R. v. Nizigiyimana, 2025 ONSC 999
Delivered orally and in writing – February 13, 2025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Ramadhan Nizigiyimana
Accused
Jayme Lesperance and Shelby Odom, for the Crown
Patricia Brown, for the Accused
HEARD: October 8, 2024
RULING ON MOTION PURSUANT TO S. 672.2(4) OF THE CRIMINAL CODE
carroccia j.:
INTRODUCTION
1The accused, Ramadhan Nizigiyimana, is charged with the first-degree murder of Xaviere Miyamitoro contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c.C-46, as well as other offences arising at the same time.
2Before the trial of this matter was adjourned at the request of the defence, counsel for the accused requested that I make an order for an assessment under s. 672.11(b) of the Code to determine whether the accused was, at the time of the commission of the alleged offences, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) of the Code.
3The Crown did not dispute that there were “reasonable grounds” upon which the court could make such an order, and so the order was made.
4On January 8, 2025, the time period for the assessment to be completed was extended at the request of Dr. Van Impe of the Waypoint Centre for Mental Health, who has been ordered to conduct the assessment, to permit him sufficient time to complete the assessment report. This was on consent of both the Crown and defence.
5At the time that the assessment order was made, Ms. Brown on behalf of the accused, requested that the court make an order that the report not be disclosed to the Crown unless the defence intended to rely on it at trial. The Crown is opposed to the request and relies upon s. 672.2(4) of the Code which requires that a report prepared by order made under s. 672.11 be disclosed to the court and to the Crown.
THE ISSUE
6Should the assessment report be disclosed to the Crown as required by s. 672.2(4) of the Code, or should it be disclosed only to counsel for the accused?
THE GOVERNING LEGAL PRINCIPLES
7Section 672.2 of the Code provides as follows:
Assessment report
672.2 (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.
Assessment report to be filed
(2) An assessment report shall be filed with the court or Review Board that ordered it, within the period fixed by the court or Review Board, as the case may be.
Court to send assessment report to Review Board
(3) The court shall send to the Review Board without delay a copy of any report filed with it pursuant to subsection (2), to assist in determining the appropriate disposition to be made in respect of the accused.
Copies of reports to accused and prosecutor
(4) Subject to subsection 672.51(3), copies of any report filed with a court or Review Board under subsection (2) shall be provided without delay to the prosecutor, the accused and any counsel representing the accused.
8Section 672.51(3) permits the court or Review Board to withhold some or all of the disposition information from an accused where it is satisfied that disclosure of the information would be likely to endanger the life or safety of another person or impair the treatment or recovery of the accused. That section has no application in these circumstances.
9Although the wording of s. 672.2(4) of the Code is mandatory, there is precedent for the order requested by the defence.
10The defence relies on the decision of Lesage A.C.J. in R. v. Bernardo (1994), 50 C.R.R. (2d) 322 (Ont. Gen. Div), in support of their position that the report should be disclosed only to the defence, as well as the decision of Pomerance J. (as she then was) in R. v. Veltman, 2023 ONSC 2735.
11In Veltman, Pomerance J. determined that the report to be prepared pursuant to an assessment to be conducted under s. 672.11 of the Code would not be disclosed to the court or to the Crown. She relied on the “constitutional imperative of a fair trial, s. 24(1) of the Charter and the reasoning of Lesage A.C.J. in Bernardo” (at para. 38).
12Furthermore, in R. v. David, 2002 CanLII 45049 (ON CA), [2002] O.J. No. 3455, the Court of Appeal cited the decision in Bernardo and said the following:
41Moreover, in R. v. Bernardo [Psychiatric Assessment Ruling], [1994] O.J. No. 4382 (Quicklaw) (Gen. Div.) LeSage A.C.J. held that the language of s. 672.2 did not require that he order the assessor to file a report with the court. Although LeSage A.C.J. did not conclusively determine the issue of privilege in making the assessment order, it is clear from his comments that, subject to waiver, he anticipated that privilege would be preserved if the defence of not criminally [responsible] were raised.
ANALYSIS
13The defence suggests that the order is necessary in this case because it gives the defence an opportunity to preserve solicitor-client privilege, and to determine whether or not a defence of not criminally responsible on account of mental disorder (NCR) will be raised without disclosing that information to the Crown until the defence is required to do so.
14In Bernardo, Lesage A.C.J. was concerned that an assessment prepared pursuant to court order under s. 672.11 of the Code and thereby publicly funded, discriminates against an accused who does not have the resources to obtain an assessment privately. When an accused person retains a psychiatrist privately to conduct such an assessment, there is no requirement that the report be disclosed to the Crown, unless it is relied upon in raising a defence.
15The accused is entitled to determine what, if any, defence he will rely upon at trial including whether he was “not criminally responsible”.
16The order I made requires Dr. Van Impe to prepare an assessment report and to provide a copy of the report upon completion to counsel for the defence. It indicates that the report will not be filed with the court or provided to the Crown unless I make an order to do so.
17I agree that the wording of s. 672.2(4) is prima facie mandatory. I also agree that this issue is not one which has been widely considered.
18However, having considered the totality of the circumstances, I am in agreement with the reasoning of Pomerance J. in Veltman. I recognize that this order does not comply with the strict wording of s. 672.2(4) of the Code, but in order to preserve the accused’s right to a fair trial, including an accused’s right to determine what, if any, defence he will rely upon at trial, I will order that the assessment report not be disclosed to the Crown or filed with the court at this time.
19If the accused intends to rely on the report, or otherwise raise an issue regarding his capacity, including that he is not criminally responsible due to mental disorder, then the report must be disclosed to the Crown and filed with the court at least 60 days before the commencement of the trial.
20Section 657.3(3) of the Code permits a court to fix the period of notice of expert testimony (other than the 30-day requirement), and the timing for the disclosure of any expert’s report in order to promote the fair, orderly and efficient presentation of the testimony of witnesses. In this case, the trial date scheduled was cancelled due to the late request by the defence for an assessment to determine whether he was not criminally responsible on account of a mental disorder, so I think it is fair to require that the report be provided to the Crown 60 days in advance of the trial, if the issue is to be raised at trial, to permit the Crown adequate time to prepare.
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Maria V. Carroccia
Justice
Released: Orally and in writing – February 13, 2025
R. v. Nizigiyimana, 2025 ONSC 999
COURT FILE NO.: CR-23-5803
DATE: 20250213
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Ramadhan Nizigiyimana
ruling on motion pursuant to s. 672.2(4) of the criminal code
Carroccia J.
Released: Orally and in writing – February 13, 2025