Court File and Parties

COURT FILE NO.: 15-SA5126 DATE: 20190228 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN – and – R.M.P.

Counsel: Lia Bramwell, for the Crown Cedric Nahum, for R.M.P.

HEARD AT OTTAWA: December 11 and 14, 2018, and February 5, 12 and 13, 2019

Decision Concerning Fitness

RYAN BELL J.

Overview

[1] In January 2018, R.M.P. was found guilty of two counts of sexual assault. The Crown is seeking an order under s. 752.1 of the Criminal Code that R.M.P. be remanded for an assessment for use as evidence in a dangerous offender or a long-term offender application. On July 16, 2018, during the Crown’s reply submissions, defence counsel raised concerns about R.M.P.’s fitness to continue to participate in the s. 752.1 application.

[2] The defence requested, and the Crown did not oppose, my making a series of orders pursuant to ss. 21 and 22 of the Mental Health Act, R.S.O. 1990, c. M.7 for the purpose of assessing R.M.P.’s fitness. Section 21(1) of the Mental Health Act permits the court to order a psychiatric examination of a person awaiting sentence where there is “reason to believe” that the person “suffers from mental disorder.” Section 22(1) provides for the person to be remanded for admission to a psychiatric facility for a period of not more than two months.

[3] At the request of the defence, a hearing was held to determine R.M.P.’s fitness to continue to participate in the sentencing process, which includes s. 752.1 of the Criminal Code. The report of Dr. S. N. Brathwaite dated August 21, 2018, the reports of Dr. Mathieu Dufour (co-authored with Dr. Kasbia) dated October 28, 2018 and December 10, 2018, and the report of Dr. Dufour dated February 5, 2019 were filed in evidence. Dr. Dufour, R.M.P., and M.A.D., who befriended R.M.P. prior to his convictions, speaks with him almost daily and sees him twice weekly, testified at the hearing.

[4] The defence asks me to find that R.M.P. is, at the present time, unfit to participate in the s. 752.1 application. The defence asks that a treatment order be made pursuant to s. 22 of the Mental Health Act.

[5] The Crown submits there is “overwhelming” evidence that R.M.P. is fit to continue with the s. 752.1 proceeding. Should I find that R.M.P. is unfit to participate, the Crown’s position is that the relief sought by the defence is unavailable at law.

The Test for Fitness

[6] The test for unfitness to stand trial is found in s. 2 of the Criminal Code which provides:

“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 or object of the proceedings,

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

(c) communicate with counsel.

[7] Part XX.1 of the Criminal Code provides the procedural framework for the application of the test in s. 2. An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial: s. 672.22. The onus is on the party wishing to displace this presumption: s. 672.23(2). In this case, the onus rests on the defence.

[8] The trier of fact determines the issue of fitness: ss. 672.26 and 672.27.

[9] The leading case on the test for fitness is R. v. Taylor (1992), 11 O.R. (3d) 323 (C.A.) in which the Court of Appeal, at p. 336, adopted the following version of the “limited cognitive capacity” test:

Under the “limited cognitive capacity” test propounded by the amicus curiae, the presence of delusions do not vitiate the accused’s fitness to stand trial unless the delusion distorts the accused’s rudimentary understanding of the judicial process. It is submitted that under this test, a court’s assessment of an accused’s ability to conduct a defence and to communicate and instruct counsel is limited to an inquiry into whether an accused can recount to his/her counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence. It is not relevant to the fitness determination to consider whether the accused and counsel have an amicable and trusting relationship, whether the accused has been cooperating with counsel, or whether the accused ultimately makes decisions that are in his/her best interests.

[10] The limited cognitive capacity test strikes an “effective balance” between the rationale for the fitness rules – “to ensure that the process of determining guilt is as accurate as possible, that the accused can participate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is maintained, and that, if necessary, the determination of a fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way” – and the constitutional right of the accused to choose his own defence and to have a trial within a reasonable time (Taylor, at p. 338).

[11] The test enunciated in Taylor has been adopted by the Supreme Court of Canada as the working standard for the operating mind aspect of voluntariness (R. v. Whittle, [1994] 2 S.C.R. 914, at p. 933).

[12] The limited cognitive capacity test was reaffirmed by the Court of Appeal in R. v. Morrissey, 2007 ONCA 770, 87 O.R. (3d) 487, at para. 27, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 102:

[The limited cognitive capacity test] 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.

[13] After referring to the rationale underpinning the fitness for trial concept as set out in Taylor, the Court of Appeal in Morrissey, at para. 36, summarized the purpose of the fitness inquiry as follows:

An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice such as the right to be present at one’s own trial and the right to make full answer and defence…Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness. [Citations omitted.]

[14] I agree with Trotter J., as he then was, in R. v. Adam, 2013 ONSC 373, 294 C.C.C. (3d) 465, at para. 29, appeal to Ont. C.A. dismissed on other grounds, 2012 ONCA 582, that the fitness inquiry demands an assurance that, despite suffering from a mental disorder, the accused person is able to receive a fair trial. In this context, meaningful participation refers to the ability to defend oneself.

Fitness Post-Verdict

[15] While the Criminal Code does not confer jurisdiction on a trial judge to deal with the issue of fitness after the verdict has been rendered, the Crown and the defence agree that it can also be raised post-verdict. Courts have followed different approaches in addressing this jurisdictional issue.

[16] In R. v. Balliram (2003), 173 C.C.C. (3d) 547 (Ont. S.C.) (also known as R. v. G.B.), the offender, G.B., was convicted of serious offences, including sexual assault and unlawful confinement. After the conviction, but prior to sentencing, G.B. became unfit as a result of a mental disorder. The Crown sought to have G.B. declared a dangerous offender. McWatt J. concluded that s. 2, defining unfitness to stand trial, and s. 672.23(1) of the Criminal Code, directing when the issue of fitness may be tried, violated G.B.’s rights under the Canadian Charter of Rights and Freedoms because they did not address situations where an accused became unfit after a verdict was rendered.

[17] In concluding that the appropriate remedy was to read words into the two sections that made them applicable when an accused became unfit after verdict but before sentencing, at para. 31, McWatt J. relied on the Supreme Court of Canada’s decision in R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 415:

…the facts that justify the sanction are no less important than the facts that justify the conviction; both should be subject to the same burden of proof. Crime and punishment are inextricably linked: “It would appear well established that the sentencing process is merely a phase of the trial process.” Upon conviction the accused is not abruptly deprived of all procedural rights existing at trial. He has the right to counsel, a right to call evidence and cross-examine, a right to give evidence himself. [Citation omitted.]

[18] In R. v. Nehass, 2016 YKSC 63, the court concluded that it had jurisdiction to order a fitness assessment at the sentencing stage of the proceedings under both the common law and the court’s inherent jurisdiction. With respect to the court’s inherent jurisdiction, at para. 36, the court relied on the following passage from Cunningham v. Lilles, [2010] 1 S.C.R. 331, at para. 18:

Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate to administer justice. Inherent jurisdiction includes the authority to control the process of the court, prevent abuses of process and ensure the machinery of the court functions in an orderly and effective manner… [Citation omitted.]

[19] A third approach was followed by Code J. in R. v. Jaser, 2015 ONSC 4729. After the verdicts had been received, amicus brought a motion pursuant to s. 21 of the Mental Health Act, seeking a psychiatric assessment of Mr. Esseghaier to assist on sentencing. A s. 21 order was made. As a result of the psychiatrist’s report and her testimony at the sentencing hearing, amicus then requested the court to order a full assessment of Mr. Esseghaier’s fitness to stand trial pursuant to s. 672.11(a) of the Criminal Code.

[20] Code J. concluded, at paras. 45-47, that because the Criminal Code provisions relating to fitness to stand trial do not extend to the sentencing phase of proceedings, an assessment order under s. 672.11 could not be made. At para. 50, Code J. agreed with McWatt J. in Balliram 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”. Code J. did not adopt the “reading in” remedy used by McWatt J. in Balliram; instead the application for a psychiatric assessment relating to fitness proceeded pursuant to s. 21 of the Mental Health Act.

[21] It was primarily on the basis of Code J.’s reasoning in Jaser that I determined I had jurisdiction to make the orders pursuant to ss. 21 and 22 of the Mental Health Act relating to R.M.P.’s fitness to continue with the s. 752.1 application.

Analysis

[22] There is ample evidence that R.M.P. suffers from a mental disorder. Following a 30-day psychiatric assessment at the Forensic Assessment Unit of the Royal Ottawa Mental Health Centre, Dr. Dufour concluded that R.M.P.’s presentation is consistent with “genuine psychotic symptoms from schizophrenia.” Dr. Brathwaite also reported that R.M.P. “is presenting with symptoms of psychosis.”

[23] The Crown does not dispute that R.M.P. suffers from a mental disorder. However, the fitness inquiry does not end there. The question is whether R.M.P.’s mental disorder precludes his meaningful presence and meaningful participation in the s. 752.1 proceeding.

[24] The concepts of meaningful presence and meaningful participation underlie each of the three branches of s. 2 of the Criminal Code. Without a rudimentary understanding of the nature and possible consequences of the proceedings and the ability to communicate with counsel, an accused person will be unable to receive a fair trial. And, as Trotter J., as he then was, observed in Adam, at para. 35:

On a more fundamental level, trial judges must always be concerned with preventing miscarriages of justice. A miscarriage of justice does not always involve actual prejudice to an accused person. Public confidence in the administration of justice may also be shaken and undermined by the appearance of unfairness… [Emphasis in original.]

[25] In determining R.M.P.’s fitness to continue with these proceedings, I have considered and relied upon the reports of Dr. Brathwaite and Dr. Dufour. Both provided opinions that R.M.P. is “fit to stand trial.” On cross-examination, Dr. Dufour confirmed his opinion regarding R.M.P.’s fitness in the context of a s. 752.1 application. I have also had the benefit of R.M.P.’s testimony. I found M.A.D.’s testimony to be of little assistance to the issue I must determine on this hearing.

[26] In this case, the defence has failed to satisfy me on the balance of probabilities that R.M.P. is unfit to continue to participate in the s. 752.1 proceeding. I find that notwithstanding his mental disorder, R.M.P. is able to meaningfully participate in the proceedings. I have reached this conclusion for the following reasons.

[27] The evidence discloses that R.M.P. understands the respective roles of defence and Crown counsel, and my role as the judge. Dr. Brathwaite and Dr. Dufour reported that R.M.P. stated that the role of defence counsel is to “help me out. He is supposed to help me to get out of prison,” Crown counsel “is supposed to prosecute, to do the charges…puts people in prison,” and as for the judge, “he is the boss. At the end, he does his ruling and gives a sentence.” In describing his relationship with defence counsel, R.M.P. testified that “we work together.”

[28] R.M.P. understands that I, as the trial judge, found him guilty of two counts of sexual assault. When he was asked why he was in court, he testified that “I’m here about something I didn’t do. It was consent.” He testified, correctly, that he has been in custody since last March when his bail was revoked. He is aware that the next step in the process is sentencing.

[29] R.M.P. understands the purpose of a fitness hearing: “to see if I’m fit – ok mentally.”

[30] R.M.P. correctly observed that the proceedings in January 2019 were to hear the defence’s mistrial application, the mistrial application was because “she lied” (in reference to an argument advanced by defence counsel on the application), and the mistrial application was dismissed.

[31] With regard to the s. 752.1 proceeding, R.M.P. testified that Crown counsel asked for an assessment but that defence counsel “didn’t want that.” R.M.P. described that he would go to the hospital for the assessment; after the report is prepared, he would return to court. He testified that “the judge is going to decide if I’m dangerous or not” based on “the papers and the people.” He described a dangerous offender as someone who is a “danger to reoffend.” He believes that if he is found to be a dangerous offender, he will go to prison for the rest of his life. He recalled hearing Crown counsel refer to a dangerous offender proceeding. Based on R.M.P.’s testimony, and Dr. Dufour’s reports and testimony, I am satisfied that R.M.P. is following and understands the object of the proceedings.

[32] Defence counsel submitted that as a result of R.M.P.’s delusions – which were evident during his testimony – R.M.P. is not meaningfully present, and his ability to participate in making full answer and defence is impaired. I am not persuaded that this is the case. Dr. Dufour reported that with the increase in dosage of his antipsychotic medication, R.M.P.’s thought process appears to have become more logical and linear. I note, parenthetically, that this is consistent with M.A.D.’s observations, as a lay person, that R.M.P.’s “state” has improved since he has been in detention. Dr. Dufour described R.M.P.’s speech as “mildly disorganized.” While R.M.P. reverted, at times, to delusional beliefs when discussing his legal situation, Dr. Dufour reported that R.M.P. was “redirectable” and they were able to discuss the court proceedings without any significant difficulty.

[33] I observed and listened carefully to R.M.P. as he gave his testimony. He reverted to his delusions quite often during his examination in chief, but he did so less frequently during cross-examination. More importantly, it was evident that R.M.P. is capable of being redirected back to the topic at hand and able to accept and internalize information provided to him, notwithstanding his mental disorder. For example, when it was explained to R.M.P. that Crown counsel’s “brown book” – with which he thought she was performing black magic – was actually a copy of the Criminal Code, R.M.P. accepted and absorbed that information as reflected by his comment that Crown counsel needed the current year’s edition.

[34] R.M.P.’s level of understanding of the proceedings need not be comprehensive or nuanced; it must, however, be sufficient to enable him to participate in the proceedings in a meaningful way (R. v. Blackjack, 2010 YKTC 117, at para. 16). In Blackjack, the accused’s fixation with getting the proceedings over with by pleading guilty, and his expectation that this would result in freedom made clear to the court that the accused had no real appreciation of the nature and consequences of the proceedings. Unlike the accused in Blackjack, R.M.P. is following the proceedings, he is capable of being redirected and he accepts information provided to him. I am satisfied that he understands what is at stake.

[35] In giving his evidence, R.M.P. demonstrated himself to be a fair historian. While R.M.P. voiced his belief that R. died in 2014, that he is “a biotech, like a robot,” and that he is a time-traveller, R.M.P. used the first person throughout much of his narrative. In re-examination, he stated that “[Crown counsel] wants me to go for an assessment.” He understands that this fitness hearing is “to see if I’m fit to stand trial.” I am satisfied that R.M.P. understands the nature and consequences of these court proceedings and understands and appreciates his own involvement in them. Unlike the accused before the Court of Appeal in R. v. King, 2007 ONCA 713, R.M.P. sees himself as having a role to play in the proceedings.

[36] When he met with Dr. Dufour in December, R.M.P. was able to note the addition of a stimulant medication, and in February, R.M.P. advised Dr. Dufour that his stimulant medication had been increased and that an antidepressant had been added approximately one month before. In Morrissey, the Court of Appeal observed at para. 47 that the appellant’s mental disorder, which precluded him from being able to provide a reliable account of the events immediately preceding and surrounding the homicide, did not shelter him from criminal responsibility or exempt him from trial as unfit. In that regard, the appellant was in no different position than those individuals who suffer from amnesia, or memory loss resulting from physical disease or psychological trauma (Morrissey, at para. 47). R.M.P. is not suffering from memory loss and, notwithstanding his mental disorder, he is able to recount his personal history, including his criminal record, to relay changes to his medications, and to follow the proceedings.

[37] The defence has referred me to R. v. Nehass, 2017 YKSC 4. The court in that case concluded that Mr. Nehass was unfit to participate in dangerous offender proceedings. The assessing psychiatrist expressed concerns that Mr. Nehass could not instruct counsel without the intrusion of psychotic delusions, delusions the court found were distorting Mr. Nehass’ basic understanding of the judicial system and the proceedings. By contrast, notwithstanding the intrusion of delusions from time to time, R.M.P. has repeatedly displayed a more than basic understanding of the respective roles played by the Crown, defence counsel, and the judge. He is following the proceedings. He is aware that the next step is sentencing and that a possible dangerous offender application is pending. He retained information provided to him, for example, that the case of a dangerous offender sentenced to an indeterminate sentence is reviewed after seven years.

[38] With respect to his ability to communicate and instruct counsel, Dr. Dufour expressed no concerns similar to those outlined by the assessing psychiatrist in Nehass. Dr. Dufour reported that R.M.P. is fluent with his speech and although he reverted to delusional beliefs when discussing his legal situation,

He was able to converse regarding his court process during our assessment…We expect that his communication abilities will remain at the same level when he will give instructions to his counsel and to the court. It is possible that with the stress related to his court appearance, his thought process may become more disorganized.

[39] When R.M.P. reverted to delusional beliefs during his testimony, he was capable of being redirected. Despite the associated stress of testifying in court and being cross-examined, R.M.P. was responsive and was able to articulate his understanding of the process.

[40] I am satisfied that it would not be unfair to proceed with the s. 752.1 proceeding, nor would the proceedings offend the dignity of the judicial process. This is not a case like Adam, where Trotter J., as he then was, concluded at para. 35 that if Mr. Adam’s behaviour as a self-represented accused were repeated at trial, in front of a jury, the proceedings would degenerate into a “cruel spectacle” and a reasonable observer would “surely be troubled by the obvious fact that Mr. Adam is unable to defend himself, due to a debilitating mental illness.” R.M.P. understands the role of defence counsel: “we work together.” His responses reflect that he is not oblivious to what transpires in court and that he is able to follow and respond appropriately to information provided in the court proceedings.

[41] Given my conclusion that R.M.P.’s delusions do not prevent his meaningful presence and participation, it is not necessary for me to consider Dr. Dufour’s opinion that, at times, R.M.P. exaggerates his delusions.

[42] For these reasons, the defence has failed to establish, on a balance of probabilities, that R.M.P. is unfit to continue with the s. 752.1 application. Accordingly, I need not address counsel’s submissions regarding the available remedy in the event that I found R.M.P. to be unfit.

Madam Justice Robyn M. Ryan Bell Released: February 28, 2019

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – R.M.P. Decision Concerning Fitness Justice Ryan Bell Released: February 28, 2019