ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-M7872
DATE: 2015/11/02
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
RENE JACK GOUDREAU
Applicant
Jason Neubauer and Lisa Miles, for the Crown
Douglas Baum and Samantha Robinson, for the Applicant
HEARD AT OTTAWA: October 29, 2015
Justice Patrick SMITH
Introduction
[1] The defence of mental disorder concerns the mental capacity of an accused to commit a criminal act. The defence is premised on the notion that a person who is not rational and autonomous should not be liable for punishment when he or she commits what would otherwise be a crime.
[2] Persons who have committed a crime but lack criminal responsibility because of a mental disorder are not held legally responsible for what they have done but may nevertheless pose a serious danger to society. When criminal law intersects with mental health issues a delicate balancing act is necessary involving respect for the individual needs of an accused and the protection of society.
[3] McLachlin J., as she then was, commented on this balance when she said:
…Instead of the stark alternatives of guilt or innocence…the [non-criminally responsible] accused is to be treated in a special way in a system tailored to meet the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately. Under the new approach, the mentally ill offender occupies a special place in the criminal justice system; he or she is spared the full weight of criminal responsibility, but is subject to those restrictions necessary to protect the public. Winko v. British Columbia (Forensic Psychiatric Institute, [1999 694 (SCC)](https://www.canlii.org/en/ca/scc/doc/1999/1999canlii694/1999canlii694.html), [1999] 2 S.C.R. 625, at para. [30]
[4] Accused persons who come within the definition of mentally disordered are neither acquitted nor convicted - they are found “not criminally responsible” and once so found are not sentenced but are held for a disposition hearing that considers both their individual health needs and the risks that releasing them poses to society.
Overview
[5] On October 28, 2015, after a five week trial, the jury returned a verdict finding the accused, Rene Goudreau, Guilty of First Degree Murder.
[6] Following the return of the verdict, counsel for the accused brought an application pursuant to ss. 672.11(b) and 672.12(1) of the Criminal Code of Canada asking this court to order an assessment of Mr. Goudreau’s mental condition for use in determining whether he is exempt from criminal responsibility by reason of mental disorder.
[7] The grounds set out in the application are:
The Applicant has a lengthy history of mental illness and diagnosis of bi-polar disorder.
The Applicant was found not criminally responsible by reason of mental disorder in 2008, and was previously placed on a community treatment order in 2007.
The Applicant was found unfit to stand trial in this matter by Justice C. Kehoe of the Ontario Court of Justice on March 25, 2013 and subsequently remanded in custody to the Royal Ottawa Hospital until such time as he was discharged as fit. Thereafter he was detained in the hospital for a significant period of time on a keep fit order to ensure he was properly medicated so that the matter could proceed to trial.
In the course of hearing evidence in this trial several references were made by witnesses to the fact that the Applicant was either promising to take his medications or that he was not medicated and that his behaviour showed signs of irrational behaviour consistent with mental illness. There was also evidence he was in receipt of ODSP.
[8] In support of the application the applicant relies upon the following evidence:
• the video recording and transcript of Mr. Goudreau’s interview with Ottawa Police Detective Gerry Kinnear on November 27, 2012;
• the video recordings of Mr. Goudreau’s arrival to the police station in the police cruiser and of him in the holding cell;
• the forensic psychiatrists’ Fitness Reports regarding Mr. Goudreau, dated December 28, 2012, March 6, 2013, April 10, 2013, and May 11, 2015;
• the Ontario Review Board’s decisions of August 8, 2008, September 25, 2008, September 18, 2009, and October 29, 2010, relating to the NCR verdict Mr. Goudreau received for criminal charges laid in 2008;
• the Ontario Review Board’s decision of May 16, 2013, finding Mr. Goudreau fit to stand trial for this trial;
• Mr. Goudreau’s community treatment plan of 2007 (as a result of him being placed on a community treatment order);
• a Horizons Renaissance worker’s case notes on Mr. Goudreau;
• the preliminary inquiry evidence of Karissima Rohman, a former girlfriend of Mr. Goudreau;
• video of Mr. Goudreau in the lobby of 90 Woodridge Crescent the morning of November 27, 2012; and
• the testimony of witnesses Paula Nicholls, Gisele Langelier and Cst. Welsh.
The Position of the Defence
[9] After Mr. Goudreau was charged with first degree murder he was assessed and found unfit to stand trial. Subsequently, after a period of treatment he was re-assessed and found fit to stand trial.
[10] The defence submits that these facts in addition to the extensive psychiatric history of Mr. Goudreau’s life demonstrates beyond any doubt that there is a well-documented, pre-existing diagnosis of a mental disorder, namely schizoaffective disorder and bipolarity. These two disorders are the “mental disorders” on which the defence relies as the evidentiary foundation for a s. 16 defence.
[11] The defence asks this court to grant its application and order an assessment, retain jurisdiction of the matter, excuse the jury to some point in the future when the assessment has been received and, at that point, hear evidence and then charge the jury on the s. 16 defence.
[12] The accused did not file evidence from a physician in support of his application. Defence counsel was unable to say when the assessment would begin, how long the assessment would take or who the assessor would be, should an assessment be ordered. On October 29, 2015, counsel for Mr. Goudreau undertook to inform the court of these details today, Monday November 2nd.
[13] It is the position of the defence that the evidence and material referred to above is sufficient to satisfy the requirements for an assessment order.
The Position of the Crown
[14] Crown counsel submitted that the test to apply on this application is whether there is evidence to establish “reasonable grounds” to believe the assessment is “necessary”. The term “reasonable grounds”, in this context, has been interpreted to mean that there must be a “credibly based probability” that the assessment is necessary.
[15] The Crown submits that, if the most that can be said is that there is “a reasonable question” whether the assessment is necessary, the test will not have been met.
[16] It was the Crown’s view that, although there is no requirement for expert medical evidence on such applications, the absence of an opinion from a physician supporting the position that Mr. Goudreau is or may be NCR and/or any expert evidence indicating that an assessment is required is a relevant factor for the court to consider.
[17] Without such medical evidence, the Crown’s position is that the application is less likely to be able to meet the “reasonable grounds” threshold. Crown counsel expressed the view that s. 672.11 creates an “evidence-based test” and that absent evidence building the bridge between mental illness and s. 16, including evidence about the point in time at which the crime was committed, then the “necessity” required by the section is not established. The Crown notes that the defence has been diligently investigating this potential defence throughout the proceedings and submits that the absence of medical evidence, despite the defence’s inquiries on this issue, is telling.
[18] In short, the Crown’s position is that while Mr. Goudreau undoubtedly has a mental illness, the s. 672.11 inquiry requires more than that. The evidence of Mr. Goudreau’s mental illness may raise a “reasonable question” about s. 16, but does not establish a “credibly based probability” that an assessment is necessary to determine the s. 16 issue.
[19] The Crown asks that this court deny the application, discharge the jury and proceed to sentencing.
Relevant Provisions of the Criminal Code of Canada
[20] The relevant provisions of the Criminal Code of Canada are as follows:
- In this Act,
“mental disorder” means a disease of the mind;
- (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);
672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor.
Issue to be Determined on this Application
[21] The term ‘mental disorder’ is defined in s. 2 of the Criminal Code as a “disease of the mind”.
[22] Until the decision of the Supreme Court in R. v. Cooper (1979), 1979 63 (SCC), [1980] 1 S.C.R. 1149, the question of what was and what was not a disease of the mind depended on the medical diagnosis of an accused and the classification of mental disorders into various categories (e.g. major diseases of the mind or psychoses vs. minor mental disorders such as neurotic reactions or personality disorders). Since the decision in Cooper the question of what is a disease of the mind is not a medical but rather a legal one and does not depend upon any classification scheme that may be used by the medical profession.
[23] In Cooper, Justice Dickson, as he then was, defined the term “disease of the mind” as follows: “In summary, one might say that, in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.” [ibid, at p. 1159]
[24] The application for an assessment filed on behalf of Mr. Goudreau does not raise the issue of whether the accused is not criminally responsible by reason of mental disorder.
[25] The issue to be decided on the application is whether there are “reasonable grounds” for this court to believe that an assessment of the accused’s mental condition is “necessary” to determine whether the accused is not criminally responsible for the offence with which he is charged. This is the issue before the court and the threshold that the accused must satisfy in order for the court to order the assessment.
[26] The application seeks an assessment of the accused that will presumably provide evidence that will assist the jury in determining the question of criminal responsibility at the time of the commission of the offence.
[27] Fitness to stand trial relates to the ability of an accused to participate in the trial process and is assessed at the time of the trial proceeding. It is not related to the issue before the court- the mental state of an accused at the time of the alleged offence.
Threshold for Ordering Assessment
[28] What is meant by the phrase “reasonable grounds to believe” in s. 672.11 is not defined in the Criminal Code of Canada. Case law, although helpful, is somewhat conflicting.
[29] In R. v. Muschke (1997), 1997 838 (BC SC), 121 C.C.C. (3d) 51, at p. 61 (B.C.S.C.), the court held that sworn evidence, either by affidavit or testimony, is required in order for a court to order an assessment.
[30] In a more recent Ontario decision, R. v. Isaac, 2009 ONCJ 662, the court held that “no particular evidence is necessary” to order an assessment but that “[n]evertheless, the basis for the belief must be clear and plainly appear on the record of proceedings”. Isaac also noted that “the threshold for the making of an assessment order is quite low” (at para. 23).
[31] The court in the case of R. v. Sealy, 2010 QCCQ 4504, commented on the meaning of the term “reasonable grounds” and the word “necessary” as used in s. 672.11 noting, at para. 100, that the section should be interpreted liberally and, at para. 102, that “the s. 672.11 applicant does not even have to prove on a balance of probability that he indeed suffers from a mental illness relevant to a final determination of criminal responsibility”, indicating that the threshold is low for applications by the accused. At para. 107 the Court commented:
reasonable grounds in the context of s. 672.11 must not be equated with proof beyond a doubt or proof on a balance of probability. Reasonable grounds for an assessment order are not based on a whim, wishful thinking, or mere possibilities. Instead, reasonable grounds in the context of a section 672.11 application are predicated upon “credibly based probability” which dictate that an assessment order is called for. In determining if there are reasonable grounds, I am not obliged to determine if the applicant’s case for an assessment order is superior to the Crown’s case to dismiss it. All I have to do, instead, is determine if there are tangible grounds or arguments that indicate that an assessment order is called for.
Ruling
[32] Having reviewed all of the evidence relied upon by the applicant including, but not limited to the dispositions of the Ontario Review Board from 2008 – 2013, the video of Mr. Goudreau in the lobby of 90 Woodridge Crescent the morning of November 27, 2012, and the video of Sergeant Kinnear’s interview of Mr. Goudreau in a cell at the Elgin Street police station, I am satisfied that there are reasonable grounds to believe that an assessment 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 subsection 16(1) of the Criminal Code.
[33] I would be remiss if I did not express my concern that a significant delay in conducting the assessment could have a serious impact on the jury and potentially result in a mistrial if jurors, for whatever reason, are unable to continue and fulfill their duties when recalled. For this reason my order granting the assessment will contain specific details including: the name of the assessor, the place where the assessment will take place and a time frame dictating when the assessment must be concluded and when a report must be filed with the court.
Justice Patrick Smith
Released: November 2, 2015
OTTAWA COURT FILE NO.: 12-M7872
DATE: 2015/11/02
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
RENE JACK GOUDREAU
Applicant
RULING ON APPLICATION
P. Smith J
Released: November 2, 2015