Court File and Parties

Court File No.: CR-2023-08 Date: 2024/03/18 Ontario Superior Court of Justice

Between: His Majesty The King – and – Rodney Nichols, Accused

Counsel: Louise Tansey, for the Crown Laura Metcalfe, for the Accused

Heard: March 15, 2024

Reasons for Decision

Order for Fitness Assessment

HOLOWKA J.

Background

[1] Mr. Nichols is charged with the offence of murder. The offence is alleged to have taken place between April 22 and May 3, 1975.

[2] The defence requested a fitness assessment of Mr. Nichols under the provisions of Part XX.1 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown did not oppose it as there was a sufficient evidentiary basis before the court to support the request. On January 2, 2024, I ordered a 30-day fitness assessment. The order specified that the assessment occurs at the Ontario Shores Centre for Mental Health Sciences in Whitby (“Ontario Shores”). The duration of the assessment was for a period no longer than 30 days.

[3] Mr. Nichols’s assessment commenced on January 18, 2024 when he was admitted to Ontario Shores.

[4] Counsel for Mr. Nichols and for the Crown appeared before me on January 26, 2024 and provided me with an update. I was advised that while a comprehensive assessment had commenced, it was not expected to be completed by the end of 30 days. Mr. Nichols was not before the court on January 26, 2024, so the matter was adjourned to February 13, 2024 to address it in his presence.

[5] The court received a brief psychiatric update authored by Dr. Claire Harrigan, a forensic psychiatrist at Ontario Shores, dated February 9, 2024. The update requested an extension of the assessment order for up to 60 days. The report clearly outlines the work already taking place and the critical need for further testing. It stressed the need for neuropsychological testing and the specialized nature of this additional input.

[6] Counsel for the defence and for the Crown addressed this request before the court on February 13, 2024. Both the Crown and the defence supported a further extension.

[7] I raised the issue of the time limitations for fitness assessments under ss. 672.14 and 672.15 of the Criminal Code. I asked counsel to be prepared to make submissions on the next date on the impact of these sections should any further extension be requested beyond the 60-day aggregate period mentioned in s. 672.15(2) of the Criminal Code.

[8] On February 13, 2024, I ordered the extension of the fitness assessment until March 17, 2024. I considered that the assessment had only commenced on January 18, 2024, and that the defence made the request and was unopposed by the Crown. I was satisfied that further time was necessary to complete it in these particular circumstances.

[9] Dr. Harrigan prepared a further written update dated February 29, 2024 and sent it to the parties and the court. It provides the court with additional information regarding the hospital course and the steps to be undertaken. The doctor requests an extension to the third week of April 2024.

The Order Requested

[10] The defence requests that a new order for a fitness assessment be granted for 30 days until April 14, 2024.

[11] Their request for an extension is based on the following:

a. The request is made by the defence to provide Mr. Nichols with the information necessary to make a full answer and defence.

b. In light of the defence’s request, Part XX.1 should be given a large and liberal interpretation.

c. The psychological and psychiatric issues are complex. A thorough assessment is necessary.

d. The prolonged assessment period is attributable to the situation’s complexity and the highly specialized testing that needs to be done. It is not attributable to a scarcity of hospital resources in general.

e. Mr. Nichols recently fell while in the hospital and received medical care. This will inevitably further slow the assessment process.

[12] Although this is not a joint request for a fitness assessment, the Crown nevertheless agrees with the order being sought. The Crown’s position is that there was and continues to be an evidentiary basis for the order to be granted.

The Issue

[13] Mr. Nichols has been undergoing a fitness assessment since January 18, 2024. Indeed, the first fitness assessment order provided that the assessment could commence as early as January 8, 2024. Either way, a fitness assessment has been underway for 60 days pursuant to court order. A plain reading of ss. 672.14 and 672.15 of the Criminal Code provides a maximum of 60 days for assessments, including any extensions.

[14] I do not doubt that the circumstances militate in favour of the order being granted. The case is serious; the accused’s custody status is not impacted, and the psychiatric issues are complex. Furthermore, the request is sought by the defence and is unopposed.

[15] The question is whether the court has jurisdiction to grant a further extension or a new order.

Analysis

[16] In Ontario v. Phaneuf [^1], the Court of Appeal for Ontario stated that “[a]ssessment orders are time limited”. Sections 672.14 and 672.15 indicate Parliament’s intention that such orders “be completed with dispatch.”

[17] The general rule is that an assessment order may not be in force for more than 30 days in accordance with s. 672.14(1) of the Criminal Code.

[18] When determining whether an accused is fit to stand trial, an assessment order may not be in force for more than five days, excluding holidays and travel time, unless the accused and the prosecutor agree to a longer period not exceeding 30 days: s. 672.14(2).

[19] Nonetheless, if a court or review board is satisfied that compelling circumstances exist, an order may remain in force for 60 days: s. 672.14(3).

[20] Under s. 672.15(1), a court or review board may extend an assessment order for any further period that is required, in its opinion, to complete the assessment of the accused. This may be done on the court or board’s own motion or on application by the accused or prosecutor.

[21] However, no extension may exceed 30 days, and the total period, including the initial and extension orders, may not exceed 60 days: s. 672.15(2).

[22] Few cases address the issue of extending a fitness assessment once the maximum 60-day period has elapsed. Of these few cases, the principle emerges that although a court may not have jurisdiction to grant any extension resulting in a period exceeding 60 days, the court may order a new assessment order.

[23] In R. v. Reimer [^2], the court examined whether it has jurisdiction to grant a second assessment order under s. 672 of the Criminal Code and whether it should grant the order. [^3] Months prior, a first assessment order was granted to the Crown and extended under s. 672.15; however, no beds were available in the center where forensic assessments were performed, and the order expired before implementation.

[24] Greenberg J. was satisfied she had jurisdiction to grant another assessment order, reasoning that a large and liberal interpretation of the provisions allows the court to obtain the evidence necessary to determine the NCR issue. [^4] A strict reading could create a serious injustice and would defeat the objectives of Part XX.1, “which is to ensure that the court has the evidence necessary to assess whether the accused should be found criminally responsible”. It would also defeat the “broader objective of the mental disorder scheme to ensure that those who are not morally responsible not be found criminally liable.” [^5] In considering these objectives, it must also be kept in mind that the availability of hospital beds or medical personnel who conduct assessments falls within the purview of the hospital, and not the court. [^6]

[25] Greenberg J. also compared the use of the word “shall” in ss. 672.14 and 672.15 to jurisprudence that considered comparable wording in s. 752.1 of the Criminal Code. She noted that while the word “shall” makes a provision imperative, it does not make it mandatory. This aligns with other decisions which found that where “reading the legislation as mandatory would lead to an injustice and would not promote the objective of the legislation, courts have held the legislation to be directory.” [^7] Additionally, nothing in the provisions of Part XX.1 restricts the number of orders that can be granted.

[26] Lastly, in granting a 30-day order, Greenberg J. opined it was in the interest of justice that the court has “the broadest possible evidence to assess the accused’s mental state.” She concluded that granting an order would not cause prejudice to the accused nor delay the trial as the attending doctor had testified that a bed was available, and the report could be completed within 30 days. [^8] Further, a new order would not be an abuse of process; the initial delay was not the Crown’s fault, nor did the Crown “sit” on its rights. Rather, the delay was due to a lack of resources in the health care system. [^9]

[27] Similar approaches were taken in A.R. et Responsable du CIUSSS A [^10] and R. v. Tayongtong [^11], although the jurisdictional issue was not explicitly considered in either case.

[28] The reasoning in Reimer is compelling. The policy considerations inform the interpretation of the statute. The use of the word “shall” in the context of ss. 762.14 and 672.15 must be read as directory rather than mandatory.

[29] I conclude that I have the jurisdiction to grant a further assessment order. Although the 60-day period has elapsed, courts nevertheless have the jurisdiction to order an additional assessment pursuant to ss. 672.11, 672.14 and 672.15 of the Criminal Code. The relevant provisions must be given a large and liberal interpretation to achieve the objective of ensuring the court has the evidence necessary to assess the accused’s fitness to stand trial. While limited hospital resources are relevant, the court must shield the accused from unnecessary prejudice and delay. In the case before me, the elapse of the 60 days is attributable to the complexity of the psychiatric/psychological issues under consideration and the highly specialized nature of the steps remaining to permit the completion of the assessment. This is not a case where resourcing issues of the medical issue have caused delays. Finally, the request in this case is being made by the defence and is unopposed by the Crown.

[30] This conclusion, largely based on my adoption of the reasoning in Reimer, is supported by the analysis of the Court of Appeal for Ontario in Phaneuf, where the court examined whether the detention of mentally ill persons awaiting an assessment when there is a lack of medical resources violated ss. 7 and 9 of the Canadian Charter of Rights and Freedoms. Although the analysis related to s. 672.16 of the Criminal Code, the court commented on the reality faced by judges who must make in-custody hospital assessment orders when there are limited resources where the orders cannot be accommodated immediately. The recognition of these limitations and the discretionary decisions that judges must engage in, at paras. 29-31, support the decision to order a second assessment order in the present circumstances:

Judges.… must regularly deal with the difficult problem of accommodating persons in need of in-custody hospital assessments. As the facts of this case demonstrate, those judges are acutely aware that the available resources will not always match the immediate needs of those requiring in-custody hospital assessments….

If a judge is told that there will be some delay in making a bed available, the judge will be required to make an order that contemplates incarceration of the accused in a detention centre before he is transferred to the hospital…. The judge can, where appropriate, make specific orders with respect to the place and circumstances of incarceration. The judge can also monitor the availability of space in the hospital by requiring, as was done in this case, that the accused be brought back within a few days of the initial order for a "bed check". There may also come a point where an order directing transfer to the hospital is an appropriate exercise of the judge's discretion.

The process described above is far from perfect. It is, however, consistent with the provisions of the Criminal Code and responsive to the reality faced by judges who are asked to make in-custody hospital assessment orders when available resources cannot immediately accommodate those orders.

[31] In the present case, Dr. Harrigan’s update of February 29, 2024, indicates that there is a lack of available forensic neuropsychologists to conduct testing to assist with diagnostic clarification and assess for malingering of cognitive deficits. However, a qualified physician is available the week of March 11, 2024, and she anticipates completing the assessment and generating a report by the third week of April.

[32] Although a second assessment order would be an imperfect process for obtaining the required assessment of the accused, it is consistent with the provisions of the Criminal Code and would be responsive to the accused’s needs, considering the limited availability of forensic neuropsychologists. It would allow the court to obtain the evidence required to determine the accused’s fitness in accordance with the statutory scheme’s objectives.

[33] The order requested by defence for a new 30-day fitness assessment is granted. The matter shall return to court on April 8, 2024 at 9 a.m. by Zoom.

Mr. Justice Brian Holowka Released: March 18, 2024

COURT FILE NO.: CR-2023-08 DATE: 2024/03/15 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – RODNEY NICHOLS Accused REASONS FOR JUDGMENT Mr. Justice Brian Holowka Released: March 15, 2024

Citations

[^1]: Ontario v. Phaneuf, 2010 ONCA 901, 104 O.R. (3d) 392. [^2]: R. v. Reimer, 2022 MBKB 183, at paras. 2, 9. [^3]: At para. 4, the court explains that the first order was granted for 30 days by Champagne J. with an extension of 60 days, for a total of 90 days. This timeframe, however, did not comply with s. 672.15 of the Criminal Code. Thus, an appearance was scheduled before Champagne J. to address the issue. [^4]: Reimer, at paras. 24-25. [^5]: Reimer, at para. 22. [^6]: Reimer, at para. 13. [^7]: Reimer, at paras. 15-19. [^8]: Reimer, at para. 26. [^9]: Reimer, at para. 28. [^10]: A.R. et Responsable du CIUSSS A, 2023 QCTAQ 1071. [^11]: R. v. Tayongtong, 2021 ONCA 281, at paras. 9-12, leave to appeal refused, [2021] S.C.C.A. No. 260.