COURT FILE NO.: CR-16-1893 DATE: 2019 07 30 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Applicant NJ Bridge and Keeley Holmes, for the Applicant

• and -

TRAE WORRIE Respondent Michael Moon and Leah Gensey, for the Respondent

HEARD: February 19, 2019

REASONS FOR RULING BARNES J.

Introduction

[1] On April 16, 2015, Trae Worrie killed his grandfather, Samuel Campbell, and attempted to kill his grandmother, Juanita Campbell. He is charged with second degree murder and attempted murder, contrary to the Criminal Code of Canada, R.S.C., 1985, c. C-46.

[2] This is a second trial proceeding by judge alone. The first trial resulted in a hung jury. The parties agree that evidence from the first trial shall apply to the second trial.

[3] The Crown seeks to cross-examine an expert with respect to protected statements in order to test the basis of that expert’s opinion, mainly for the purpose of establishing malingering. The protected statements were previously ruled inadmissible. Mr. Worrie therefore seeks a reconsideration of this issue and a finding that the protected statements may be admitted for the truth of their contents for the purposes of assessing a defence that he is not criminally responsible by reason of mental disorder. He submits that any interpretation of s. 672.21(3)(e) of the Criminal Code inconsistent with the admission of his protected statement for the truth of its contents violates his rights under s. 7, 11(c), 11(d) and 12 of the Canadian Charter of Rights and Freedoms. For reasons to follow, his application is dismissed.

Background

[4] Mr. Worrie concedes that the Crown has proved beyond a reasonable doubt that Mr. Worrie killed his grandfather and attempted to kill his grandmother. Mr. Worrie has put his mental state in issue and submits that he should be exempt from criminal responsibility because at the time of the commission of the offences he suffered from a mental disorder. This defence is available pursuant to s. 16 and 672.34 of the Criminal Code.

[5] As Mr. Worrie raised the defence, he has the onus of proving it on a balance of probabilities: R. v. Swain, 1991 SCC 104, [1991] 1 S.C.R. 933, at pp. 1012-3; and Criminal Code, s. 16(2)-(3).

[6] The court previously ordered a psychiatric assessment of Mr. Worrie’s mental health to determine whether he suffered from a mental disorder at the time he committed the offence that should exempt him from criminal responsibility by virtue of s. 16(1) of the Criminal Code.

[7] As part of the court-ordered assessment, Mr. Worrie made statements to forensic psychiatrist Dr. Komer. These statements are exculpatory in relation to the s. 16(1) Criminal Code issue. Dr. Komer concluded that Mr. Worrie is not criminally responsible by reason of mental disorder. Mr. Worrie’s statements form a significant and crucial portion of the basis for Dr. Komer’s expert opinion.

[8] The Crown is adamant that it does not seek to introduce Mr. Worrie’s protected statement for the truth of its contents, but wishes to cross-examine the experts on the protected statement and invite the trier of fact to find that Mr. Worrie is malingering. Mr. Worrie submits this constitutes the use of the protected statement for a substantive purpose, and therefore, in effect, the Crown is introducing the protected statement for the truth of its contents.

[9] Mr. Worrie seeks admission of this protected statement for the truth of its contents pursuant to s. 672.21(3)(e) of the Criminal Code. The Crown is opposed. Mr. Worrie does not intend to testify at trial.

Issues

[10] I must resolve the following issues:

1. Does s. 672.21(3)(e) permit an accused or the Crown to introduce the accused’s statement for the truth of its contents in order to determine the viability of a defence that Mr. Worrie is not criminally responsible by reason of mental disorder?

2. If the response to #1 is no, does this interpretation of s. 672.21(3)(e) violate Mr. Worrie’s rights under s. 7, 11(c), 11(d) and 12 of the Charter? If the answer to #2 is yes, do these Charter violations render the protective scheme regime under the Criminal Code unconstitutional?

[11] Since Mr. Worrie challenges the constitutionality of s. 672.21(3)(e), in practical terms, all these issues are subsumed in a single question: Can s. 672.21(3)(e) be interpreted in a manner consistent with the Charter, specifically s. 7, 11(c), 11(d) and 12?

Positions of the Parties

[12] The Crown submits that s. 672.21(3)(e) does not proscribe the application of applicable common law evidentiary exclusionary rules. Under the common law, Mr. Worrie’s protected statement is inadmissible. The Crown should be permitted to cross-examine Dr. Komer on the protected statement in order to test the basis for his expert opinion. In addition, the trier of fact should be permitted to use the fruits of this cross-examination to find that Mr. Worrie is malingering.

[13] Mr. Worrie submits that s. 672.21(3)(e) mandates the admission of the protected statement for the truth of its contents in an NCR hearing. In addition, the Crown’s purpose in seeking to use the fruits of the cross-examination of Dr. Komer on the protected statement as a basis to invite the trier of fact to make a finding that Mr. Worrie is malingering is a use of the protected statement for a substantive purpose. Thus, in practice the Crown is introducing the protected statement for the truth of its contents.

[14] According to Mr. Worrie, an interpretation of s. 672.21(3)(e) in accordance with the Crown’s position violates his rights under s. 7, 11(c), 11(d) and 12 of the Charter. In effect, any interpretation of s. 672.21(3)(e) in a manner that does not permit the admission of the protected statement for the truth of its contents is a violation of his Charter rights and thus renders the protected statement scheme under s. 672.21 unconstitutional.

[15] To discharge his onus, Mr. Worrie relies on the evidence of Dr. Komer, the forensic psychiatrist who conducted the court-ordered assessment of Mr. Worrie; Dr. Green, a forensic psychologist who conducted forensic testing of Mr. Worrie for Dr. Komer; and Dr. Gojer, a forensic psychiatrist retained by the defence to assess Mr. Worrie. The doctors are experts in their field and their testimony constitutes expert opinion.

[16] Dr. Komer testified that it was his opinion that Mr. Worrie suffers from a mental disorder; however, despite the mental disorder, at the time he committed the offences, he appreciated the nature and quality of his actions. Thus, he knew what he was doing and he foresaw that stabbing Mr. Campbell and Mrs. Campbell could result in physical injuries that could cause their deaths. However, his mental disorder rendered him incapable of knowing that his actions were wrong. In effect, he was unable to make a rational decision on whether to stab Mr. Campbell and Mrs. Campbell.

[17] Dr. Komer explained that in arriving at his decision, he relied on the following evidence from collateral sources: (i.) Mr. Worrie suffered a psychotic delusional episode at an Ab-Soul concert in October 2014. (ii.) He has suffered from hallucinations at least as of February 9, 2015, when he posted to the REDPIT site. (iii.) He was provisionally diagnosed with schizophrenia and hospitalized in February 2015. (iv.) Very shortly after stabbing Mr. Campbell and Mrs. Campbell, he told a police officer that he was telepathic and he spoke to God. (v.) The admitting nurse at Maplehurst Correctional Centre noted that he was experiencing potential hallucinations. Mr. Worrie told a psychiatrist, Dr. Clancy, that he spoke to God.

[18] Dr. Komer also relied on statements Mr. Worrie made to him. Mr. Worrie told him that he killed Mr. Campbell and attempted to kill Mrs. Campbell on the instructions of Jesus, God and/or Satan, in order to escape “the incubator”. The “incubator” was an entity through which he could speak to prominent people around the world, his family and others. These persons could speak to him through the incubator. The “incubator” also needled and assaulted him while he was sleeping.

[19] Part of the statements Mr. Worrie made to Dr. Komer are recorded in Dr. Komer’s September 3, 2015, report as follows: Mr. Worrie said that Jesus had to do with his case. He said he had to kill his family including his grandparents and go to a different place and kill. He said Jesus told him to go forth and do it and kill his grandparents to escape the incubator. He spoke of his offence involving a merciful killing. While speaking of this, he said he apologized to Jesus telepathically, and stated [that I got in quotations] “he can hear me,” [end of quotations.] He said he wanted to apologize to Jesus because it sounds terrible about Jesus telling him to kill his grandparents. He said he prayed to Jesus for freedom from the incubator and then Jesus told him to kill his grandparents and family. He said Jesus told him this, [quote] “spiritually,” [end of quotes] and he hears Jesus like hearing the incubator. He spoke of Jesus’ voice being projected in his head. He then smiled again and said that Jesus talked to him and told him to apologize for speaking about him. I questioned Mr. Worrie if he felt his actions were good or bad. He said he wanted freedom from the incubator which talked to him on a daily basis. He said the government, family and friends could be heard through the incubator. He stated [and this is a quote] “I thought it was something good,” [end of quote] because Jesus gave him approval to do it. He said at the time he did not think about being charged. He said he hopes to be acquitted, have his charges cleared and be set free. Mr. Worrie said that Jesus told him to go forth. He also said the government told him to kill his family through the incubator. He said he needed to listen in order to be free from the incubator.

[20] The prosecution called Dr. Green in reply. At Dr. Komer’s request, Dr. Green conducted some psychological testing of Mr. Worrie to determine whether he was malingering. She did not conclude that he was malingering. Dr. Green provided her findings to Dr. Komer.

[21] At the first trial, Mr. Worrie sought the admission of his protected statement for the truth of its contents. The Crown was opposed. I ruled in R. v. Worrie, 2018 ONSC 7687, at paras. 77-78, that s. 672.21(3)(e) should not be interpreted in a manner that admits Mr. Worrie’s protected statement for the truth of its contents:

In circumstances where the Crown does not seek to introduce a protected statement as an admission, these statements cannot be tendered for the truth of their contents.

In this case, the Crown does not seek to introduce the protected statements into evidence as an admission. Therefore, the protected statements to Dr. Komer and Dr. Green cannot be tendered for the truth of their contents at this trial. For reasons previously articulated, this conclusion also extends to the statement to Dr. Gojer. [Citations omitted.]

[22] The issue at the first trial, and also at this trial, is whether Dr. Komer’s opinion can be admitted for the truth of its contents. It is not disputed that under s. 672.21(1) of the Criminal Code, Mr. Worrie’s statement to Dr. Komer is a protected statement. Mr. Worrie submits that under s. 672.21(3)(e) of the Criminal Code, Mr. Worrie’s statement to Dr. Komer is admissible for the truth of its contents. The Crown submits that s. 672.21(3)(e) does not change the common law rule articulated in my previous ruling on this issue with respect to the inadmissibility of exculpatory statements by an accused who does not testify: see Worrie, at para. 65. In this second trial, the Crown still does not seek to introduce the protected statements into evidence under the admissions against interest exception to the hearsay rule. Mr. Worrie has asked me to reconsider my decision in the first trial and has now introduced a Charter challenge to s. 672.21(3)(e).

Discussion / Analysis

Can s. 672.21(3)(e) be interpreted in a manner consistent with the Charter, specifically ss. 7, 11(c), 11(d) and 12?

Legislative Framework

[23] The “not criminally responsible by reason of mental disorder” defence (“NCR”) is available by statute. Section 672.34 of the Criminal Code states:

Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.

[24] A person is exempt from criminal responsibility by reason of mental disorder if at the time of the commission of the act or omission, two conditions are established, as outlined in Swain, at p. 1014; R. v. Oommen, 1994 SCC 101, [1994] 2 S.C.R. 507; R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135, at para. 54; and Criminal Code, s. 16(1):

1. The accused suffered from a mental disorder or a “disease of the mind”, and

2. That mental disorder rendered the accused incapable of appreciating the nature and quality of the act or omission, or of knowing that it was wrong.

[25] Every person is presumed not to suffer from a mental disability: Criminal Code, s. 16(2). The person who asserts that the accused was suffering from a mental disorder at the time of the commission of the offence such as to be not criminally responsible has the burden of proof. Proof is on a balance of probabilities: Criminal Code, s. 16(2)-(3).

[26] In this case the Crown has proven the actus reus of the offence and Mr. Worrie has put his mental state in issue. Therefore, the burden of proof shifts to the person asserting that the accused was suffering from a mental disorder at the time of the offence to discharge that onus on a balance of probabilities: see R. v. David (2002), 61 O.R. (3d) 1 (C.A.), 2002 ONCA 45049, at paras. 47-56. In this case, this burden of proof rests with Mr. Worrie.

[27] A protected statement is defined in s. 672.21(1) of the Criminal Code and has these components: 1) it is a statement provided by the accused 2) in the course of a court-ordered assessment, and 3) it is made to the recipient designated in the order or anyone acting under that recipient’s direction.

[28] Section 672.21(2) renders inadmissible, without an accused’s consent, protected statements and references to them in circumstances where production of such statements will be otherwise compelled. Pursuant to s. 672.21(3), this rule is subject to these enumerated exceptions:

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of (a) determining whether the accused is unfit to stand trial; (b) making a disposition or placement decision respecting the accused; (c) determining, under section 672.84, whether to refer to the court for review a finding that an accused is a high-risk accused or whether to revoke such a finding; (d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child; (e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict; (f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or (g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding.

Statutory Interpretation

[29] A literal reading of s. 672.21(3)(e) leads to the conclusion that the Crown can introduce a protected statement for the truth of its contents in a s. 16(1) hearing without the accused’s consent. This is the interpretation Mr. Worrie suggests. Mr. Worrie is consenting to the use of his statement in that fashion. In addition, he submits that even though the Crown takes the position that it is not introducing his protected statement, the Crown’s decision to cross-examine the experts on the statement, with the intent of inviting the trier of fact to make a finding that Mr. Worrie is malingering, in effect, introduces Mr. Worrie’s statement for a substantive purpose and thus the Crown is seeking to introduce the statement.

[30] The Crown submits that it does not seek to introduce the statement. The Crown only seeks to cross-examine the experts on the statement to challenge the basis for Dr. Komer’s opinion and to invite the jury to find that Mr. Worrie was malingering. According to the Crown, this does not mean it is introducing the protected statement into evidence.

[31] The Supreme Court in R. v. G.(B.), 1999 SCC 690, [1999] 2 S.C.R. 475, at paras. 40-42, reiterated the current approach for interpreting a statutory provision as follows:

a) The principle that legislation overrides the common law is applied strictly. Thus, if Parliament intends to proscribe the use of the applicable common law principles, it must expressly say so.

b) In the absence of compelling reasons to the contrary, legislation must be interpreted in accordance with or limited to the objects of the legislation.

c) The presumption of validity provides that the legislation must be interpreted in a manner consistent with the Charter. To achieve this result, a court should not add or delete anything to the legislation in order to make it consistent with the Charter. In circumstances where the legislation is open to more than one interpretation, the court should not adopt an interpretation that is inconsistent with the Charter, thus rendering the legislation of no force and effect.

[32] In G.(B.), the Supreme Court considered how s. 672.21(3)(f) should be interpreted. According to s. 672.21(2), the use of an accused’s protected statement without her consent is prohibited, subject to certain exceptions, one of which is specified in s. 672.21(3)(f): evidence of the statement may be admitted for the purpose of “challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously”.

[33] A literal reading of that exception leads to the conclusion that with or without the accused’s consent, the Crown can use the protected statement to challenge the accused’s credibility where there is a material inconsistency between the statement and the accused’s testimony. In G.(B.), however, the court ruled that this provision is not that simple.

[34] In G.(B.), the accused provided a statement to the police where he confessed to engaging in sexual acts with his young cousin. He provided this statement after the police had cautioned him and given him his rights to counsel. Upon being charged, he underwent a court-ordered assessment whereby he made statements to the psychiatrist about the police confession. The statements made to the psychiatrist were protected statements, but the accused argued that those statements were inadmissible because they arose from a prior inadmissible statement, namely the police confession. It was unclear from the trial judge’s reasons whether G.B.’s statement to the police was voluntary. Therefore, the Supreme Court conducted its analysis on the assumption that the statement to the police was involuntary and thus inadmissible: at paras. 19-20.

[35] The incriminating protected statement G.B. gave to the court-ordered psychiatrist, including the psychiatrist’s comments, was reproduced in G.(B.), at para. 17, as follows:

[translation] When he was confronted with the statement made to the police, he said to us: “Since I didn’t know what to say, I told a story and since it was the first time I had dealings with the police, I was a bit uncomfortable since it is because of my aunt...”. When he was asked why [D.C.] or his aunt ... would have spoken to the police, he gave me the following answer: “I don’t know why they are doing that, it may be that my aunt is angry with me because I let them down even though I was always with them, I helped them, I always looked after [D.]!” and added: “I don’t know why they are doing that when we were always good friends ... I said what I did because I was uncomfortable, I was afraid!”. He later added: “Someone who hadn’t done that would find it hard to talk about it in detail and I said it like it was!”. He is also aware that what he is alleged to have done is wrong because he said: “I know that assaulting a child, that it’s not done and that it can have serious consequences. If I am found guilty, I can be sent to prison ... but I regret having said that!”. When I went over the details of his statement with him and pointed out that it explains fairly well what happened between him and [D.C.], he replied: “Yes, I know”, and hastened to add “maybe the police misunderstood!”.

However, it was especially when I compared his statement with that of [D.C.] and showed him that there were remarks or phrases which were similar that he expressed astonishment, immediately searching for a way out, and said: “I made up a story.... It’s as if [C.] had copied my story.” But finally, when faced with the evidence that [D.C.]’s statement was made before his, he was confounded and caught off guard, he said to me: “Now that doesn’t make sense. I’ve just learned something. The story I made up, it’s the same.” He then became very tense, worried: “I was nervous when I spoke to the police and I didn’t know what to say.” Then I asked him the following question: “Were you so nervous with the police that you told the truth?”. That was when he agreed, answering in the affirmative.

[36] The psychiatrist concluded that G.B. had a limited mental capacity but was fit to stand trial; he was very accommodating to authority figures; and in circumstances where G.B was stressed and/or anxious, his answers were unreliable. The second psychiatrist came to the same conclusion as the first.

[37] The Crown sought to introduce G.B.’s protected statements to the court‑ordered psychiatrist. Based on the psychiatrist’s assessments, the trial judge denied the request. G.B. later testified and denied any sexual activity with the victim. The Crown cross-examined G.B. on inconsistencies between his protected statements and his trial testimony. The purpose was to challenge G.B.’s credibility at trial. A literal reading of the section suggests that the Crown’s actions were permitted by statute.

[38] G.B. was convicted and appealed. The issue was whether G.B.’s protected statement could be utilised to challenge his credibility at trial. The Court of Appeal ordered a new trial on the basis that the trial judge erred in permitting the use of the protected statements to challenge G.B.’s credibility in the context of the case. The Crown appealed. The Supreme Court dismissed the appeal.

[39] The Supreme Court in G.(B.) concluded:

1. G.B.’s statement to the psychiatrists was a protected statement under s. 672.21 of the Criminal Code and it constituted an admission: at para. 18.

2. As a general rule, legislation may expressly override the common law; however, legislation must be interpreted and limited in accordance with the objects of the legislation and a court should not interpret legislation that is open to more than one interpretation in a manner that is inconsistent with the Charter and hence of no force and effect: at paras. 40-42.

3. The “twin intentions” of Parliament in enacting s. 672.21 of the Code were to strike a balance between (a) protecting accused persons from the risk that incriminating statements to a doctor during a court‑ordered assessment may be used as evidence against them, thus thwarting effective psychiatric assessment, and (b) the need to learn “the truth about the accused and the offence”: at paras. 38, 41.

4. This balance would be difficult to achieve if rules of evidence precluding the admissibility of evidence were set aside. Such an interpretation would be contrary to the intention of Parliament: at para. 41.

5. In this case, at common law, the subsequent statements to the psychiatrist (the protected statements) were tainted by the involuntary statement to police. Therefore, under the confessions rule, the protected statements were inadmissible confessions. Parliament cannot make an inadmissible statement admissible for any purpose without violating s. 7 of the Charter. In effect, s. 672.21 should be interpreted in a manner consistent with the confessions rule and the Charter: at paras. 43-45.

[40] The issue in G.(B.) was whether s. 672.21(3)(f) could be interpreted in a manner that violated the confessions rule (which prohibits the admission of involuntary statements). The Supreme Court answered this question in the negative and restricted its decision to this narrow issue. The court explicitly noted, at para. 46:

It is unnecessary to rule on the application of the various rules of evidence to the admissibility of a protected statement. The issue of whether the confessions rule applies directly to a psychiatric assessment ordered under s. 672.11, and whether the psychiatrist is a person in authority in this regard will have to be decided when a suitable case presents itself.

[41] This passage in G.(B.) highlights the importance of adopting caution when extrapolating appellate decisions to encompass issues not put before the appellate court for resolution. This is the approach adopted by Mr. Worrie in relying on R. v. LaPierre, 2018 ONCA 801; R. v. Genereux (2000), 154 C.C.C. (3d) 362 (Ont. C.A.), 2000 ONCA 17020; and R. v. Oommen, 1994 SCC 101, [1994] 2 S.C.R. 507, as support for his position. The issue of whether an accused’s protected statement can be admitted for the truth of its contents by virtue of s. 672.21(3)(e) was never considered by the court in any of those cases.

[42] Mr. LaPierre pleaded guilty to killing a 74-year-old man. Prior to trial, he was examined by two psychiatrists, who concluded that the s. 16 defence of “not criminally responsible” was not available to him. He was sentenced to life with ineligibility for parole for 17 years.

[43] Mr. LaPierre initially appealed only his sentence. Within the framework of the sentence appeal, Tulloch J.A. ordered an assessment pursuant to s. 672.11 of the Criminal Code to determine whether, at the time Mr. LaPierre committed the offence, he suffered from a mental disorder so as to exempt him from criminal responsibility by virtue of s. 16(1) of the Criminal Code.

[44] This was a court-ordered assessment. Thus, any statement Mr. LaPierre made to Dr. Bradford as part of this assessment was a protected statement. Dr. Bradford concluded that at the time he committed the offences, Mr. LaPierre was suffering from treatment-resistant schizophrenia and he was not capable of knowing that killing the victim was morally wrong. Mr. LaPierre sought to introduce the opinion of Dr. Bradford as fresh evidence and also decided to appeal his conviction.

[45] The issues for the Court of Appeal to decide were whether fresh evidence tendered by Mr. LaPierre should be accepted; if the fresh evidence was accepted, whether the disposition should be a finding of NCR or a new trial on the NCR issue alone; and whether the period of parole ineligibility should be reduced: at para. 19.

[46] The Court of Appeal ultimately rejected Dr. Bradford’s opinion because he did not apply the correct legal test and because evidence called at trial was incongruent with a successful NCR defence, specifically Mr. LaPierre’s conduct prior to and after the offence; statements he made to the police; his statement to a fellow inmate that he was “going to use the insanity defence”; and his admission to Dr. Gojer that “ [h]e was aware that the killing was legally and morally wrong ” (not a protected statement): at paras. 32-40. Dr. Gojer’s assessment was not ordered by the court and any statements Mr. LaPierre made to him were not protected statements. It is apparent that the comment was used substantively by the court on the basis that it was an admission on the NCR issue and thus admissible as an exception to the hearsay rule.

[47] In Oommen, the accused killed a friend as she slept in his apartment. He told the police that he believed that she was part of a conspiracy to kill him. Mr. Oommen was assessed by a psychiatrist. There is no indication of whether the assessment was a result of an assessment ordered by the defence, the Crown or the court. No mention is made of whether the statement Mr. Oommen provided to the psychiatrist was a protected statement. There was no issue that Mr. Oommen killed the victim and that the killing was due to his delusions: at para. 9. The only issue was “whether this delusion exempted Mr. Oommen from criminal responsibility under s. 16(1) of the Criminal Code on the ground that he lacked capacity at the relevant time to know the difference between right and wrong”: at para. 10.

[48] Mr. Oommen gave statements to the police and a lawyer which explained his state of mind at the time he committed the offence. As such, those statements formed another basis for the psychiatrist’s opinion on Mr. Oommen’s state of mind at the time he committed the offence other than what Mr. Oommen told the psychiatrist. This is a circumstance very different from this case where the only evidence of Mr. Worrie’s mental state, at a time closest to and during the commission of the crime, is Mr. Worrie’s protected statement to Dr. Komer and his statement to Dr. Gojer who conducted the defence assessment. In this case, Mr. Worrie seeks to introduce his protected statement for the truth of its contents through expert opinion.

[49] The circumstances in Genereux are also different from this case. Mr. Genereux appealed from his conviction for first degree murder. He consented to a court-ordered assessment on the condition that the purpose of the assessment was to determine Mr. Genereux’s fitness to stand trial and whether a s. 16(1) defence was available to him. At trial, the protected statement was ruled voluntary and the Crown was permitted to use the statement as part of proof of the actus reus and the mens rea of the offence: at para. 27. The Ontario Court of Appeal held that the protected statement was only admissible for the purpose for which Mr. Genereux gave his consent: at para. 31. An interpretation of the protected statement regime in a manner that violated the agreement of the parties and permitted the use of the protected statement to prove the actus reus or mens rea of the offence would be incongruent with one of the legislative objectives of Parliament in enacting the protected statement regime, which is to encourage full and frank disclosure from the accused in the court-ordered assessment process: at paras. 33-34. A new trial was ordered.

[50] None of the cases relied on by Mr. Worrie addressed the issues he has raised in this motion.

1. Did Parliament Proscribe the Application of Common Law Evidentiary Rules?

[51] Section 672.21(2) prohibits the use of a protected statement without an accused’s consent, unless it falls under an exception. As discussed above, one of those exceptions under s. 672.21(3)(e) is to admit the statement for the purpose of assessing a s. 16(1) NCR defence.

[52] A literal interpretation of this section suggests that an accused or the Crown can introduce the protected statement into evidence for the truth of its contents as evidence for the trier of fact to consider in determining whether the accused was not criminally responsible for committing the criminal act by reason of mental disorder. However, the first step in interpreting the statute is to determine whether Parliament proscribed the application of common law evidentiary rules.

[53] Parliament did not proscribe the application of common law rules of evidence to the protected statement regime. The Supreme Court in G.(B.) interpreted s. 672.21(3)(f) in accordance with the confessions rule. A strict application of the principle that legislation trumps the common law means that in the absence of an express indication by Parliament that the common law rules do not apply, the section shall be interpreted in accordance with applicable common law rules of evidence: G.(B.), at paras. 18, 40, 43. Therefore, I will examine the impact of applicable common law evidentiary rules to this provision.

Common Law Rules

[54] I approach each applicable common law evidentiary rule in a step-by-step fashion in a process akin to climbing a ladder. After the assessment of each applicable evidentiary rule, the next applicable rule is considered. All conclusions reached at common law are subject to whether the conclusion accords with the objectives of Parliament and is consistent with the Charter. I begin with the applicable common law rules of evidence.

Preposterous Statements as Original Evidence of Mental State

[55] Preposterous statements made by an accused are admissible as original evidence that the accused suffers from a mental disorder: R. v. Kirkby (1985), 21 C.C.C. (3d) 31 (Ont. C.A.), 1985 ONCA 3646, at pp. 54-56. Those statements are not offered as proof of any fact asserted in them and are therefore not hearsay: R. v. Fell, 2003 ONSC 49919 (“W.G.F.”), at para. 434. Mr. Worrie’s statements to the experts that he was instructed by an incubator and God to kill his grandparents are statements of a preposterous nature and can be considered by the trier of fact as original evidence that he suffers from delusions and hallucinations.

Protected Statements Tendered by the Prosecution

As One of the Exceptions under s. 672.21(3)

[56] Absent the accused’s consent, the Crown can only tender a protected statement for a purpose enumerated under s. 672.21(3). Mr. Worrie seeks an interpretation which favours the admission of Mr. Worrie’s protected statement for the truth of its contents through the receipt of the opinion of an expert.

The Confessions Rule

[57] A protected statement can only be tendered by the prosecution for an enumerated purpose when the voluntariness of the protected statement is not in issue: G.(B.), at paras. 43-45. All statements, whether inculpatory or exculpatory, made by an accused to a person in authority which the prosecution seeks to introduce into evidence, must be proved to have been made voluntarily by the accused. The prosecution bears the onus of proof beyond a reasonable doubt. A statement introduced in this fashion is admissible for the truth of its contents. This is the confessions rule: R. v. Piche, 1970 SCC 182, [1971] S.C.R. 23, at paras. 41-43; R. v. Hodgson, 1998 SCC 798, [1998] 2 S.C.R. 449, at paras. 12, 14-30; and R. v. Monette, 1956 SCC 68, [1956] S.C.R. 400, at para. 5.

[58] A person in authority is typically a person who is engaged in the arrest, detention or prosecution of the accused. A common example is a police officer: R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 37, 43. The issue of whether the recipient of an accused’s statement is a person in authority is resolved from the perspective of the accused – that is, a person in authority is a person for whom there is a reasonable basis for the accused to believe that she can influence the prosecution against her: Hodgson, at paras. 33-34. The recipient of an accused’s statement is not a person in authority merely because of their occupation or status. When the recipient’s status is in dispute, the accused bears the burden of proving that the recipient of her statement is a person in authority: R. v. T.(S.G.), 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 22.

[59] In this case, Mr. Worrie has conceded the voluntariness of his protected statement. Therefore, I do not have to decide if a psychiatrist is a person in authority.

Admission against Interest:

[60] As a general rule, an accused’s statement is hearsay and presumptively inadmissible. As a function of the adversarial process, the prosecution may tender an accused’s statement under the admissions exception to the hearsay rule. The prosecution must establish on a balance of probabilities that the accused is the declarant. Once this is established, the trier of fact may consider the admission together with all the other admissible evidence to determine whether the prosecution has proved the offence beyond a reasonable doubt: R. v. Evans, 1993 SCC 86, [1993] 3 S.C.R. 653, at pp. 668-9.

[61] Under the protected statement regime, if the prosecution establishes an exception under s. 672.21(3), the prosecution can tender a protected statement for the truth of its contents under the admissions against interest exception to the hearsay rule. Under those circumstances, the trier of fact can consider the protected statement together with other admissible evidence to resolve the enumerated purpose under consideration in s. 672.21(3): W.G.F., at paras. 444‑6; and R. v. Rogers, 2017 BCSC 1410, at paras. 94-95. In this case, the enumerated purpose is whether Mr. Worrie is not criminally responsible by virtue of suffering from a mental disorder at the time he committed the offences: Criminal Code, ss. 16(1), 672.21(3); W.G.F., at paras. 444-6; and R. v. Rogers, 2017 BCSC 1410, at paras. 94-95.

As a Prior Inconsistent Statement

[62] As a general rule, the prosecution can tender a prior statement of an accused as a prior inconsistent statement. In such circumstances, the prior inconsistent statement can be used by the trier of fact to assess the accused’s credibility as a witness and also to determine whether the accused is guilty of the offence: R. v. Mannion, 1986 SCC 31, [1986] 2 S.C.R. 272, at p. 278; and R. v. Groves, 2013 BCCA 446, 301 C.C.C. (3d) 430, at paras. 43-44.

[63] Under the protected statement regime, s. 672.21(3)(f) restricts such cross-examination to material inconsistencies, and the prior inconsistent statement is utilised to resolve the issue under consideration, which must be one enumerated under s. 672.21(3). Dambrot J. in W.G.F., at para. 447, elaborates on how a protected statement can be used by the Crown when tendered by the Crown:

Similarly, in my view, the Crown is entitled to tender protected statements to exemplify inconsistencies in the accused's accounts of the homicide and his mental condition at the time, in order to advance the position that he is malingering. This, in turn, would permit the Crown to point to the inconsistencies and argue: (1) that reliance on any of his accounts by the experts undermines the weight that should be accorded to their opinions; and (2) that the trier of fact should be cautious about relying on any of the accused's accounts. This is consistent with the prevailing rules of evidence. The Crown may tender, for example, multiple voluntary statements made to the police by an accused, not to prove their truth, but to show through their inconsistency that no version given by the accused should be treated as reliable. It is also consistent with the policy underlying s. 672.21, as exemplified by s. 672.21(3)(g). That paragraph creates a separate exception to the inadmissibility of protected statements when the statement is tendered to challenge the credibility of an accused where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously. In this case, obviously, that paragraph has no application because the accused did not testify, and the credibility of his testimony is not in issue. The policy underlying the exception, however, is virtually indistinguishable from the use the Crown proposes here. Indeed, counsel for the accused, when asked during oral argument, while not agreeing that I could use the statements for this purpose, could offer no policy basis for not being able to make that use of them.

Accordingly, I will use Mr. Fell’s statements for the purpose of assessing the credibility of his account to the police, and the weight to be attached to the expert opinion evidence, but solely in relation to my consideration of the issues raised by s.16 of the Criminal Code.

To Show the Basis for an Expert’s Opinion

[64] The very nature of a protected statement is that it is created by the accused pursuant to a court-ordered assessment. The recipient of the protected statement is the psychiatrist. The purpose of the assessment is to obtain the expert’s opinion on the applicable section 672.21(3) issue. The protected statement forms part of the basis of the expert’s opinion and the introduction of such a statement is through the receipt of expert opinion. In effect, a protected statement is wrapped up in the expert’s opinion. This gives the protected statement special status and subjects it to an additional evidentiary rule, unlike a statement made to a non-expert witness.

[65] An accused cannot lead evidence from an expert to prove that what he told the expert about his delusions or his mental illness is true. This evidence is hearsay: R. v. Abbey, 1982 SCC 25, [1982] 2 S.C.R. 24, at pp. 411-2; and W.G.F., at para. 432. Under these circumstances, the protected statement can be introduced, not for the truth of its contents, but for the purpose of showing the basis for the expert’s opinion. One of the ways a trier of fact can determine what weight to give to an expert’s opinion is to examine the basis for that opinion.

[66] The protected statement is hearsay evidence. Where the expert’s opinion is based on hearsay and non-hearsay evidence, there is a direct correlation between the weight placed on the expert’s opinion and the quality of the hearsay evidence: R. v. Lavallee, 1990 SCC 95, [1990] 1 S.C.R. 852, at pp. 893, 897; Palma, at pp. 7-15; and W.G.F., at para. 432.

[67] In R. v. Palma (2000), 149 C.C.C (3d) 338 (Ont. S.C.), 2000 ONSC 22807, Marcello Palma killed three people. His defence was not criminally responsible by reason of mental disorder under s. 16(1) of the Criminal Code. Mr. Palma did not testify. The principle support for his position was the evidence of a psychologist and a forensic psychiatrist who both examined him and repeated what he had told them in their testimony at trial.

[68] In reply, the prosecution called Dr. Klassen, a forensic psychiatrist who assessed Mr. Palma pursuant to a court-ordered assessment after a prosecution application under s. 672.11(b) of the Code. The voluntariness of Mr. Palma’s statement was not in dispute. The statement Mr. Palma made to Dr. Klassen was pursuant to a court order and thus was a protected statement under s. 672.21.

[69] The prosecution sought to tender the statement. Prosecution and defence disagreed on the purpose for which the protected statement could be tendered. The defence submitted that once the prosecution tendered the statement, it could be admitted for the truth of its contents under the admissions exception to the hearsay rule. The prosecution submitted that the protected statement could only be admitted for the purpose of assessing the basis of the expert’s opinion: Palma, at pp. 4-7.

[70] Watt J. (as he then was) concluded that there is nothing in s. 672.21(3)(e) that precludes the application of the rules of evidence. The hearsay rule is engaged only when the protected statement is introduced for the truth of its contents. It could not be admitted under the principled exception to the hearsay rule because it was neither necessary nor reliable under such circumstances. The protected statement constituted an admission against interest and thus fell under the admission exception to the hearsay rule. However, the protected statement was a statement made to an expert and could only be admitted for the purpose of assessing the expert’s opinion, which is based in whole or in part on the protected statement: at pp. 7-15.

[71] In this case, the prosecution submits that it does not wish to tender Mr. Worrie’s protected statement for its truth. The prosecution seeks to cross‑examine Dr. Komer and Dr. Green on the protected statement and Dr. Green on her psychological testing for the purpose of challenging the basis of Dr. Komer’s opinion. This is to assist the trier of fact in determining the weight to give to that opinion. As noted previously and as decided in Palma, this is a permissible use of the protected statement.

[72] The prosecution further submits that the trier of fact can rely solely on the fruits of Dr. Komer and Dr. Green’s testimonies, on the contents of the protected statement, without reference to any other evidence, to make a finding that Mr. Worrie was malingering. Neither Dr. Komer or Dr. Green concluded that Mr. Worrie was malingering. The practical effect of this suggested use by the prosecution, is that the prosecution wishes to utilise the fruits of cross-examination of the experts on hearsay evidence (the protected statement), which it does not seek to tender under any hearsay exception, the same way as is open to the trier of fact to consider the prior inconsistent statement of an accused, not only in assessing the credibility of the accused but also in determining the ultimate issue. In this case, whether Mr. Worrie was malingering. This has direct impacts on the outcome of his NCR defence.

[73] The experts are not the accused. The accused in this case will not testify. The prosecution does not seek to tender Mr. Worrie’s protected statement. The protected statement is the only account from Mr. Worrie on his state of mind at the time he committed the acts and his reason for committing the acts. Thus, under these circumstances, the prosecution cannot use the protected statement to show that Mr. Worrie is malingering, but the protected statements can be used to show and challenge the basis of the expert’s opinion; for example, the expert’s opinion that the accused may or may not be malingering. In this case, Dr. Komer concluded that Mr. Worrie was not malingering. The trier of fact can use the fruits of the examination to assess the weight to give Dr. Komer’s opinion.

[74] I do not accept Mr. Worrie’s submission that the extensive nature of the Crown’s cross examination means that the Crown has tendered Mr. Worrie’s protected statement. Subject to issues of relevance and reasonableness, a party should not be unreasonably constrained in the cross examination of an expert on the basis for the expert’s opinion. Such a circumstance will leave the trier of fact with an incomplete picture of the basis for the expert’s opinion. This will hamper the trier of fact’s ability to decide what weight to give to the said opinion and to decide whether to accept or reject the expert’s opinion.

[75] Should Mr. Worrie testify, it will be open to the prosecution to cross-examine him on any material inconsistency between his protected statement, his trial testimony and any previous accounts of the homicide he may have provided. The trier of fact can then use the prior inconsistent protected statement in their assessment of his credibility and in the determination of the NCR issue.

Protected Statements Tendered by the Accused

As a Prior Consistent Statement

[76] Mr. Worrie is consenting to the introduction of his protected statement for the truth of its contents as evidence of his mental and emotional state at the time he committed the acts. Mr. Worrie’s statement amounts to a prior consistent statement on the NCR issue. An accused cannot tender a prior consistent statement because such a statement is self-serving and unreliable: R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 20. This is subject to an exception that an accused’s prior consistent statement can be admitted, not for the truth of its contents, but as evidence of her physical, mental or emotional state at the time she was first confronted with the allegations, if she meets these conditions:

1. The accused must testify;

2. The self-serving statement must made when the accused was arrested and first accused of the crime; and

3. The statement must be spontaneous.

[77] Under such circumstances, the self-serving statement is not admissible for the truth of its contents but rather is admissible for the limited purpose of showing the accused’s demeanor when first confronted with allegations of committing the crime. This reaction may be more reliable and probative than her testimony years later in a courtroom: Edgar, at paras. 24, 72; and R. v. Liard, 2015 ONCA 414, 327 C.C.C (3d) 126, at paras. 48-50.

2. Which Interpretation is in Accordance with the Intent of Parliament?

[78] Parliament did not proscribe the application of the common law evidentiary rules to the interpretation of s. 672.21(3)(e). As noted above, the intent of Parliament in enacting s. 672.21 was to strike a balance between protecting accused persons from the risk that incriminating statements to a doctor “during court ordered assessments” may be used against them and the need to learn “the truth about the accused and the offence”: G.(B.), at paras. 38, 41.

[79] The twin intentions of parliament are summarised in G.(B.), at paras. 38 and 41, as follows:

In a speech in the House of Commons on October 4, 1991 (during second reading of the bill), the then Minister of Justice, the Honourable Kim Campbell, identified the interests the legislation was seeking to reconcile. She said:

At present there is a risk that incriminating statements made to a doctor during a court‑ordered psychiatric assessment may be used as evidence against the accused. As a result, many defence counsels advise their clients to refuse to answer questions during such assessment. This deprives the doctor of a very important source of information about the accused and undermines the effectiveness of the court order.

At the same time, concern has been expressed by prosecutors that completely prohibiting the use of this evidence would deprive the court of important information needed to learn the truth about the accused and the offence.

(House of Commons Debates, vol. III, 3rd sess., 34th Parl., at p. 3296.)

Parliament thus sought a balance between the need to learn the truth and the protection of accused persons ordered to undergo an assessment of their mental capacity.

The object of the legislation in this case is to strike a balance between ascertaining the truth and facilitating an effective psychiatric assessment. This balance would be difficult to achieve if the rules of evidence which provide for the exclusion of otherwise inadmissible evidence were set aside. If the exception does in fact allow previously excluded evidence to be reintroduced indirectly, accused persons will refuse to answer some of their psychiatrist’s questions for fear this evidence may be reintroduced at trial. The cessante ratione legis rule thus stands in opposition to the appellant’s interpretation since that interpretation is contrary to one of the objects of the Act. [Emphasis added.]

[80] The parliamentary objective to promote the determination of the truth shall be severely impaired if a literal interpretation of s. 672.21(3)(e) is adopted. If the court were to adopt the accused’s argument on this point, this would mean an accused could provide a self-serving statement through an expert to the trier of fact for the truth of its contents. The expert’s opinion is based on relevant information about the accused and the offence, including an assessment of the accused’s protected statement. Thus, in many instances, the state would be deprived of the opportunity to test the veracity of a protected statement that is admitted for the truth of its contents. This would leave the trier of fact with a distorted and unreliable picture of what constitutes the truth and impair Parliament’s objective of ascertaining the truth.

[81] It remains an open question as to whether a psychiatrist is a person of authority under the protected statement regime. While this is not an issue for me to decide on this motion, for the purpose of this analysis, I assume that a psychiatrist is a person of authority and therefore a precondition of admissibility is that any protected statement must comply with the confessions rule.

[82] Provided statutory perquisites are satisfied, a court can order an accused to undergo a psychiatric assessment to address the NCR issue. The court cannot compel an accused to cooperate with a court-ordered assessment. Such a circumstance would produce a protected statement obtained in violation of the confessions rule, which is granted constitutional status under s. 7 of the Charter. It follows, therefore, that a conclusion that the court ordered psychiatrist is not a person in authority would eliminate the application of the confessions rule and produce a result contrary to s. 7 of the Charter.

[83] The courts in W.G.F., Rogers and Worrie were not asked to consider the Charter implications of the permissible use of the protected statement under the common law. To permit the prosecution to tender a protected statement carte blanche for the truth of its contents under the admission against interest exception would cast a chill on the parliamentary objective of facilitating an effective psychiatric examination. Under such a circumstance, there is a real risk that any incriminating statement made by the accused during the assessment could be used against the accused on the NCR issue, with or without the accused’s consent and regardless of whether he chooses to testify. It is plain and obvious that participation in an assessment would give the state a carte-blanche ability to use incriminating protected statements as long as the use falls within one of the enumerated exceptions.

[84] The following permitted evidentiary uses under the common law evidentiary rules, are not contrary to Parliament’s objectives for enacting the protected statement regime: the protected statement can be tendered by the prosecution under s. 672.21(3)(e) to cross-examine the expert in assessing the basis for the expert’s opinion on the NCR issue; should the accused testify and satisfy the pre‑conditions to admissibility set in Edgar, the protected statement is admissible as a prior consistent statement for the purpose of assessing the accused’s reaction at the time he was first confronted with the offence; and should the accused testify, the prosecution can cross-examine him on any material inconsistency between his testimony and the protected statement under s. 672.21(3)(f); and the accused can be cross examined on material inconsistencies between the protected statement and any other accounts of the homicide he may have provided. Under, these circumstances, the trier of fact may consider a prior inconsistent protected statement for the truth of its contents on the section 672.21(3) issue under consideration. On the assumption that a psychiatrist is a person in authority, none of these uses are permitted unless the voluntariness of the protected statement is not in issue. This interpretation of s. 672.21(3)(e) strikes the appropriate balance between the twin objectives of Parliament in enacting the protected statement scheme.

3. Is this Interpretation in Accordance with the Charter?

[85] Mr. Worrie submits that an interpretation of s. 672.21(3)(e) in a manner that prohibits its literal interpretation – i.e., that his protected statement is admissible for the truth of its contents at an NCR hearing – violates his s. 7, 11(c), 11(d) and 12 Charter rights and renders the protected statement regime unconstitutional.

[86] Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[87] The creation of a protected statement engages issues such as the right to silence and the right against self-incrimination. These rights are part of the principles of fundamental justice enshrined in s. 7. This is also reflected in the confessions rule. The essence of these rights is the right to choose whether or not to speak to agents of the state: R. v. Hebert, 1990 SCC 118, [1990] 2 S.C.R. 151, at p. 164; and R. v. White, 1999 SCC 689, [1999] 2 S.C.R. 417, at paras. 40-44.

[88] The rationale for the right against self-incrimination is to protect against unreliable confessions and to prevent abuses by the state: White, at para. 43. The right against self-incrimination is not absolute. A contextual approach must be adopted when assessing its application: R. v. Fitzpatrick, 1995 SCC 44, [1995] 4 S.C.R.154, at paras. 25, 31. As noted previously, the confessions rule applies to the protected statement regime, which provides an additional s. 7 safeguard.

[89] Section 11 of the Charter reads:

Any person charged with an offence has the right (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal[.]

[90] The rational for s. 11(c) is that the prosecution has the burden of proving the case. The accused enjoys the benefit of the right to silence and the protection against self-incrimination: s. 13. Section 11(d) imposes the burden of proof beyond a reasonable doubt on the prosecution. The prosecution must make out a case against the accused before the accused responds to the case against her: Dubois v. R., 1985 SCC 10, [1985] 2 S.C.R. 350, at pp. 357-8. Thus, the protected statement regime does not infringe ss. 11(c) and (d) of the Charter.

[91] Section 12 of the Charter reads:

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[92] In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 77, the Supreme Court set out an analytical framework for challenging mandatory minimum sentencing provisions under s. 12 of the Charter. The first question to answer is whether the provision amounts to a cruel and unusual punishment (and/or treatment) of the accused, or in other words, a grossly disproportionate sentence. If it does, the court must consider reasonably foreseeable hypotheticals to determine if the provision can result in cruel and unusual punishment (and/or treatment) for other accused persons. If the answer to this question is in the affirmative, a s. 12 breach has been established.

[93] The principles of fundamental justice and the right not to be subjected to any cruel and unusual treatment or punishment require that any detention order or release with onerous conditions must be accompanied by a meaningful process of ongoing review which takes into account the circumstances of each individual case: Charkaoui v. Canada, 2007 SCC 9, [2007] 1 S.C.R. 350, at paras. 96, 107.

[94] A court may only make an order for an assessment if it has jurisdiction over an accused in respect of an offence, and the assessment is restricted to the mental condition of the accused: s. 672.11 of the Criminal Code. The order cannot be made arbitrarily; the order must be based on an evidentiary foundation which gives the court reasonable grounds to believe that an assessment is necessary to address any of the matters enumerated in s. 672.11(a) to (e) of the Code.

[95] A court may make an assessment order at any stage of the proceedings on application of the accused or the prosecutor: s. 672.12(1) of the Criminal Code. There are no limits on the ability of the accused to make a request. The prosecution, however, can only make a request where the prosecution is by summary conviction if the accused has raised the issue of fitness or the prosecutor satisfies the court that there are “reasonable grounds to doubt that the accused is fit to stand trial”: s. 672.21(2) of the Criminal Code. The prosecutor may apply for an assessment to determine the issue of NCR where the accused puts her “mental capacity for criminal intent into issue” or the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible due to mental disorder: s. 672.21(3) of the Criminal Code.

[96] An assessment order must specify the service or person who will conduct the assessment, or the hospital where the assessment will be conducted; whether and how long the accused shall be detained in custody during the assessment period; and the period that the order is to be in force: s. 672.13 of the Criminal Code. There are time limits for the duration of an assessment order: s. 672.14(1) and 672.15 of the Criminal Code. There is a provision for the accused or prosecutor to apply to vary an assessment order under s. 672.18 of the Criminal Code, and an accused cannot be compelled to submit to treatment on assessment, per s. 672.19 of the Criminal Code. Given this extensive legislative background which lays out significant protections for the accused, with a meaningful procedure for ongoing review, the process that leads to the creation of a protected statement under s. 672.21(1) does not constitute cruel and unusual treatment or punishment of the accused.

[97] Mr. Worrie submits that the statutory process for creating a protected statement means that the court can use the coercive power of the state to subject an accused, against his will and without his consent, to a “psychiatric regime with the consequence of generating powerfully inculpatory evidence which is handed over to the [prosecution]”. In addition, s. 672.21(f) of the Criminal Code allows the prosecution to use the protected statement to cross-examine the accused on any material inconsistency between his testimony and the protected statement.

[98] Mr. Worrie further submits that while s. 657.3(3)(c) of the Criminal Code requires the accused to provide notice to the prosecution about its intention to introduce defence expert evidence, there is no obligation to provide the prosecution with contents of the report. Therefore, the accused is not vulnerable to the possibility of cross‑examination by the prosecution on inconsistencies between her testimony at trial and the statement provided to the defence expert; however, under the protected statement regime, the prosecution has access to the expert report from the court-ordered assessment. Section 672.21(3)(f) of the Criminal Code allows the prosecution to cross‑examine the accused on a material inconsistency between his testimony and the protected statement. Thus, the accused would have been compelled to produce evidence to incriminate himself to the benefit of the state.

[99] Mr. Worrie’s position is inaccurate. There is no obligation on Mr. Worrie, despite the court order, to cooperate in the assessment. Any protected statement generated by the assessment process must be voluntary and for reasons previously articulated, the prosecution cannot simply tender a protected statement as an admission. A contrary interpretation would be inconsistent with s. 7, 11(c), 11(d) and 13 of the Charter, as it would allow the state to compel the accused to provide potentially incriminating evidence against herself. In addition, subjecting a protected statement to the confessions rule means that the use permitted under s. 672.21(f) is the same as the use that can be made of a statement of the accused made outside the protected statement regime.

[100] For all these reasons, there is no reasonably foreseeable hypothetical in which the provision can result in cruel and unusual punishment for other accused persons. The statutory interpretation I have described does not infringe Mr. Worrie’s Charter rights and his application is dismissed.

Barnes J.

Released: July 30, 2019