirement that an accused be fit to stand trial existed at common law. It was statutorily incorporated into the original 1892 Criminal Code in s. 737, it became s. 524 in the 1955 Criminal Code, and finally it became s. 615 in the 1985 Criminal Code. However, all of these statutory provisions simply referred to a finding that the accused was “unfit to stand trial”, without ever defining this status. As a result, the content or meaning of fitness to stand trial has remained a creature of the common law throughout most of our history. See: J.C. Martin Q.C., the Criminal Code of Canada, Cartwright & Sons Ltd. 1955, at 833-4; R. v. Steele (1991), 1991 3882 (QC CA), 63 C.C.C (3d) 149 at 172-182 (Que. C.A.).

[38] The 1991 Criminal Code amendments, enacting what is now Part XX.1 in the wake of the Supreme Court of Canada’s decision in R. v. Swain, supra, remedied this deficiency and legislated a definition of fitness to stand trial for the first time. This modern statutory definition has generally been regarded as a codification of the common law. Sopinka J. described the statutory and common law meaning of fitness to stand trial in R. v. Whittle (1994), 1994 55 (SCC), 92 C.C.C. (3d) 11 at 25-6 (S.C.C.), speaking for a unanimous Court:

The test for fitness to stand trial is quite different from the definition of mental disorder in s. 16. It is predicated on the existence of a mental disorder and focuses on the ability to instruct counsel and conduct a defence. That test which was developed under the common law is now codified in s. 2 of the Code as follows:

“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, unable on account of mental disorder to

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

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

It requires limited cognitive capacity to understand the process and to communicate with counsel. In R. v. Taylor (1992), 1992 7412 (ON CA), 77 C.C.C. (3d) 551, (Ont. C.A), the Ontario Court of Appeal, after reviewing the authorities, held that the trial judge erred in concluding that the accused must be capable of making rational decisions beneficial to him. At p. 567, Lacourcière J.A., on behalf of the court, stated:

The “limited cognitive capacity” test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have a trial within a reasonable time.

Accordingly, provided the accused possesses this limited capacity, it is not a prerequisite that he or she be capable of exercising analytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves her interests. [Emphasis added.]

[39] The “limited cognitive capacity” test, first developed by the Court of Appeal in R. v. Taylor (1992), 1992 7412 (ON CA), 77 C.C.C. (3d) 551 (Ont. C.A.) and adopted by the Supreme Court in Whittle, was recently discussed by the Court of Appeal in R. v. Morrissey (2007), 2007 ONCA 770, 227 C.C.C. (3d) 1 at para. 27 (Ont. C.A.). Blair J.A. gave the judgment of the Court and stated:

This threshold is not high … 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.

[40] Like the case at bar, R. v. Taylor, supra at 557-8 and 563-4, was a case where the first two branches of the fitness test were not in issue. The sole focus of the “limited cognitive capacity” test was on the third branch, namely, Taylor’s ability to “communicate with counsel”. In this regard, the psychiatrists had testified at trial that Taylor suffered from schizophrenia and was delusional and that, “His delusional system is focused on the judicial system and participants in it”. The psychiatrists went on to testify that Taylor was unfit because he “would be unable to participate meaningfully in the proceedings as his delusional thinking would preclude accurate perception of the events occurring before him … It would hardly be surprising if he is uncooperative with the lawyer assigned to represent him and I do not believe by any stretch of the imagination he could effectively represent himself.” In spite of this impact of his delusions, the psychiatrists agreed that Taylor understood “the charges against him, the officers of the court, the possible pleas to him … [he] was articulate, was aware of the consequences of his trial.” [Emphasis added]. Based on this evidence, Taylor was found unfit at trial. The highlighted evidence concerning Taylor, set out above, bears considerable resemblance to Dr. Ramshaw’s evidence concerning Esseghaier in the case at bar.

[41] The Court of Appeal held that Taylor’s delusions did not render him unfit. As amicus in that case put it, under the “limited cognitive capacity” test “the presence of delusions does not vitiate the accused’s fitness to stand trial unless the delusion distorts the accused’s rudimentary understanding of the judicial process”. Blair J.A. explained the effect of Taylor in R. v. Morrissey, supra at para. 31, stating that the “limited cognitive capacity” test “does not require the accused person to be capable of giving instructions to counsel that are in his or her best interests”. Also see: R. v. Jobb (2008), 2008 SKCA 156, 239 C.C.C. (3d) 29 (Sask. C.A.).

[42] The authors of Barrett & Shandler, Mental Disorder in Canadian Criminal Law (Toronto: Thomson Carswell, 2014), at pp. 3-7 to 3-9, provide a helpful explanation of the effect of the Taylor decision. They state that the higher test of “analytical capacity”, rejected in Taylor, “would allow the trier of fact to determine the extent to which the accused’s mental illness has impacted on his or her ability or capacity to make decisions unclouded by delusional or irrational thinking”. The authors go on to point out that, “many accused persons for whom mental disorder is simply not an issue would not meet the analytical capacity test. Accused persons routinely make decisions contrary to their best interests, whether self-represented – arguably, the ultimate bad decision – or by choosing to ignore their counsel’s advice”.

[43] There is one further point to note about the Taylor test for fitness which is particularly applicable to the case at bar. The Court held that, “disruption of the trial process by misbehaviour or outbursts of the accused due to his paranoia … difficulty in maintaining a collaborative relationship with counsel in his best interest … his paranoid distrust of counsel, his inability to understand and abide by the rulings of the court, are all matters which raise concerns in the expeditious conduct of the trial. However, we agree with the amicus curiae that these concerns do not affect the application of the proper test to determine whether the accused is capable of communicating with counsel for the purpose of conducting his defence”. See: R. v. Taylor, supra at 568.

[44] It can be seen that there are considerable similarities between the present case and Taylor, both in terms of the psychiatric expert evidence and in terms of the accused’s court room conduct.

E. FITNESS IN THE SENTENCING CONTEXT

[45] The Criminal Code provisions relating to fitness to stand trial do not extend to the sentencing phase of proceedings. The s. 2 definition of “unfit to stand trial” states that it applies to “proceedings before a verdict is rendered”. The s. 672.23 power to direct a trial of the issue of fitness only applies “at any stage of the proceedings before a verdict is rendered” [emphasis added]. The s. 672.11 power to order an assessment, “to determine whether the accused is unfit to stand trial”, means unfit within the s. 2 meaning of the term, that is, prior to verdict.

[46] Nowhere in the Criminal Code is there a power to inquire into the fitness of the accused at a sentencing hearing. This was not a legislative oversight. The statutory power in the Criminal Code to inquire into fitness, ever since the original 1892 Code, has always been qualified by the language “at any time before verdict”.

[47] Accordingly, there is no statutory authority to make the s. 672.11 assessment order sought by amicus and the Crown because the proceedings in this case have long since passed the stage of verdict. A leading expert in this field, Richard Schneider (now Schneider J. and the Chair of the Ontario Review Board), has argued that the common law included a jurisdiction to inquire into fitness at the sentencing stage. I will not repeat his careful analysis of the case law, dating back to the 18^th century and Hale’s Pleas of the Crown. See: Richard Schneider, “Fitness to be Sentenced” (1999), 41 C.L.Q. 261.

[48] Neither amicus nor the Crown has urged me to develop a modern common law power to inquire into fitness at the sentencing stage. Nor did counsel submit that I should resort to the inherent jurisdiction of the court, based on the need to administer justice in a “regular, orderly and effective manner”. See: R. v. Caron (2011), 2011 SCC 5, 264 C.C.C. (3d) 320 at para. 24 (S.C.C.). Instead, when confronted with the absence of any Criminal Code jurisdiction, both amicus and the Crown took the position that I should follow the decision of McWatt J. in R. v. G.B. (2003), 2003 64229 (ON SC), 173 C.C.C. (3d) 547 (Ont. S.C.J.).

[49] G.B. was a case where the accused had deteriorated after verdict and was facing dangerous offender sentencing proceedings. Defence counsel brought an Application alleging that the gap in the Criminal Code fitness provisions, omitting fitness at the time of sentencing, violated s. 7 of the Charter. He sought a s. 52 remedy, either striking down the legislation or “reading in” statutory language that would extend s. 2 and s. 672.23(1) to the sentencing phase of the proceedings. McWatt J. made a finding that the accused had, in fact, become unfit at the sentencing stage. She then held that the Criminal Code fitness provisions violated his s. 7 Charter rights. She granted a s. 52 remedy by “reading in” the two requested amendments to s. 2 and s. 672.23(1) so that the statutory fitness power would now extend to the sentencing hearing.

[50] I agree with McWatt J. that the accused’s s. 7 liberty interests are engaged at a sentencing hearing and that the traditional common law requirement of fitness is one of the “basic tenets of our legal system” that constitute the “principles of fundamental justice”. In this regard, Richard Schneider’s analysis in his article, “Fitness to be Sentenced”, supra at 266-8, is persuasive. He argued in favour of a Charter right to inquire into fitness at the sentencing stage. In this regard, he relied heavily on the Supreme Court’s unanimous decision in R. v. Whittle, supra, which broadly applied the Taylor test for fitness to a number of Charter rights that arise at the investigative stages of a case. Schneider reasoned as follows:

While there do not appear to be cases directly dealing with the issue of “fitness” to be sentenced, the Supreme Court of Canada in R. v. Whittle makes observations which are of assistance. In determining the admissibility of statements made by a mentally disordered accused the court notes that the confession rule, the right to silence, and the right to counsel all have in common the interest that the accused have the right to choose in relation to state action. In particular, the court considered whether the accused was deprived of his right to choose (to make a statement) because of his mental disorder. In doing so the court considered the Criminal Code provisions related to fitness to stand trial and the relevant case law. The court found that the same standard of cognitive capacity necessary to find an accused fit to stand trial should be applied to the determining of whether an accused has sufficient capacity to make choices in the context of the rights to silence, counsel, and the confession rule. The court found that unless there is some good reason inherent in the right, it makes little sense to differentiate as to the requisite capacity to make that choice, and endorsed the view that different standards of competency should not be applied for different aspects of criminal proceedings. The court indicated:

The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.

The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make an active choice.

In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is not in the accused’s best interests. It is not necessary that the accused possess analytic ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must have the mental capacity of an operating mind as outlined above.

It is submitted that the above reasoning lends strong additional support to the notion that the same minimal standard of mental capacity must be present before proceeding with a sentencing hearing (or at any other juncture of the prosecution) in that the accused must always be possessed with the ability to “choose”. [Emphasis added.]

[51] I agree that s. 7 of the Charter requires that a trial judge possess the power to inquire into the “limited cognitive capacity” or “operating mind” of the accused at a sentencing hearing, as explained in Whittle. The absence of any such power in the Criminal Code, however, does not lead to the s. 52 remedy adopted by McWatt J. in R. v. G.B., supra at paras. 38-48, in my view. She concluded as follows concerning the appropriate s. 52 remedy:

Section 2 can be upheld on the basis of reading in “and to be sentenced” to the title and the words “or sentence imposed” after the words “verdict is rendered” in the definition itself. Section 672.23(1) can be upheld on the basis of reading in the words “or sentence imposed” after the words “verdict is rendered”.

[52] There are conceptual difficulties, as well as significant questions of criminal law policy, that are raised by this s. 52 “reading in” remedy. For example, should a jury be empanelled in the midst of a sentencing hearing, in order to try the issue of fitness, or should the judge decide the issue? Should a convicted accused who is awaiting sentence have the determination of his/her sentence indefinitely delayed in all cases where fitness is raised, especially where it is raised against his/her wishes as in the case at bar? Should the provincial review boards have jurisdiction over unfit accused who have been convicted but not yet sentenced? Furthermore, the two amendments to s. 2 and s. 672.23(1) ordered by the Court in G.B. are not sufficient, standing alone. If fitness determinations at a sentencing hearing are to be conducted under the existing Part XX.1 provisions of the Criminal Code, there would have to be number of further amendments to s. 672.38 and s. 672.47, to expand the jurisdiction of the Review Board (or some other body) in order to include unfit accused who have been found guilty at trial and to tailor appropriate remedies for this new class of convicted unfit offenders.

[53] The Supreme Court dealt with an analogous s. 52 remedies problem in R. v. Demers (2004), 2004 SCC 46, 185 C.C.C. (3d) 257 at paras. 57-58 (S.C.C.). In that case, the Court struck down three sections found in Part XX.1 that dealt with unfit accused. The Court held that these provisions were overbroad and violated s. 7 of the Charter because they did not provide for an absolute discharge of those accused who were permanently unfit and who were not dangerous. The Court rejected the remedy of “reading in”, adopted in G.B., for the following reasons (per. Iacobucci and Bastarache JJ., speaking for eight members of the Court):

It is inappropriate to simply strike down the legislation in this case since doing so would create a lacuna in the regime before Parliament would have a chance to act. In accordance with Schachter, supra, a suspended declaration of invalidity is warranted in situations like this one, where striking down the legislation could create a danger to public safety.

In addition, the “reading in” remedy of Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, is also not appropriate here because doing so would necessarily include reading in detailed and complicated consequential amendments to the existing legislation, which, as the Court decided in M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, is better left to Parliament or the legislatures.

In my view, the above reasoning in Demers applies to the constitutional attack that was brought in G.B. in relation to the Criminal Code fitness regime. Of course, at the time of the decision in G.B., McWatt J. did not yet have the benefit of Demers which was decided over a year later.

[54] None of the parties before me has urged the Demers remedy of striking down the fitness regime in Part XX.1, and then suspending the declaration of invalidity. Indeed, no Charter Application has been brought at all and, in any event, such an Application would be premature until such time as I was persuaded that Esseghaier is, in fact, unfit or, at a minimum, that there are reasonable grounds to believe he is unfit.

[55] When Court resumed on July 17, 2015, I advised counsel that, in my view, there was no jurisdiction to order an assessment pursuant to s. 672.11(a) of the Criminal Code, at this sentencing stage of the proceedings. I also advised that I was unwilling to adopt the s. 52 Charter remedy of “reading in”, pursuant to the decision in R. v. G.B., supra. In these circumstances, I asked the Crown whether they were still seeking a psychiatric assessment in relation to the issue of fitness and, if so, whether they were willing to bring their application pursuant to s. 21 of the Ontario Mental Health Act. The Crown advised that they were still seeking a psychiatric assessment by Dr. Klassen relating to fitness and that they were willing to bring it under the provincial legislation, if this was the only source of jurisdiction.

[56] I turn now to the merits of that issue, that is, whether a further assessment of Esseghaier is necessary or justified under s. 21, given the current state of the record.

F. THE MERITS OF A FURTHER PSYCHIATRIC ASSESSMENT AT THIS STAGE OF PROCEEDINGS

[57] The statutory test in s. 21(1) of the Ontario Mental Health Act is as follows:

Where a judge has reason to believe that a person who appears before him or her charged with or convicted of an offence suffers from mental disorder, the judge may order the person to attend a psychiatric facility for examination.

[58] As stated previously, the Court of Appeal has held that this provincial legislation is available to assist the Court at a sentencing hearing when there are gaps in the Criminal Code. See: R. v. Lenart, supra.

[59] The well-known statutory test in s. 21(1) – “reason to believe” – has been held to mean something “less than the standard applicable in civil matters of proof on the balance of probabilities” but “something more than mere suspicion”. It also requires “an objective basis” for the “reasonable grounds for belief”. See: Mugesera v. Canada (2005), 2005 SCC 40, 197 C.C.C. (3d) 233 at para. 114 (S.C.C.); Ontario v. 751809 Ontario Inc. (2013), 2013 ONCA 157, 115 O.R. (3d) 24 at paras. 18-19 (C.A.). Given that this statutory power is discretionary, I must also be persuaded that a further psychiatric assessment at this very late stage of the proceedings could assist the Court, either in relation to sentencing or in relation to the fitness issue that has been raised, or both.

[60] I am reluctant to make a further s. 21 Order because it will cause another thirty days of delay to a sentencing hearing that has already been delayed for four months, since the jury returned its verdict on March 20, 2015. Nevertheless, I am satisfied that the statutory test in s. 21 has been met, as it was previously met on May 13, 2015 when I ordered the first assessment by Dr. Ramshaw.

[61] The more important reason justifying a further assessment by Dr. Klassen, at this stage of the proceedings, is that Dr. Ramshaw’s report and testimony contain a number of serious flaws. As a result, the record that presently exists is unsatisfactory. In my view, and with respect to Dr. Ramshaw, her analysis includes the following factual and legal errors:

First, she has amended the statutory and common law test for fitness. The third criterion of that test requires that the accused have the ability to “communicate with counsel”. Dr. Ramshaw acknowledged that she adapted this part of the test, in light of Esseghaier’s decision not to be represented by counsel. Instead of applying the statutory and common law test, set out in s. 2, she has repeatedly applied a test that focuses on whether Esseghaier has the ability to effectively and meaningfully engage and participate in the court process. This substituted test is particularly troubling when Esseghaier has chosen not to participate and engage, for his own reasons. In my view, there is no authority for Dr. Ramshaw’s approach. The issue under the third criterion remains whether Esseghaier has the ability to communicate with counsel, should he choose to do so. All of the evidence to date is to the effect that he is able to communicate with counsel, when he wishes to do so. He met with various counsel, prior to trial, and assessed whether they could or would bring his pre-trial Motion concerning the applicable law for the trial. He met with amicus at various points during the trial and he obtained some assistance from amicus in relation to his closing jury address. He met with the probation officer and with Dr. Ramshaw after trial and provided all of the kinds of information that counsel would have required for a sentencing hearing. In short, there appears to be little or no evidence that he is unable to communicate with counsel, should he choose to do so. Sopinka J. explained the proper approach to this issue in R. v. Whittle, supra at 31:

The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make an active choice.

In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is not in the accused’s best interests. It is not necessary that the accused possess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must have the mental capacity of an operating mind as outlined above.

In my view, this is the test that should be applied;

Second, Dr. Ramshaw’s exclusive focus on whether Esseghaier has the ability to participate and engage in the court process in a meaningful and effective way is also erroneous. In R. v. Taylor, supra at 566, Lacourcière J.A. referred to the accused’s ability to “participate in the proceedings in a meaningful way” as simply one of the competing policies or values that the Court took into consideration, in adopting the “limited cognitive capacity” test and in rejecting the higher “analytic capacity” test. Similarly, in R. v. Morrissey, supra at 16-17, Blair J.A. quoted the full passage from Taylor setting out all of the competing policies and values that the Court considered when adopting the “limited cognitive capacity” test, and concluded:

Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness.

In my view, neither Taylor nor Morrissey were erecting “meaningful participation” at trial as a new test for fitness. Indeed, both cases affirmed the traditional three part test set out in s. 2 and both cases held that the accused’s manner of participation in the court process need not be in his/her own best interests. The Court’s references to “meaningful participation” were simply to one of the important values that inform all three branches of the test. It is particularly important not to substitute a requirement of “meaningful participation” in a case where the accused has made a deliberate decision not to participate or to participate only in a limited way, for his own reasons. This is a constitutionally protected right, as Lamer C.J.C. explained in R. v. Swain, supra at 505-6:

An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a reflection of our society’s traditional respect for individual autonomy within an adversarial system.

When “meaningful participation” in court processes is substituted as the test for fitness, in a case where the accused has made his own religiously motivated decision as to the limited way in which he will participate, the s. 7 principle of autonomy is undermined;

Third, Dr. Ramshaw lacked much of the background material from the pre-trial and trial proceedings that was necessary to an understanding of Esseghaier’s decision not to be represented by counsel and to an understanding of the role and degree of participation in court that he eventually settled on, after his pre-trial Motion concerning the applicable law was dismissed. Dr. Ramshaw conceded, given that she lacked much of this important context, that Esseghaier’s initial decisions to represent himself, to insist on the application of the Holy Qur’an at trial, and to take on a limited role as spiritual advisor to people in the court when faced with the prospect of attending at a trial that he fundamentally objected to, may all have been rational and religiously motivated decisions at the time. Her only concern was whether Esseghaier could rationally revoke these decisions at his sentencing hearing, at a time when his delusions had become more intractable. However, she conceded that Esseghaier’s reasons for continuing to represent himself, and for continuing to play a limited role in court proceedings, remained exactly the same as at trial. Furthermore, she had no reason to believe that he wished to revoke these decisions or that he would ever revoke them. She simply recommended that he receive treatment with anti-psychotic medication in order to test whether he would change these decisions. In my view, Dr. Ramshaw’s above approach to this issue involves speculation;
Fourth, and last, Dr. Ramshaw has given little or no weight to the context that we are presently in, namely, a substantially completed sentencing hearing. The only real participation that an accused has at a sentencing hearing is to provide counsel or the court with a reliable account of his/her past antecedents, role and responsibility in relation to the offences, and future prospects. It is then for the trial judge to apply the law of sentencing to the facts, with assistance from counsel concerning the range of sentence that emerges from decided cases. I will receive this latter assistance from amicus, from counsel for Jaser, and from the Crown. In my view, Esseghaier has fully satisfied the level of participation required of an accused at his sentencing hearing. I urged him to cooperate with amicus, to cooperate with the probation officer preparing the Pre-Sentence Report, and to cooperate with Dr. Ramshaw, so that I would then have as much information as possible about his past antecedents and his future prospects. Esseghaier did exactly what I asked him to do and I am now in a position to sentence him. There is nothing further that Dr. Ramshaw has pointed to that Esseghaier could do at his sentencing hearing. And yet, she has concluded that he is likely unfit in the specific context of that sentencing hearing.

[62] For all these reasons, I am left with an unsatisfactory psychiatric assessment to which I can presently attach little or no weight. Accordingly, this is a proper case to allow the Crown to seek a further assessment by a different psychiatrist. Dr. Klassen has responsibly agreed to complete the assessment within thirty days, so as not to delay these proceedings any further.

[63] I will, therefore, make an Order pursuant to s. 21 of the Ontario Mental Health Act, directing Dr. Klassen to perform an assessment of Esseghaier’s mental status, both in relation to the issue of fitness at a sentencing hearing and in relation to any other relevant aspect of sentencing.

M.A. Code

Date: July 22, 2015

COURT FILE NO.: CR-13-10000655-0000

DATE: 20150722

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RAED JASER and

CHIHEB ESSEGHAIER

REASONS ON AN APPLICATION FOR A FITNESS ASSSESSMENT AT SENTENCING

M.A. Code J.

Released: July 22, 2015

Her Majesty the Queen v. Raed Jaser and Chiheb Esseghaier, 2015 ONSC 4729

Case Summary

A. INTRODUCTION

B. FACTUAL AND PROCEDURAL BACKGROUND TO THE FITNESS ISSUE

C. DR. RAMSHAW’S REPORT AND TESTIMONY

D. THE LAW OF FITNESS TO STAND TRIAL

E. FITNESS IN THE SENTENCING CONTEXT

F. THE MERITS OF A FURTHER PSYCHIATRIC ASSESSMENT AT THIS STAGE OF PROCEEDINGS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 3