COURT FILE NO.: 16-19535
DATE: 2018/02/08
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
PHILLIP WILSON
D E C I S I O N
BEFORE THE HONOURABLE JUSTICE CHARLES T. HACKLAND
On Thursday, December 14, 2017 at OTTAWA, Ontario
APPEARANCES:
M. Cunningham Counsel for the Crown
M. Lindsay Counsel for the Federal Crown
R. Addelman/S. Robinson Counsel for the Accused
ONTARIO COURT OF JUSTICE
T A B L E O F C O N T E N T S
Exam. Cr- Re-
WITNESS: in-Ch. exam. Exam.
N/A
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
N/A
Legend
[sic] - Indicates preceding word has been reproduced verbatim and is not a typographical error but is a spoken error.
(ph) – Indicates preceding word has been spelled phonetically as pronounced and is not a typographical error. This is due to the Court Reporter not confirming spelling of names during the proceeding and and putting into the notes.
[indiscernible] - Indicates an inability to transcribe due to audio interference, not speaking directly into mic, not speaking clearly or talk-talk-overs.
Transcript Ordered: January 3, 2018
Transcript Completed: January 3, 2018
Decision Approved for Release: February 8, 2018
Ordering Party Notified: February 8, 2018
THURSDAY, DECEMBER 14, 2017
HACKLAND,J.: (Orally)
The Crown moves for an Order pursuant to Section 752.1(1) of the Criminal Code remanding Phillip Wilson for an assessment by a designated expert, Dr. Philip Klassen, a forensic psychiatrist.
Prior to the Assessment Order being made, it was agreed that counsel would make submissions with respect to the choice of expert under Section 752.1 of the Criminal Code. Apart from that, Mr. Wilson is consenting to the Order for Assessment.
On September the 28th, 2017 Mr. Wilson was convicted of 39 indictable offences pertaining to physical and sexual assaults on a number of women. The position of Mr. Wilson is that he should be assessed pursuant to Section 752.1 by a different forensic psychiatrist, specifically, Dr. Paul Fedoroff.
In terms of general principles on an application such as this, the Court is obligated to consider the qualifications and experience of the proposed assessors as well as the location of the proposed assessment and other logistical matters, such as the availability of the assessor.
It was held by Justice Janet Wilson in R v. Torres (2007) OJ 1885 that perceived neutrality between the Crown and the Defence is an important factor in the choice of assessor.
The Crown draws my attention to the recent Decision of my colleague, Justice Phillips, in R. v. K.C., 2017, ONSC 5803 in which he stated, and I quote:
I take the central question to be whether the person proposed can perform the assessment required. No further vetting is called for by the Court beyond, simply, determining whether the proposed expert can perform the function contemplated by Section 752.1 in the general context of Part 24.
Justice Phillips appears to suggest that as long as the person being proposed by the Crown is capable of performing the assessment, the offender has no entitlement to participate in the matter.
However, Justice Paciocco, of the Ontario Court of Justice, as he then was, took the view in R v. J.V. (2015) ONCJ 766 that the Crown must not unilaterally select the psychiatrist for the Section 752.1 assessment and that the offender is entitled to propose an expert and to make
submissions on the issue.
In my view, the Defence is entitled to make submissions on an application such as this, however, as a general proposition, this is a Crown application and they should be entitled to choose the assessor provided that the Court is satisfied that in all the relevant circumstances the candidate proposed by the Crown is qualified and is willing and able to provide a timely assessment.
In this case, it is evident from the materials before the Court that Dr. Klassen is fully qualified; has performed more than 120 to 130 dangerous offender assessments and testified in over 100 hearings. Counsel for the offender has no specific objection to Dr. Klassen but points out that Dr. Fedoroff has similar outstanding qualifications. The Court is advised that both doctors could commence the assessment almost immediately.
However, the Crown raises what I think is an important issue in a case such as this in which the offender has not previously been convicted of sexual offences. A dangerous offender designation is reserved, essentially, for offenders who are not treatable and, therefore, remain a serious risk to public safety.
The Crown points out that Dr. Fedoroff has
taken the position, in at least two cases, that he would not be prepared to say that an offender is a dangerous offender until the offender has been treated and has failed such treatment. He took this position in R v. K.O. (2013) ONSC 955 (see paragraphs 146 and 169) and in R v. Cheeseman, a 2003 unreported Decision of Justice Dorval of the Ontario Court of Justice.
The law would permit a person who has not previously been treated to be designated a dangerous offender in appropriate circumstances, and for an assessor to have formed a firm opinion that he could not conclude that such a person was untreatable because he had not been given treatment and failed, amounts to a pre-judgment of an essential issue in the proceedings.
Assuming Dr. Fedoroff maintains this point of view, the Crown could reasonably conclude that, at most, they could achieve a long-term offender designation in circumstances of cases such as this.
Accordingly, in all the circumstances, I am satisfied that Dr. Philip Klassen will be designated as the expert to conduct the assessment of the offender, Phillip Wilson, pursuant to Section 752.1 of the Criminal Code and it is ordered accordingly.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Tracy Kinach, certify that this document is a true and accurate transcription, to the best of my skill and ability, of the recording of R. v. Phillip Wilson in the Superior Court of Justice held in Courtroom No. 33 at 161 Elgin Street, Ottawa, Ontario taken from CD No. 0411_CR33_ 20171214_ 084935_10_HACKLAC.dcr which has been certified in Form 1 by Leona M. Scott.
THIS IS NOT A CERTIFIED COPY UNLESS MY ORIGINAL SIGNATURE APPEARS BELOW IN BLUE INK
February 8, 2018 Tracy Kinach
MAG Authorized – ACT ID#4842683823
Member of Ottawa Court Transcription Services (FORMERLY Court Reporter Group of Ottawa.ca)
www.OttawaCourtTranscription Services.ca
Member in Good Standing - The Court Reporters'
Association of Ontario
PROFESSIONAL STANDARDS | BEST PRACTICES | CODE OF CONDUCT PROTOCOLS
PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE REPORTER
Ontario Regulation 158/03 – Evidence Act