R. v. Daou , 2021 ONSC 8422 — Superior Court of Justice | minicounsel

COURT FILE NO.: 13-M7868

DATE: 2021/12/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADRIAN DAOU

Tim Wightman and Louise Tansey for the Crown

Joseph Addelman for Adrian Daou

HEARD: June 29 and September 27, 2021

AMENDED ruling oN APPLICATION for A court-ordered psychiatric assessment

The original Judgment dated December 21, 2021 was corrected on December 22, 2021, at paraS. 1 aND 6. THe explanation FOR the correction is appended.

A PUBLICATION BAN UNDER S. 648 OF THE cRIMINAL cODE PREVENTS ANY DISTRIBUTION, PUBLICATION OR BROADCAST OF THIS RULING UNTIL SUCH TIME AS THE COURT RULES THAT THE BAN IS lifted.

justice Sally Gomery

[1] Adrian Daou is charged with the first-degree murder of Jennifer Stewart. On December 3, 2021, I dismissed his application for a court-ordered psychiatric assessment under s. 672.11 of the Criminal Code, with reasons to follow. These are my reasons.

Background

[2] Ms. Stewart was killed on August 20, 2010. Mr. Daou was charged with her murder in 2013, based on statements he made to correctional and police officers while he was incarcerated for other offences.

[3] At his first trial in late 2015, Mr. Daou claimed that the statements he made to the police and prison guards about his role in Ms. Stewart’s death were false. Alternatively, he relied on s. 16(1) of the Code, which provides that:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

[4] In support of this defence, Mr. Daou called expert evidence from Dr. Brad Booth, a forensic psychiatrist. Dr. Booth was asked by defence counsel to assess Mr. Daou’s mental state at the time Ms. Stewart was killed. In his October 2014 report, and again when testifying as a witness at the first trial, Dr. Booth expressed the opinion that Mr. Daou suffered from schizophrenia in August 2010 and did not know the wrongfulness of his actions when he killed Ms. Stewart.

[5] The jury at Mr. Daou’s first trial convicted him of first-degree murder. In June 2021, the Court of Appeal allowed his appeal, finding that the trial judge did not instruct the jury to disregard inadmissible testimony by a police officer. The Court set aside the conviction and ordered a new trial.

[6] Mr. Daou’s second trial for first-degree murder is set to take place before a judge and jury in Fall 2022.

Analysis

[7] Pursuant to s. 672.11(b) of the Code,

a court may order an assessment of the mental condition of the “if it has reasonable grounds to believe that such evidence is necessary to determine … whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1)”.

The Court may make the order at any stage of the proceedings based on a motion by the accused or the Crown, on its own initiative: s. 672.12(1).

[8] Mr. Daou intends to call Dr. Booth as a witness again at the second trial. He nonetheless seeks an order for a second assessment, saying he should be entitled to explore any and all defences available to him. He argues that the bar for ordering an assessment is low, and that s. 672.11(b) should be liberally interpreted. He argues that no prejudice would arise from the order, as it will not delay the second trial.

[9] Having reviewed the evidence on the application, I declined to make the order sought.

[10] The Crown argued that the statutory prerequisite in s. 672.11(b) was simply not met. The Court may order an assessment if it has reasonable grounds to believe that such evidence is “necessary” to determine whether an accused was not criminally responsible for his actions when they committed a crime. Since Dr. Booth has already conducted an assessment, and there is no suggestion that his evidence will not be available at Mr. Daou’s second trial, no further assessment is “necessary”.

[11] This argument implies that the Court could never order an assessment under s. 672.11(b) if an assessment of an accused’s mental state at the time of the offence had already been produced. I do not find it necessary to consider this categorical interpretation of s. 672.11(b), because I do not find that an assessment is necessary in the specific circumstances of this case.

[12] The Crown also argued that a second assessment report could cause jurors to be in appropriately swayed by prior consistent statements. Defence counsel responded that it is not unusual to have two assessments by two different psychiatrists put before the jury, even if they reach the same conclusion about the accused’s mental state at the time of the offence. In such a case, the trial judge simply gives a limiting instruction to the jury.

[13] In some circumstances, a court might find it relevant and helpful to hear from more than one expert with respect to an accused’s mental state at the time of an offence. Again, however, the issue I must address is not whether it is ever appropriate to have two assessments at trial, but rather whether I should order a second assessment in this case.

[14] To be found not criminally responsible under s. 16 of the Code, an accused must establish their mental state at the time of the offence with which they are charged. As held in R. v. Bouchard-Lebrun, 2011 SCC 51, at para. 51:

[A]n insane person is incapable of morally voluntary conduct. The person’s actions are not actually the product of his or her free will. It is therefore consistent with the principles of fundamental justice for a person whose mental condition at the relevant time is covered by s. 16 Cr. C. not to be criminally responsible under Canadian law. Convicting a person who acted involuntarily would undermine the foundations of the criminal law and the integrity of the judicial system.

[15] An assessor must therefore not consider the accused’s mental state when they are set to be tried, but rather at the time that they allegedly committed the crime for which they are charged.

[16] In assessing Mr. Daou in 2014, Dr. Booth took steps to obtain information from a wide variety of sources. He interviewed Mr. Daou twice, first in July 2013 and then again in March 2014. Dr. Booth reviewed Mr. Daou’s medical records from the Ottawa-Carleton Detention Centre, considered twelve mental health questionnaires he completed in 2014, and canvassed materials disclosed by the Crown to the defence, including video interviews of Mr. Daou by the police. Dr. Booth also interviewed Mr. Daou’s parents, former co-workers, and a childhood friend, and read the transcript of the testimony of Mr. Daou’s former girlfriend at the preliminary inquiry.

[17] The defence has not suggested that another assessor would have access to additional sources of information that would shed light on Mr. Daou’s mental state in August 2010, when Ms. Stewart was killed. The only evidence filed with the application is a November 2021 report from Dr. Mishra, a psychiatrist in Penetanguishene, Ontario. Further to an order issued by the Court, Dr. Mishra assessed Mr. Daou’s fitness to stand trial. Dr. Mishra concluded that, although Mr. Daou still suffers from schizophrenia, he is fit to stand trial. Dr. Mishra relies on medical and other records that post-date Dr. Booth’s report, including Dr. Booth’s own records with respect to Mr. Daou. There is nothing in Dr. Mishra’s report, however, that suggests that these newer records are relevant to an assessment of Mr. Daou’s mental state in August 2010.

[18] Accordingly, there is no basis for me to find either that Dr. Booth overlooked information at his disposal when he prepared his October 2014 report, or that new sources of information have emerged that would give another assessor further insight into Mr. Daou’s state of mind in 2010. In fact, assuming that memories become less reliable over time, a second assessor would be forced to rely on less reliable information than Dr. Booth, because they would be interviewing people (including Mr. Daou) about events that happened more than eleven years ago.

[19] The defence points out that, if Mr. Daou had the money to do so, he could retain a psychiatrist for another private assessment. He argues that it is not fair that Mr. Daou would be deprived of the means to further support his s. 16(1) defence, just because he lacks funding available to some other defendants.

[20] I agree with the Crown that Mr. Daou’s lack of funding is not a relevant consideration for the purpose of this application. I would find otherwise if Mr. Daou’s mental state at the time of Ms. Stewart’s murder had never been assessed. In that case, however, the defence could easily establish that an assessment was “necessary” pursuant to 672.11(b) of the Code.

[21] I conclude that there are no reasonable grounds to believe that a further assessment of Mr. Daou is necessary to determine whether he was, in August 2010, capable of appreciating the nature and quality of the act of killing a person or of knowing that it was wrong.

Justice Sally Gomery

Released: December 22, 2021

APPENDIX

The first sentence of paragraph 1 previously stated:

Adrian Daou is charged with the second-degree murder of Jennifer Stewart.

Paragraph 1 now reads as follows:

Adrian Daou is charged with the first-degree murder of Jennifer Stewart.

Paragraph 6 previously stated:

Mr. Daou’s second trial, this time for second-degree murder, is set to take place before a judge and jury in Fall 2022.

Paragraph 6 now reads as follows:

Mr. Daou’s second trial for first-degree murder is set to take place before a judge and jury in Fall 2022.