SUPERIOR COURT OF JUSTICE
THE ATTORNEY GENERAL FOR CANADA ON BEHALF OF THE UNITED STATES OF AMERICA
Applicant
v.
ANIELA RAPACINSKA A.K.A AGATA BRZOZAWSKI
Respondent
R U L I N G
BEFORE THE HONOURABLE MADAM JUSTICE P. HEBNER
on April 10, 2018 at WINDSOR, Ontario
APPEARANCES:
E. Krivel
Counsel for the Attorney General of Canada
P. Ducharme
Counsel for Aniela Rapacinska
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
WITNESSES
Examination In-Chief
Cross- Examination
Re- Examination
EXHIBITS
EXHIBIT NUMBER
ENTERED ON PAGE
RULING 1
Transcript Ordered: April 13, 2018
Transcript Completed: May 1, 2018
Ordering Party Notified: May 1, 2018
TUESDAY, APRIL 10, 2018
...PROCEEDINGS RECORDED BUT NOT TRANSCRIBED
R U L I N G
HEBNER, J. (Orally):
On February 22, 2018, for oral reasons given on that day, I ordered an inquiry be held on today's date to determine whether a stay of the extradition proceeding against Ms. Rapacinska should be ordered under section 672.851(4) of the Criminal Code. The inquiry has been held. This is my ruling on the inquiry.
BACKGROUND
Ms. Rapacinska is the subject of an application made by the Attorney General of Canada (the "AG") on behalf of the United States of America ("USA"). The AG seeks an order for the extradition of Ms. Rapacinska to the USA. The Canadian offence, which corresponds to the alleged conduct, is attempted break and enter with intent, contrary to s. 348 and s. 463 of the Criminal Code.
In previous decisions, I have set out a summary of the record of the case against Ms. Rapacinska. Most recently, a summary of the record of the case appears in my ruling dated January 8, 2018, declaring Ms. Rapacinska unfit. In this ruling, I will set out only relevant timelines.
The alleged offence took place on December 13, 2015. On July 26, 2016, Ms. Rapacinska posted bond in Sarasota, Florida. She then fled the USA and an order was issued revoking her bond. On August 26, 2016, Ms. Rapacinska entered Canada at Point Edward by boat. She did not report to Canada Border Services. She was convicted of unlawfully entering Canada and wilfully obstructing a police officer, and has served her time. She remains in custody pending the completion of the extradition hearing.
Ms. Rapacinska does not speak English. She speaks only Polish and has required an interpreter for every court appearance and every meeting with the non-Polish speaking assessor.
FITNESS RULING
On January 8, 2018, I declared Ms. Rapacinska unfit to have her extradition hearing held. In doing so, I preferred the opinion of Dr. Nynkowski, the defence expert, over Dr. Prakash, the AG's expert. I did so for several reasons. Dr. Nynkowski speaks Polish and is able to converse with Ms. Rapacinska in her native language. He met with Ms. Rapacinska on four separate occasions at the Southwest Detention Centre. He was able to assess her demeanour and nonverbal communications. Lastly, Dr. Nynkowski's opinion was consistent with the medical records that had been filed.
The medical records, summarized in detail in my ruling dated January 8, 2018, disclose that Ms. Rapacinska was in hospital on two occasions. The first occasion was from April 27 to May 18, 2017 and the second occasion was from June 2 to June 9, 2017. It was determined that she has syphilis. Most likely she has latent syphilis of unknown duration. The hospital was unable to make a diagnosis of neurosyphilis as a lumbar puncture was never completed due to an inability to obtain consent from Ms. Rapacinska.
FURTHER ASSESSMENT
Dr. Nynkowski opined that Ms. Rapacinska most likely has tertiary syphilis, a condition that can occur in people who have had chronic, untreated syphilis. The symptoms of tertiary syphilis can mimic Alzheimer's disease or dementia. Dr. Nynkowski said that Ms. Rapacinska is not able to comprehend reality. Her thinking was disorganized. He could not complete any psychiatric testing as a result. He ruled out the possibility of malingering. Dr. Nynkowski's opinion, which I accepted, was that Mr. Rapacinska was unfit for trial.
Dr. Nynkowski conducted a further assessment of Ms. Rapacinska, on March 9, 2018, at the Southwest Detention Centre. He provided a further report dated March 14, 2018. The entire interview was conducted in Mr. Rapacinska's native language of Polish. According to Dr. Nynkowski's report, Ms. Rapacinska did not recognize him. She does not remember much. She does not recognize how she got to the Southwest Detention Centre. She talked about her father and her mother (now deceased) visiting frequently and bringing sandwiches to eat. Dr. Nynkowski said:
While inquiring about her daily routine, Ms. Rapacinska was very limited in her responses, stating that she gets breakfast, but could not remember what she ate on a given day. She remembers mostly staying in her room lying down. When asked whether she had friends, she said she had none. She also stated that "this is my house and I live here."
Dr. Nynkowski indicated that it was impossible to assess Ms. Rapacinska's mental status. It was impossible to conduct any tests as she was unable to answer any questions in terms of memory, facts, addresses and time. His objective assessment of Ms. Rapacinska was that she is a "60-year-old woman, looking older than her stated age, having a rather flat and depressed affect and answering questions in a very childlike pattern". And said that her symptoms:
Indicate an organic cause that is impairing brain function. She certainly is presenting a rather confused state, having tremendous difficulties with short-term memory recall, and has scattered memories from the past.
Dr. Nynkowski went on to say:
My understanding of her condition is that she is definitely suffering from an organic brain syndrome, namely dementia, due to her general medical condition; indicating tertiary syphilis, causing brain dysfunction. Ms. Rapacinska is definitely presenting signs and symptoms of advanced cognitive impairment, without much agitation, but with multiple symptoms of memory problems, delusions, confabulation and an inability to take care of herself.
Dr. Nynkowski said that Ms. Rapacinska has progressed further in her organic condition. She will gradually deteriorate and has a poor prognosis for the future. He said that it is his belief that "Ms. Rapacinska is permanently unfit to stand trial and will never improve due to her organic brain dysfunction". He further said that Ms. Rapacinska "does not pose any significant threat to the safety of the public". His opinion is that she is permanently unfit to stand trial and is not a threat to public safety.
Dr. Nynkowski was cross-examined by Ms. Krivel on his opinion. He pointed out that syphilis is a progressive disease, attacking the brain and spinal column when left untreated. What he observed when he met with Ms. Rapacinska was that she has progressed in her inability to take care of herself. He said she is "just eating and lying on her back". Her comprehension is very little. Overall, he said the disease has progressed further and her prognosis is poor.
Dr. Nynkowski has seen Ms. Rapacinska now on five occasions over the last 18 months. He said that her condition is progressing to the point where he does not expect it to improve. He said that if she is left untreated, "she will probably die, this year or next year". Dr. Nynkowski, in my view, is in the best position to comment on Ms. Rapacinska's mental state and prognosis. I accept his opinion.
THE TEST
Under s. 672.851(7) of the Criminal Code, a court may order a stay of proceedings, on completion of an inquiry, if the court is satisfied that:
(a) on the basis of clear information the accused remains unfit to stand trial and is not likely to ever become fit to stand trial;
(b) the accused does not pose a significant threat to the safety of the public; and
(c) a stay is in the interests of the proper administration of justice.
POSITION OF THE AG
The submission of the AG is that there is no clear information that Ms. Rapacinska remains unfit to stand trial and is not likely to ever become fit to stand trial. I disagree. Dr. Nynkowski's opinion is clear and I have accepted it.
Counsel for the AG submits that it cannot be concluded that Ms. Rapacinska does not pose a public safety threat. Ms. Krivel points to allegations in the record of the case stated in November 22, 2016. She points out that the allegations in the record of the case indicate an organized scheme with two other individuals whereby they waited for the adult owners of the residence to leave the premises and then tried to enter the premises by the pool area attempting to open the doors and windows. A brick which appeared to be removed from the walkway was near Ms. Rapacinska. The inference is that she intended to use it to enter the home. I agree that this is not an inconsequential factor. However, the record of the case indicates that the incident occurred in December 2015. We are now 28 months later. There has been no indication whatsoever of any violence on the part of Ms. Rapacinska in the last 28 months. To the contrary; she has been compliant and submissive during the entire period of her incarceration at Southwest Detention Centre and during both of her hospital stays. Given that, I accept Dr. Nynkowski's opinion that she is not a threat to public safety.
Counsel for the AG suggest that a stay is not in the interests of the proper administration of justice. I agree with Ms. Krivel that a stay is an extraordinary remedy. I also agree with Ms. Krivel that international comity considerations militate against grating a stay. In my view, this is one of those cases where the extraordinary remedy is appropriate. Ms. Rapacinska has been in custody now for almost two years. Her physical and mental state have declined considerably. She is failing to thrive. She needs to obtain treatment for her tertiary syphilis and she needs to be with her family.
Ms. Rapacinska is held in a detention centre where she is unable to communicate with her guards, with her fellow inmates or with the staff. As I have previously indicated, she is clearly afraid.
There term "interests of justice" requires a consideration of justice to Ms. Rapacinska and to the public (R. v. Kearly, [2005] O.J. No 5394). As set out in R. v. Demers, 2004 SCC 46, [2004] S.C.J. No. 43, a determination of whether a stay is appropriate requires the court to balance the interest that would be served by the granting of a stay in proceedings against the interest that society has in having a final determination on the merits.
Justice is best served by staying the proceedings where the affront to fairness and decency is disproportionate to the societal interest in the subjection of the accused to criminal proceedings.
In the unique circumstances of this case, in my view, the continued incarceration of Ms. Rapacinska in the circumstances described above is "an affront to fairness and decency". I accept the importance of extradition proceedings. The extradition process is founded on the principles of reciprocity, comity and respect for differences in other jurisdictions (Canada v. Fischbacher, [2009] S.C.C. 70). Society's interest in seeing the extradition through is extremely important. However, even given the significant societal interest, in my view the affront to fairness and decency that would occur by continuing the proceeding is disproportionately larger.
The AG submits that it is premature to inquire into permanent unfitness at this juncture. Counsel for the AG submits that it is premature to contemplate a stay being invoked at first instance immediately after an unfitness ruling, thus eliminating the process and considerations outlined in the Criminal Code.
It seems to me that the power of the court to conduct an inquiry under s. 672.851(4) and, at the completion of that inquiry, to order a stay under ss. (7) was put in place to deal with the situation we have here. Ms. Rapacinska is permanently unfit and is not a significant threat to public safety. She falls squarely within the class of accused anticipated in Demers. The subsections were legislated as a response to Demers. I see no reason why I ought not to make use of them in this case.
Ms. Krivel helpfully provided some decisions of Review Boards for my consideration. In Re Birdsell, [2013] O.R.B.D. No. 1352, the accused was found unfit to stand trial in relation to a charge of assault causing bodily harm. The board unanimously found that Ms. Birdsell was unfit and permanently unfit due to chronic schizophrenia and mild mental retardation. The board further unanimously found that Ms. Birdsell did not represent a significant threat to the safety of the public. Notwithstanding, the board found that they were unable to bring themselves within s. 672.851(1)(a) of the Criminal Code (a section that allows the board to make a written recommendation to the court to hold an inquiry to determine whether a stay of proceedings should be ordered) because further hearings needed to be held. At paragraph 32, the board said:
The Board finds this an unfortunate circumstance because Ms. Birdsell in our opinion does not represent a significant threat to the safety of the public and this "glitch" in the legislation appears to have overlooked this possible outcome at an initial hearing.
There is no such glitch in the court's jurisdiction to order a stay under s. 672.851(7). Ms. Krivel made a very good argument that ss. (9) would indicate that a disposition must first be made and the board must first hold a disposition hearing before a stay ought to be ordered. I disagree with that interpretation of ss. (9). In my view, ss. (7) clearly gives the court authority to make the stay after the inquiry is completed, whether there was a prior disposition or not.
DISPOSITION
For the foregoing reasons, I find that Ms. Rapacinska remains unfit to have her extradition hearing and is not likely to ever become fit. I find that Ms. Rapacinska does not pose a significant threat to the safety of the public. I find that a stay is in the interests of the proper administration of justice. Accordingly, given my satisfaction of these factors, I exercise my jurisdiction to order a stay of the extradition proceedings against Ms. Rapacinska.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Nimrod Jenikovszky, certify that this document is a true and accurate transcript of the recording of The Attorney General for Canada v. Rapacinska, in the Superior Court of Justice, held at 245 Windsor Avenue, Windsor, Ontario, taken from Recording(s) No. 0899_245-CRTRM3_20180410_083303__10_HEBNERP.dcr, which has been certified in Form 1.
“May 1, 2018” “original signed by Nimrod Jenikovzky”
(Date) (Signature of authorized person)
Nimrod Jenikovszky
ACT ID: 4069134316
1-855-443-2748