Hosack v. Wiegers, 2012 ABQB 739

Court of Queen ’ s Bench of Alberta Citation: Hosack v. Wiegers, 2012 ABQB 739 Date: 20121129 Docket: 9603 05937 Registry: Edmonton Between: Ernest Hosack Plaintiff - and - G.R.J. Wiegers, D. Burkin, John Doe, the Royal Canadian Mounted Police, Her Majesty the Queen In Right of the Dominion of Canada, the Attorney General In Right of Canada Defendants _______________________________________________________ Memorandum of Decision of W.

Breitkreuz, Master in Chambers _______________________________________________________ [ 1 ] The file shows that there was service of an earlier notice of motion which I am unable to locate in the file, probably filed in 2007 and served sometime in 2009, but I am unable to determine whether that earlier notice of motion was under Rule 244.1 of the old Rules (the drop dead Rule) or under Rule 244 (1), the historical, traditional Rule, relating to delay that was inordinate, inexcusable, and prejudicial to the defendant. [ 2 ] In any event that application appears to have been abandoned and a new application was filed after the new Rules came into force, under Rule 4.33 (the new drop dead Rule) scheduled for November 2, 2011, but adjourned from time to time and finally heard

before me in forenoon chambers on November 29, 2011. I did not render a decision at the time, nor did I reserve, but adjourned it for further application after I was able to review the file, because of the unique circumstances. The unique circumstances surrounding the long delay in these proceedings are two fold: [ 3 ] The first problem undoubtedly causing a great deal of delay relates to the plaintiff ’ s long-standing substance abuse, both alcohol and drugs, since the age of thirteen.

He has been undergoing psychiatric treatment for a number of years and there is psychiatric evidence that some of his psychiatric problems may be attributable to his substance abuse. The plaintiff claims that his psychiatric problems were caused by head injuries which he allegedly sustained in March of 1994 when he was in the custody of the RCMP and being transported in an RCMP vehicle. And according to the statement of claim the plaintiff was ejected from the motor vehicle.

The defence is that he jumped out of the vehicle in an attempt to escape police custody. [ 4 ] The second unusual circumstance causing the delay in this matter is that in May of 2009, while resident in the Vancouver area of British Columbia, the plaintiff was arrested for the murder of his male roommate. Understandably since that arrest he has been in continuous custody, either in prison or in the Forensic Psychiatric Hospital in the greater Vancouver area in B.C. [ 5 ] An extensive psychiatric report was prepared by Dr.

LeeAnne Meldrum, consisting of 24 pages which sets out in detail the plaintiff ’ s psychiatric condition generally, and specifically whether the plaintiff is mentally capable of instructing counsel for the purpose of defending the criminal charge against him. A

summary of her conclusions are set out in paragraphs [110] through [118] inclusive, and are reproduced in this memorandum as follows: [110]

Summary: Mr. Hosack has been assessed with respect to his fitness to stand trial on a charge of Murder. [111] He presents a very complex clinical picture but at this time my preferred diagnosis on Axis I is Delusional Disorder, Mixed Type . Delusional Disorder is a mental disorder characterized by non-bizarre delusions that have been present for at least one month ’ s duration. In Mr. Hosack ’ s case, I would specify Mixed Type as Mr. Hosack has both grandiose and persecutory delusions. While schizophrenia is a diagnostic possibility, Mr.

Hosack has not experienced hallucinations and has not presented as profoundly disorganized in his thinking or behaviour and does not have any of the negative symptoms of schizophrenia such as impaired affect and grossly deteriorated functioning. It is also my diagnostic impression that Mr. Hosack ’ s current delusions are not due to the direct physiological effects of a substance such as cocaine or other illicit drugs as he has been in custody with no evidence that he has been using illicit drugs for a number of years.

This disorder may have been present as early as 2004 and certainly seems present since early 2008 when he has been at Surrey Pretrial Centre. I am not clinically concerned that his treatment with Hepatitis C has markedly worsened his mental state or has provoked a psychotic illness. While in 2004 there was clinical suspicion in the Alberta Hospital that he was malingering psychosis, I am not significantly concerned about this at this time as there is no clear evidence of malingering on psychological testing.

His presentation has been reasonably consistent between interviewers and over time, and he is not clearly trying to advance a defense of being unfit to stand trial or NCR. [112] Other diagnosis on Axis I include Substance Abuse - in remission due to the setting. [113] With respect to an Axis II diagnosis , I do think that there is clear evidence that Mr. Hosack has a longstanding personality disorder marked by cluster A and cluster B traits . Personality disorders are enduring pattern, perceptions and behaviours that deviate markedly from the expectation of the persons ’ culture.

Personality disorders can be manifested in the area of cognition (such as the way of perceiving and interpreting events), the range, intensity, lability and appropriateness of emotional response, impaired interpersonal functioning and impulse control. In Mr. Hosack ’ s case, there is evidence that he does have paranoid personality traits marked by pervasive distrust and suspiciousness of others. He also appears to have clear evidence of antisocial personality traits and disorder as evidenced by his pervasive pattern of disregard for and the violation of the rights of others since age 15. Mr.

Hosack ’ s personality disorder is of clinical significance as with his predisposition to paranoid personality traits and his predisposition to impaired interpersonal functioning and difficulties with appropriate emotional regulation, he is going to have difficulty adaptively and consistently interacting with his lawyer and others. His personality disorder will render him more than usually vulnerable to stress and his vulnerability to stress, particularly at times such as trial or during Courtroom proceedings, may destabilize him further.

At these times, he may appear more overtly psychotic and more overtly disorganized in his thinking and his behaviour. [114] While it is my opinion that Mr. Hosack does have a major mental illness, specifically Delusional Disorder, he does have the cognitive knowledge of the nature and object of the proceedings and the possible consequences. For the most part during his stay at the Forensic Psychiatric Hospital, he also seemed capable of participate (sic) meaningfully in his own defence as his concentration and

intention span were such that he could attend, retain and follow information. Except on rare occasion, he was also not disorganized in his thinking and appeared to able to communicate with Counsel. For the most part he indicated that his beliefs about his abilities and his designs were not directly a factor in his current charge or his defense, although this fluctuated when he was more enraged. [115] It is possible that in the future the combination of Mr. Hosack ’ s mental illness, personality disorder and stress will cause his mental state to fluctuate and it is possible that at times Mr.

Hosack could destabilize to the point where his fitness to stand trial is once again questioned because of his ability to communicate with Counsel and participate in meaningfully (sic) in his own defense seems impaired. [116] A complicating factor in assessing Mr. Hosack ’ s fitness to stand trial is that while he clearly has cognitive capacity to understand the nature and object of the proceedings and the possible consequences, Mr. Hosack is charged with the most serious of criminal offenses. Therefore it is reasonable that the expectation with respect to Mr.

Hosack ’ s fitness to stand trial is that he has a more than the very limited cognitive capacity as put forth in the R.V. Taylor case. [117] However based on his presentation at the Forensic Psychiatric Hospital and based on all the information available to me, it is my opinion that Mr. Hosack has a mental illness but has cognitive capacity to understand the nature and object of the proceedings and the possible consequences and that more often than not, he appeared capable of communicating with Counsel and participating meaningfully in his own defense.

Therefore, it would be my medical opinion that more likely than not, Mr. Hosack could be considered fit to stand trial. [118] Recommendations: 1. Mr. Hosack ’ s assessment is complete and he will be discharged to follow with medical and psychiatric professionals in the correctional centers. He does not need ongoing psychiatric treatment for his mental illness in a hospital. 2. If Mr. Hosack is considered fit to stand trial, the Court could consider making an order as per

Section 672.29 of the Criminal Code . The Court may come to the conclusion that there are reasonable grounds to believe that Mr. Hosack would become Unfit to Stand Trial if released from hospital. Mr. Hosack then could be ordered detained in hospital until the completion of the trial to prevent deterioration of his condition to the state of unfitness. 3. If it is concluded that Mr. Hosack is Unfit to Stand Trial, the Court could consider making an order for a treatment order as per

Section 672.58 of the Criminal Code . There is a possibility, if it is concluded that Mr. Hosack is Unfit to Stand Trial, treatment with medication may likely make him fit to stand trial within a period not exceeding 60 days. The risk of harm to Mr. Hosack from the treatment (which would be medication) is not disproportionate to the benefit anticipated to be derived by treatment. The medication would also be the least restrictive and least intrusive treatment that in these circumstances could be delivered. However, given Mr.

Hosack ’ s longstanding delusion system, it is not certain that treatment would likely render him fit to stand trial within a period of 60 days. 4. Lastly, if Mr.

Hosack is considered Unfit to Stand Trial and considered not appropriate for a treatment order, his disposition could be deferred to the Review Board and he could be readmitted to the Forensic Psychiatric Hospital pending his Review Board hearing which would occur within 45 days of the finding of the Court. [ 6 ] It is submitted on behalf of the defendants that the last significant step in these proceedings is the pre-trail conference which took place before Mr. Justice Murray on October 10, 2006.

I am not sure it would be fruitful to explore whether the flurry of activity that occurred in this action advanced the proceedings or not, because this would require a minute examination of the contents of the affidavits filed by both parties, which consists largely of an accusation of the delay tactics employed by the opposite party. [ 7 ] Rule 4.33(2) provides as follows:

(2) If the Court refuses an application to dismiss an action for delay, the Court may still make whatever procedural order it considers appropriate.

[ 8 ] It is apparent to me that this sub-rule is intended to moderate the harsh effect of 4.33(1). [ 9 ] I think for the purposes of this application, given the psychiatric condition of the plaintiff, and given the fact that even though he may be mentally fit to instruct counsel at this time, he is certainly not physically able to do so as long as he is imprisoned in British Columbia. [ 10 ] It is plain from the correspondence exchanged between plaintiff ’ s counsel and the plaintiff ’ s defence counsel in British Columbia, one Mr.

Coleman, Q.C., that the plaintiff ’ s intention and ability to proceed with this matter depends almost entirely upon his being found not guilty of the murder charge. I think in those circumstances it would be just and appropriate to grant an order that would achieve that. This is especially so in view of the fact that the delay in completing the murder trial is not the fault of the plaintiff. [ 11 ] Accordingly the order will be that if the plaintiff is acquitted of the murder charge he will have 45 days after the expiry of the appeal period, to take the next significant step in these proceedings.

If he is convicted of the murder charge, this action will be dismissed upon the expiry of the appeal period. [ 12 ] The plaintiff is completely without means regarding finances. Therefore any direction regarding payment of costs at this stage would be meaningless as against the plaintiff. If his action does eventually succeed, and funds become available to the plaintiff, he ought to bear the costs of these proceedings. I will direct that the matter can be addressed if and when that situation arises. Dated at the City of Edmonton, Alberta this 29 th day of November, 2012. W. Breitkreuz M.C.C.Q.B.A.

Appearances: Gordon Honey Barrister and Solicitor for the Plaintiff David Stam Department of Justice Canada for the Defendants