Court File and Parties
COURT FILE NO.: CR-21-174 DATE: 2023-05-05 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – Nathaniel Veltman Defendant
Counsel: Kim Johnson and Sarah Shaikh, Counsel for the Public Prosecution Service of Canada Fraser Ball and Jennifer Moser, Counsel for the Attorney General of Ontario Christopher Hicks and Peter Ketcheson, for the Defendant
HEARD: April 24, 27, 2023
Ruling on Application – Section 672.11 Assessment
Pomerance J.
1Nathaniel Veltman (the accused) is to stand trial on four counts of first degree murder and one count of attempted murder. The charges arise out of an event on June 6, 2021, in which a group of pedestrians was struck by a vehicle alleged to have been driven by the accused. Four of the pedestrians were killed and one was injured. It is alleged that the accused deliberately targeted a Muslim family in order to carry out a terrorist attack.
2The trial is scheduled to commence in September 2023 and run for 12 weeks.
3On April 21, 2023, counsel for the accused filed a notice of application seeking an order under s.672.11(b) of the Criminal Code, R.S.C. 1985, c. C-46, for an assessment of the mental condition of the accused, to determine whether at the time of the alleged offences, the accused was suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1). In particular, the defence seeks to have the accused transferred to the Ottawa Carleton Detention Centre (“OCDC”), and then, the Royal Ottawa Hospital, so that he can be assessed by Dr. Julian Gojer.
4This is not a conventional application under s.672.11(b). In the usual course, the court will be presented with grounds to support the requested order for assessment. Section 672.11(b) contemplates that the judge making the order will have reasonable grounds to believe that the assessment “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)”.
5In addition, in the usual course, the assessment yields a report that is shared with the court and the Crown.
6In this case, the court has not been presented with concrete particularized grounds to support the request. In addition, the defence asks that Dr. Gojer not prepare a report at this time, or alternatively, that the report not be shared with the court or the Crown unless and until the defence decides to lead the evidence at trial.
7The Crown opposes the request on two primary bases. First, it is said that the court cannot make an order without being presented with grounds to believe that the accused may be not criminally responsible (NCR) for the alleged crimes before the court. The Crown relies on the strict wording of the statutory provision and argues that the court cannot make the order in the absence of concrete articulable grounds.
8The Crown further opposes the request based on security concerns. The defence seeks to have the accused transferred to Ottawa where he will be placed first in the OCDC, and then in the Forensic Assessment Unit of the Royal Ottawa Hospital. The Crown argues that such transfers are unwise and inconsistent with the accused’s current security classification. The Crown argues that, if the order is made, Dr. Gojer should either attend at the Elgin Middlesex Detention Centre (“EMDC”) in person or conduct the assessment virtually. Alternatively, the Crown proposes that the accused be assessed within the confines of the OCDC, given the relaxed security to be found within the Royal Ottawa Hospital.
9I have carefully considered the respective positions of the parties, as I have the evidence put forward by defence and Crown. I have determined that an assessment order should issue, with some modifications. I will explain why in the reasons that follow.
No Particularized Grounds
10In this case, I have not received any particularized grounds to believe that the accused is not criminally responsible by reason of mental disorder. The nature of the offence, while of extreme gravity, does not standing alone, speak to the presence of a mental disorder. Nor are any grounds derived from the evidence heard on the pre-trial applications. I have received evidence of the accused’s conduct and statements in the immediate aftermath of the incident. I have also reviewed videotape evidence of his conduct and statements at the police detachment. The accused made a point of telling the interviewing detective that he was not going to plead insanity because he wanted the world to know why he did what he did. As he put it during his first statement to Detective Bordeau:
... I'm aware that anything that I tell you can be used to make my ah sentence ah worst. I know that ... I know that if you are trying to you know get the least sentence or get the least whatever, your best bet is to never talk to a cop ... like don't talk to the cops at all but a lawyer but that's not my intention to do ... I'm not planning on pleading insanity. I'm not planning on claiming that I was ah in a psychotic state ... I'm not ... I want ... I want the world to know why I did what I did so I'm gonna ... I'm just gonna tell you
11Defence counsel says that there are grounds for the assessment, but that disclosing those grounds would invade solicitor-client privilege. That is why the defence wishes to withhold the reasons for the request. The defence has not yet determined that it will put the accused’s mental state in issue at the trial. The requested assessment is designed to allow the defence to determine whether the accused’s mental state should be put in issue by invoking a defence under s.16(1) of the Criminal Code.
12Resources permitting, it is always open to an accused person to obtain a private assessment to canvass the merits of an NCR defence. When that happens, the defence does not need to proffer grounds for the assessment; nor is the fact or result of the assessment automatically shared with others. I am advised by Mr. Hicks, counsel for the accused, that he is relying on s.672.11 because the defence cannot fund a private assessment and does not have authorization from Legal Aid Ontario to do so. An order under s.672.11 would allow the defence to investigate the question of an NCR defence, despite funding constraints.
13The accused faces trial on multiple serious charges. He should have every opportunity to explore potential defences. As the trial judge and gatekeeper, I believe that funding issues should not be the determining factor. It is my duty to ensure that the accused has a fair trial and that he be positioned to make full answer and defence. It follows that, in this case, he should be entitled to at least explore the possibility of an NCR defence. This exploration can be facilitated by a court order directing the assessment to take place.
14I agree with the Crown that, on its face, s. 672.11 requires that the court have grounds to support the issuance of an assessment order. However, in the particular circumstances of this case, insisting on such grounds would not serve the interests of justice. Mr. Hicks advises that he relies in part on the nature of the alleged offences, but also other matters that are covered by solicitor-client privilege. I take from this that there have been discussions between counsel and the accused that have prompted the defence to bring this application at this point in time.
15It is, at the very least, premature to require disclosure of privileged communications at this stage. If the defence chooses to introduce the assessment at trial in support of a s. 16(1) defence, the Crown will receive a copy of the report so that it can respond. If the defence chooses not to pursue a s. 16(1) defence, the Crown is not entitled to confidential information bearing on the accused’s mental state. There is no prejudice to the Crown if the information is not disclosed. There is, however, the potential for prejudice to the accused if disclosure is ordered, as the privilege, once lost, can never be recovered.
16Two fair trial interests are at stake here:
- the right of the accused to explore a potential NCR defence through the assessment; and
- the right of the accused to maintain, as confidential, potential defences and communications with counsel unless and until the issue is raised at trial.
The accused should not have to sacrifice one interest in order to achieve the other. They must both be respected as components of a fair trial.
17There are other instances where courts will refrain from making inquiries for fear of invading solicitor-client privilege. For example, where counsel seeks to get off the record, the court will accept, at face value, an assertion that there has been a breakdown in the solicitor client relationship, or that counsel must withdraw for ethical reasons. To look behind that assertion, and require specifics, would be to invade the sanctity of privilege, and potentially impair the right to a fair trial. As the court put it in R. v. Cunningham, 2010 SCC 10:
[26] Concern regarding the protection of solicitor-client privilege is warranted. It need hardly be said that solicitor-client privilege is a fundamental tenet of our legal system. The solicitor-client relationship is integral to the administration of justice; privilege encourages the free and full disclosure by the client required to ensure effective legal representation (see Smith v. Jones, [1999] 1 S.C.R. 455, at para. 45, per Cory J. for the majority, and R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at paras. 31 and 33, per Major J.).
18I also rely upon the decision of Lesage C.J. in R. v. Bernardo, (1994), 50 C.R.R. (2d) 322 (Ont. Gen. Div.) (“Bernardo”), in which s.24(1) of the Charter was used to justify an order that did not meet the strict requirements of s. 672.11. Lesage C.J. stated:
Do I have the authority to grant the accused’s application for an order for psychiatric assessment? Mr. Rosen submitted that since Ms. Homolka was permitted to seek psychiatric assessment of her own choice and without interference by the Crown, while she was under investigation and not yet incarcerated, the accused must also be permitted to seek similar independent psychiatric assessment. Since there is no statutory authority in the Criminal Code, R.S.C. 1985, c. C-46, or anywhere else that expressly provides for what he is requesting, Mr. Rosen asked that I exercise my authority under s. 24(1) of the Canadian Charter of Rights and Freedoms and “alleviate against unfairness that is otherwise created because the accused is detained”. He urged me to rectify this disparate situation, whereby an incarcerated person does not have the same access to the type of assessment that a person who is not incarcerated has, by granting the accused a remedy pursuant to s. 24(1) of the Charter.
[6] Mr. Rosen stressed that in order to properly prepare the accused’s full answer and defence, he must be permitted an opportunity to seek independent psychiatric opinion. Quoting from Lamer J.’s judgment, in Descôteaux v. Mierzwinski (1982), 1 C.R.R. 318 at p. 343, 70 C.C.C. (2d) 385 at p. 413 (S.C.C.), Mr. Rosen stated that the psychiatric assessment he seeks needs to be completed in private by defence-chosen experts because “confidentiality attaches to all communications made within the framework of the solicitor-client relationship”. Citing R. v. Gilbert (1988), 24 O.A.C. 150, 40 C.C.C. (3d) 423 (C.A.), Mr. Rosen acknowledged that the accused’s right to privacy was not absolute and that a balancing was required but pointed out that the Crown would not be prejudiced in any way by the defence request.
19Finally, I am hard pressed to see any principled reason to deny the request for an assessment. If it does not yield relevant evidence, that will be the end of the matter. If it does yield relevant evidence, that evidence will be shared with the Crown. This process does not adversely impact on the case for the prosecution. It has implications for the public purse, but not the public interest. If anything, it is very much in the public interest that the accused be given the opportunity to canvass defences.
20In this regard, I adopt the reasoning set out in R. v. Sealy, 2010 QCCQ 4504:
- In the present matter, fundamental justice dictates that I grant the application for an assessment order. Mr. Sealy is charged with the most serious offence in the Criminal Code. From a cost/benefit analysis, what are the advantages or the disadvantages of granting an order for an assessment on a s. 16 defence? If the Report, once completed, proves negative for a s. 16 defence, all that will be lost is the few hours of a psychiatrist's time to interview Mr. Sealy, gather background information and prepare a written expertise. At the very least, a report, even if negative, will case our collective conscience in the sense that we haven't convicted and meted out punishment to a man who was not responsible for his actions on account of mental illness. If, on the contrary, the psychiatric report proves positive for a s. 16 defence, our collective conscience will once again be put ease as we will have followed the dictates of the law and it's underlining rational -- that is, to exempt from criminal responsibility the individual who, on account of mental illness, cannot understand or appreciate the nature of his actions or the wrongness of such actions. In short, a win/ win situation.
21Therefore, to the extent that s. 672.11 requires grounds, I am prepared to rely on counsel’s assertion, made as an officer of the court, that such grounds exist. If that does not meet the requirements of the provision, then I am prepared to dispense with the need for a showing of grounds in the unique circumstances of this case. To the extent that I am deviating from the strict requirements of s. 672.11, I do so in the interests of ensuring that fulfillment of the accused’s rights under the Canadian Charter of Rights and Freedoms. My jurisdiction lies in either the common law duty to ensure a fair trial, or alternatively, s. 24(1) of the Charter. As was recently stated by Martin J. in R. v. Haevischer, 2023 SCC 11: “In criminal cases, trial fairness is more than a policy goal: it is a constitutional imperative.”
Security Issues
Dr. Gojer
22The second issue is the location of the assessment. When the defence initially applied for the assessment, it was asserted that it could only take place at the Royal Ottawa Hospital. Counsel represented that Dr. Gojer could not attend at the EMDC to do the assessment. Counsel offered submissions to this effect on April 24, 2023. I advised that I required evidence to support the assertion that Dr. Gojer could only do the assessment at the Royal Ottawa Hospital. In response to that request, defence counsel filed an affidavit from an articling student, on information and belief, which contained much the same information. This did not shed any additional light on the issues.
23Fortunately, Dr. Gojer was able to attend court on the afternoon of April 27, 2023, to give viva voce evidence about how and where he proposed to carry out the assessment. I have carefully considered Dr. Gojer’s evidence, as I have the affidavit material filed by Crown counsel.
24Dr. Gojer was very forthcoming in his evidence. Contrary to the affidavit filed by the defence, Dr. Gojer advised that he could, in fact, conduct the assessment of the accused at EMDC, and that he had successfully interviewed the accused at EMDC in the past. Defence counsel did not mention those earlier visits in his preliminary submissions.
25Dr. Gojer testified that, while he could travel to London, Ontario to meet with the accused at EMDC, it would be far more efficient if the accused was transferred to Ottawa. The OCDC is in close proximity to the Royal Ottawa Hospital. Dr. Gojer could attend with staff at OCDC or could transfer the accused to the Hospital to be assessed within the Forensic Assessment Unit. Dr. Gojer was cross-examined by Crown counsel about security measures in place at both locations. Dr. Gojer advised that he was comfortable that any security concerns could be properly addressed with the Royal Ottawa Hospital. Dr. Gojer is a highly experienced forensic psychiatrist, who had assessed and treated many individuals charged with serious crimes. He did not believe that the accused posed a serious security risk, but also ventured the opinion that the Hospital could address such contingencies.
Sergeant Tracy Robbins – EMDC
26The Crown filed three affidavits addressing the security issues, including one from Sergeant Tracy Robbins.
27Tracy Robbins is the Acting Deputy Superintendent of Programs at EMDC. She set out in her affidavit the details of the accused’s security assessment, how he has been housed since his arrival at the Detention Centre, and EMDC’s ability to facilitate psychiatric assessments. According to Sergeant Robbins, the accused is in a Special Care Unit which has 15 seclusion cells and general population units. While in that Unit, the accused did not interact with other inmates, though he did interact with social workers, chaplains, mental health nurses and others who checked on him daily. Sergeant Robbins reported that special accommodations were made to allow the accused to visit with Dr. Gojer on July 4, 2021. Dr. Gojer met with the accused for several hours in a private room.
28The accused was moved in September 2021 to a Special Needs Unit which caters to inmates who need more intense supervision. This was thought to be the most suitable place given the accused’s security risk and needs. He has been fully participating in programs in that Unit since December 2021. There are currently 14 male inmates, and the accused has a cell mate. The accused would not be approved for general population given the safety risks that he poses to others, and that they pose to him.
29Sergeant Robbins pointed out that EMDC regularly facilitates NCR assessments within the facility. There is a private space where the accused can be interviewed by a psychiatrist. Zoom meetings can also be held for multiple hour visits if requested.
30In his testimony, Dr. Gojer acknowledged that he was not aware of the specifics of the accused’s current security classification.
Lori Ann Weatherall Hay – Royal Ottawa Hospital
31The crown filed an affidavit from Lori Ann Weatherall Hay, who works in the Forensic Assessment Unit at the Royal Ottawa Mental Health Centre. Ms. Hay is the Manager of the Forensic Assessment Unit. She advised in her affidavit that the Assessment Unit is a double locked unit, but that the 21 rooms where patients are housed do not have locks on the doors. The patient population is co-ed and multi-cultural with people from various backgrounds, religions, and countries of origin.
32Dr. Gojer testified that Ms. Hay is a nurse who works under his authority. He agreed with her description of the Unit, though he was not concerned about the prospect of the accused being in the hospital, given the security measures that can be implemented. According to Dr. Gojer, he has used the hospital setting to assess any number of individuals who present significant security challenges. As an alternative, the hospital can see individuals from OCDC on an out-patient basis. This would allow Dr. Gojer to have access to staff and resources, while obviating any concerns about overnight stays.
Amber Mahoney – OCDC
33Finally, the Crown filed an affidavit from Amber Mahoney, a Mental Health Nurse employed by OCDC. Ms. Mahoney spoke about the ability of the facility to accommodate psychiatric assessments. According to Ms. Mahoney, Dr. Gojer has security access to the facility where he often performs in-person assessments.
Conclusion on Security Issues
34The evidence would indicate that the assessment could realistically be conducted at any one of the three facilities: Elgin Middlesex Detention Centre, Ottawa Carleton Detention Centre, or the Royal Ottawa Hospital. In submissions, the Crown opposed transfer to Ottawa arguing that there is no reason that the assessment cannot be conducted at EMDC. That is true, but there is correspondingly no reason not to transfer the accused to Ottawa. Proximity to one of Dr. Gojer’s primary workplaces would assist in facilitating an efficient assessment. That is important, given the timing of the trial, and the need for the assessment to be completed with some dispatch. As for whether the assessment will take place at OCDC, or within the hospital setting, I am prepared to leave that decision to the good judgment of Dr. Gojer. He is an experienced forensic psychiatrist and is well aware of the need to protect the safety of the accused, other patients, and individuals who work in the respective institutions.
The Report
35The final aspect of this application concerns the report, if any, produced by Dr. Gojer. The defence requested that Dr. Gojer not prepare a report. It is said that, if the defence decides not to call Dr. Gojer, there is no need for a report. If a report is prepared, s. 672.2 would indicate that the report “shall” be disclosed to the court and the Crown. The defence does not wish to disclose the report unless the accused will be relying upon the report at trial.
36This is an unusual but not unprecedented request. In Bernardo, cited above, Lesage C.J. directed that a report not be prepared in order to ensure privacy and confidentiality of the assessment. He stated:
- If a psychiatric assessment is ordered pursuant to s. 672.11 of the Code, can the accused’s right to privacy and privilege be protected? In addition to Mr. Rosen’s preliminary concerns that a state-controlled hospital such as Penetanguishene would not provide the adequate privacy needed to conduct solicitor-client investigations, Mr. Rosen was also concerned that a s. 672.11 psychiatric assessment would enable the Crown, pursuant to s. 672.2(1), to order a copy of the assessment thus infringing Mr. Bernardo’s solicitor-client privilege. Mr. Rosen stated that the accused’s solicitor-client privilege, which attaches to doctor-patient communications, would be violated if a s. 672.11 psychiatric assessment was ordered and the Crown then sought a copy of that assessment. Mr. Rosen was specifically concerned that a court might read the legislation as obliging the court to provide a copy of the report and thus leave the defence exposed. Mr. Rosen stated that s. 672.11 can potentially deny the accused his right to make full answer and defence in confidence because of the existence of the report. He pointed out that this section discriminates against an accused in custody as opposed to an accused who is out of custody. Mr. Rosen’s primary concern was that should the accused decide to testify, then the Crown will be most eager to have any documentation that would aid in an attack on the accused’s credibility. [emphasis added]
37He ultimately concluded:
- s. 672.2(1) states that (1) An assessment order “may” require the person who makes the assessment to submit in writing an assessment report on the mental condition of the accused. [emphasis my own] (2) An assessment report shall be filed with the court that ordered it, within the period fixed by the court.
The language of subsection (1) is clear. The legislature has chosen the word “may” as opposed to the word “shall”. It is within my discretion to determine whether or not I will require Dr. Bradford “to submit in writing an assessment report on the mental condition of the accused.” Subsection (2) requires, if such a report is submitted, it is to “be filed with the Court ”, Given Mr. Rosen’s request to preserve the solicitor client privilege which flows from the patient doctor communications and given Mr. Houlahan’s comments, I do not require Dr. Bradford to prepare and submit a report to be filed with the Court. In fact, I will go one step further and suggest that Dr. Bradford not prepare a report to be submitted to the Court. Dr. Bradford may report to Mr. Rosen as he sees fit. [emphasis added]
See also R. v. David, [2002] O.J. No. 3455, 61 O.R. (3d) 1 (C.A.) at paras. 40-42
38In this case, I am going to direct Dr. Gojer to prepare a report regarding his assessment, but only because I am concerned about the timing of the pending trial. If the report is prepared during the time frame of the assessment, it will not be necessary to find time in future for preparation of a report, should the defence wish to introduce the evidence at trial. However, I direct that the report shall not be disclosed to the court or the Crown. Rather, it is to be provided only to the defence, who can then assess whether or not to put the accused’s mental state in issue as a defence at trial. Again, to the extent that this order deviates from the strict requirements of s. 672.11, I rely upon the constitutional imperative of a fair trial, s. 24(1) of the Charter and the reasoning of Lesage C.J. in Bernardo.
Conclusion and Order
39For the reasons set out above, I order the following:
IT IS ORDERED that the Superintendent of the Elgin Middlesex Detention Centre (EMDC) in London, Ontario shall deliver the said Nathaniel Veltman, presently an inmate at that facility, to the custodian of the secure unit facility at the Ottawa Carleton Detention Center (OCDC), Ottawa, Ontario as soon as is practicable. Once transferred to the OCDC, Dr. Julian Gojer shall conduct an assessment of the accused in the location of his choice, be it the OCDC, or the Royal Ottawa Hospital, 1145 Carling Avenue, Ottawa, Ontario K1Z 7K4.
IT IS FURTHER ORDERED that the said Nathaniel Veltman remain at the OCDC or the Royal Ottawa Hospital, as the case may be, for such number of continuous days as may be deemed necessary for the purpose of being properly assessed by Dr. Julian Gojer, any other psychiatrist retained by Julian Gojer, and Dr. Gojer’s staff and that he be returned to the Ottawa Carleton Detention Center, Ottawa, Ontario when the assessment is completed.
IT IS FURTHER ORDERED that the time allotted for the assessment of Nathaniel Veltman is for a duration of 60 days to begin on the day he is transferred to OCDC, or Royal Ottawa Hospital, or such earlier time as Dr. Julian Gojer considers satisfactory.
IT IS FURTHER ORDERED that following the completion of the assessment by Dr. Gojer, Nathaniel Veltman shall be forthwith delivered from the Royal Ottawa Hospital to Ottawa Carleton Detention Centre, and then back to Elgin Middlesex Detention Centre to await the commencement of his trial pending any other order of the Court.
IT IS FURTHER ORDERED that Dr. Julian Gojer shall prepare a report pursuant to s. 672.2 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, in respect to the examinations conducted at the OCDC, or the Royal Ottawa Hospital, under this order. Such report is not to be filed with the court or disclosed to the Crown. If it is intended by Nathaniel Veltman to call Dr. Gojer, or his designate(s), a member of his staff or any other mental health professional who has had access to the information from Dr. Gojer in conducting any assessment, as a witness at his trial, the report, if any shall be disclosed to the Crown no less than 30 days prior to such report being tendered in evidence or such abridged time as may be directed by the Court.
Original Signed by “Justice R.M. Pomerance”
Renee M. Pomerance Justice
Released: May 5, 2023