R v Lam, 2021 ABQB 394

Court of Queen’s Bench of Alberta Citation: R v Lam, 2021 ABQB 394 Date: 20210617 Docket: 190655258S1 Registry: Calgary Between: Alex Hin-Ting Lam Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ Introduction [ 1 ] On July 17, 2019, Alex Lam was convicted of six offences stemming from harassment and unlawful contact with staff at the Southern Alberta Forensic Psychiatry Centre (“SAFPC”).

These included criminal harassment and breach of a court order prohibiting contact with identified staff members. Included in the latter was unauthorized contact with a psychiatrist at the SAFPC, who had on March 4, 2018 conducted a screening level assessment of Mr. Lam’s fitness to stand trial on harassment charges arising from contact with staff members throughout the previous year.

[2] Mr. Lam had a history of involvement with police and the SAFPC and mental health issues stemming from a brain injurysuffered in a motorcycle accident. He had been assessed for fitness to stand trial on at least two prior occasions (and found fit). Hisparents obtained a guardianship and trusteeship order from the Court of Queen’s Bench in May of 2019. A family friend who is acriminal lawyer appeared in docket court in May of 2019 when a trial date was to be set, advising the court of Mr. Lam’s situation, whileconfirming that fitness to stand trial had previously been confirmed and was not an issue.

At that time, the case was set down for trialbeginning on June 12, 2019 with Mr. Lam being urged to retain counsel. The trial was scheduled. Mr. Lam chose to represent himself,although counsel was appointed pursuant to s. 486 of the Criminal Code to conduct cross-examination of the complainants. [3] As might be expected, Mr. Lam did not represent himself in a competent manner. From the outset of the trial, he complainedthat he should be the Plaintiff, not the Accused, because he was the victim of abuse by the government and the SAFPC. The trial judgepatiently explained the trial process, and Mr. Lam’s role in it.

Mr. Lam participated sporadically by interjecting comments andsometimes asking questions of the trial judge. On occasion he would become frustrated with the trial judge’s answers and makeinappropriate interjections. [4] On July 17, 2019, Mr. Lam was convicted on all counts. The sentencing phase of the proceedings ensued. It tookapproximately five months to complete due to the difficulty in completing a pre-sentence report and psychological/psychiatricassessments. Sentencing took place on December 6, 2019. Mr. Lam was sentenced to a one-year prison term to be followed by 3 yearsprobation.

This was a substantially harsher sentence than that advocated by the Crown and the Defense of six months in gaol. With creditfor pre-trial custody, Mr. Lam had approximately four months left to serve. [5] An appeal against both sentence and conviction was filed on January 6, 2020, and heard before me on February 12, 2021. Bythen, Mr. Lam had served his gaol sentence. I was advised by counsel that on release from the Calgary Remand Centre, he was sent tothe Foothills Medical Centre (“FMC”). He remains at the secure

section of the FMC psychiatric unit, having been committed there forpsychiatric care by his parents. While remaining on probation, contact by his probation officer is minimal comprised of monthly phonecalls to the unit. I was advised that there have been no incidents of probation violation. Conviction Appeal [6] The Appellant argues that the trial judge made two errors. First, he failed to comply with s. 672.11 (

a) of the Criminal Codeby failing to refer Mr. Lam for an assessment of fitness to stand trial when there were reasonable grounds to believe that an assessmentwas necessary. Second, he erred by convicting Mr. Lam of breach of a court order prohibiting contact with SAFPC staff. He says that theCrown failed to prove beyond a reasonable doubt he was aware that such an order had been made. [7] I have decided that the trial judge erred in law by not referring Mr. Lam for an assessment of fitness to stand trial. It istherefore unnecessary to decide the second ground of appeal of the conviction.

Nor is it necessary to decide the appeal of sentence. Fitness to Stand Trial – General Principles [8] At common law it has long been recognized that a person who is unfit due to mental illness cannot properly be tried. In 1942,this principle was articulated by Humphreys, J. of the English Court of King’s Bench as follows: the test of whether a person who is on trial is sane, so as to be able to conduct his defence, is a matter which is well known to criminallawyers and is provided for by the criminal law.

It is a cardinal principle of our law that no man can be tried for a crime unless he is in aposition to defend himself, and that includes his being in a mental condition to defend himself, and that matter was present in the mindsof his counsel when this man pleaded not guilty. Indeed, it was open to them at that time if they so desired, indeed it was their duty ifthey so thought, to insist that the prisoner’s ability to plead be put to the jury.

It should be known that the court acts in such a case uponany information conveyed to it from any quarter. (R v Dashwood, [1942] 2 All ER at p 587) [9] In Canada, this common law principle has been enshrined in the Criminal Code.

Discussing the 1927 version of the CriminalCode, in R v Woltucky, (SK CA), 6 WWR (ns) 72 — 15 CR 24 — 103 CCC 4, the Saskatchewan Court of Appeal saidthis: The insanity contemplated by sec. 967 of the Criminal Code ( dealing with fitness to stand trial) is different than that set forth in sec. 19,as sufficient to support the defence of insanity; the test on the issue is whether or not the accused is able to understand the proceedings;to try him if he is not able to understand the proceedings and instruct his counsel would deprive him in all probability of his right to makefull defence.

No one can be rightly tried while insane. [10] Today, the test and procedures for determining fitness to stand trial are incorporated into s. 672.27 of the Criminal Codewhich builds on the definition of the phrase “unfit to stand trial “set out in S. 2: In this Act, ... “unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedingsbefore a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (

a) Understand the nature or object of the proceedings, (

b) Understand the possible consequences of the proceedings, or (

c) Communicate with counsel;

[11] S. 672.11 provides that the court may order an assessment of the mental condition of an Accused if it has reasonable groundsto believe that such evidence is necessary to determine whether the accused is fit to stand trial.

The reasonable grounds standard is wellknown in the criminal law, and requires consideration of the totality of the circumstances and an assessment of facts made on a practical,non-technical and common-sense basis: R v Nguyen, 2008 ABQB 400. [12] On the other hand, the Charter of Rights and Freedoms guarantees an Accused the right to be tried within a reasonable time ofbeing charged with an offence: s.11. Accused persons also have the right to represent themselves at trial, even if that is almost invariablydetrimental to their own interests: R v Ledesma 2020 ABCA 410 at para 36.

Moreover, courts are cognizant of the fact that referral of anAccused for assessment of fitness to stand trial may have harsh personal consequences. If unfit, an Accused may be hospitalizedindefinitely while waiting for fitness to return: R v C (LS) 2003 ABCA 105, at para 12 [13] For all of these reasons, it is sensible that the bar for determining fitness to stand trial is low.

It is essentially the same as thetraditional test for determining capacity to make a voluntary confession: That is, whether the Accused has an operating mind allowinghim to understand the nature or object of the proceedings, the possible consequences of the proceedings and to communicate withcounsel. [14] As stated in R v Whittle: “...

Accordingly, provided the accused possesses this limited capacity, it is not a prerequisite that he or she be capable of exercisinganalytical reasoning in making a choice to accept the advice of counsel or in coming to a decision that best serves her interests. (SCC), [1994] 2 SCR 914 at para 33 [15] While the threshold for fitness to stand trial is low, it cannot be ignored. S.672.12 of the Criminal Code allows the Court todirect an assessment on its own motion, or on application by the Crown or the Accused.

The failure to do so where there are reasonablegrounds to believe that an assessment is necessary will render a guilty verdict unsafe. Did the trial Judge err by not ordering an assessment of fitnessto stand trial during the trial? [16] The issue of fitness to stand trial came to the forefront after the Crown had conducted examination-in-chief of ShayleneWade. Ms. Wade was the subject of the most serious and frightening of the criminal harassment allegations before the Court. Thisincluded hundreds of phone calls, text messages and emails, some of which were sexual in nature. [17] Ms.

Wade’s testimony concluded at the end of the morning session of July 10, 2019. The court adjourned to 1:30 pm. [18] At 2:18 pm, the trial judge returned and was advised that s.486 counsel (Mr. Mohr) had been in discussions with Mr. Lamsince 1:30 pm, and that Mr. Lam was refusing to leave his cell. In the absence of Mr. Lam, a lengthy discussion ensued between the TrialJudge, Mr. Mohr and Crown counsel. It commenced with Mr. Mohr stating: Sir, I realize that I am not able to get any instructions whatsoever from Mr. Lam at this point.

It has been a struggle the entire time thatI’ve dealt with him but at this point, in my view, he has spiralled away and I—I—I’m not able to get anything intelligible from him. I am – and I’m fully aware that he’s had a number of fitness assessments, and I’m fully aware of my friend’s position, but I can’t get anyinstructions from him and I’m concerned at this point he is not fit.

And I realize the concept of fitness is quite fluid and there might havebeen other times where he was – was fit, but at this point he certainly can’t give me instructions, which is an essential part of my role.Notwithstanding that I am appointed by the Court under

section 486.3, I need to be able to get some instructions. Otherwise, I’m actingoutside my call. [19] The trial judge responded by first obtaining confirmation that up to that point in the trial, Mr. Mohr had received sufficientinstruction to cross-examine the Crown’s witnesses. [20] Crown counsel then addressed the issue of fitness to stand trial, arguing that in his view, Mr. Lam had expressed anunwillingness rather than an inability to participate. He suggested that the Court require Mr.

Lam to be brought before it to discuss thesematters, and that if the Court believed that there are reasonable grounds to suspect that fitness is in issue, Mr. Lam should be sent toEdmonton for an assessment. [21] Options were then discussed regarding the possibility that Mr. Lam was simply unwilling to participate, such as trying him inabsentia or holding him in contempt.

The trial judge then returned to the s. 672.11 matter, stating: If I determine that there is some reasonable ground that he is unable to participate, then he should be aware that I would consider sendinghim to NAFPC in Edmonton for a period of 50 to 60 days for an examination, and that would put him in the position where he is back ata psychiatric centre and going through the same process as he has gone through on at least two other occasions where, as I understand it,he has been found fit to stand trial.

That is pretty harsh consequence for him to be looking at another 30 to 60 days while we determinean assessment issue. [22] After a further exchange regarding conducting a trial in absentia, the trial judge made the following direction: All right. Here is what I am going to do. I am going to take a brief adjournment right now and Mr. Mohr, as an amicus curia, I am going

to ask you to serve the Court as a friend of the court and explain to Mr. Lam that the Court is concerned that fitness issues have been raised and, if he in unwilling to participate, that is one thing. If he is unable to participate, that is another. In the latter case, the Court will consider making a further assessment order that could see him further detained, without bail, sent to NAFPC in Edmonton – because of the unique circumstances of this case – for the assessment, which could take a period of 30 days and possibly more. I know that you have had some difficulty communicating with him.

If you want to abbreviate what I have just said and say the judge is thinking of keeping you in custody for another 30 days for a further assessment and sending you to another city to have it done, the you can abbreviate it whatever way you think fit. But I think the characterization given by Mr. Wuttunee, by the Crown, of unwillingness to participate versus inability to participate is at the core of this matter.

And rather than bring him out into the open courtroom requiring the sheriffs to get involved to do that, I would like to at least first attempt to have you have some discussions with him in the back room. Okay? [ 23 ] Mr. Mohr accommodated the trial judge’s request, met with Mr. Lam and the two of them later returned to the court, where the following exchange took place: MR. MOHR: Sir, I had an opportunity to spend some time with Mr. Lam just now. I conveyed to him what we had discussed in the courtroom. I believe he’s prepared to proceed. Is that correct Mr. Lam? THE ACCUSED: (NO AUDIBLE RESPONSE) MR.

MOHR: He’s nodding, yes. I took the opportunity to have a discussion with him about this matter and I have some instructions. I believe I can proceed now. THE COURT: All right. Let us proceed. Thank you. MR. MOHR: You’re welcome. [ 24 ] The trial proceeded, The Crown completed its case later that day. The trial then adjourned to July 17, 2019. Mr. Lam presented no new evidence, but did make closing argument. [ 25 ] Mr. Lam was convicted on all counts. [ 26 ] The Appellant argues that the trial judge erred on July 10, 2019 when he decided to proceed with the trial rather than referring Mr.

Lam for a fitness to stand trial assessment. [ 27 ] Mr. Lam says that counsel’s inability to obtain instructions for cross examination and his strange behaviour to that point in the trial gave rise to reasonable grounds to believe that an assessment of fitness to stand trial was necessary, and the trial judge was required to make that referral to comply with s.672 .11(

a) and ensure trial fairness: R v Gero , 2000 ABCA 227 . [ 28 ] The Crown replies that Gero is distinguishable, because the Court did not simply plough ahead with the trial. To begin with, the Court had been advised that Mr. Lam had been assessed and found fit to stand trial. The Crown also says that when the issue of capacity to instruct counsel arose, the Court first confirmed that to that point Mr. Mohr had been sufficiently instructed; then sought submissions of counsel; and then afforded Mr. Lam on opportunity to continue to participate, and to instruct Mr. Mohr on cross- examination of Ms. Wade.

All of this served to ameliorate the harsh consequences (to Mr. Lam) of referral for another fitness assessment, while allowing the trial to continue. [ 29 ] S 672 .11 (

a) provides as follows: A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine (

a) whether the accused is unfit to stand trial. [ 30 ] In Gero , counsel for the Accused advised the Court at the outset of trial that he had concerns regarding his client’s fitness to stand trial. The Trial Judge responded in a somewhat perfunctory manner. He confirmed that the Accused wanted the trial to proceed and that counsel had been instructed to defend the charges. He then directed the trial to proceed without providing reasons for that determination.

The Accused was convicted, and sentenced for robbery. [ 31 ] The Alberta Court of Appeal found that the verdict was unsafe due to non-compliance with s 672.11 (a). It was insufficient that an accused was willing to proceed with the trial and that counsel considered himself to be properly instructed to defend the charge.

The Court is obliged to exercise close scrutiny whenever a lawyer declares that the client is unable to instruct counsel: While the representation of trial counsel may not have been sufficient to allow the trial judge to conclude that the accused was unfit to stand trial, there was sufficient evidence to require a more thorough inquiry so as to ensure that there would be no miscarriage of justice. In our view, based on the representations of Mr.

Lister and the now acknowledged mental illness of the Appellant, a more thorough inquiry was absolutely essential in this case: R v Gero , 2000 ABCA 227 [ 32 ] The Appellant argues that this case is on all fours with Gero and that the steps taken by the trial judge to address Mr. Lam’s potential unfitness were equally insufficient. [ 33 ] In assessing that proposition, it is helpful to begin with the language of s 672 .11(

a) itself. It does not state that there must be reasonable and probable grounds to believe that an accused is unfit to stand trial. Rather the Court must determine whether there are

reasonable and probable grounds to believe that an assessment of the mental condition of the Accused is necessary to determine whether she is fit to stand trial. Typically, such an assessment would be done, at least initially, through referral to a mental health care professional. [ 34 ] As noted in Gero , one obvious red flag as to the need for such an assessment would be where counsel for the Accused raises a concern regarding his mental fitness. [ 35 ] That happened in this case. Mr. Mohr advised the Court that he had been having difficulty obtaining instructions throughout but Mr.

Lam had now spiralled away. [ 36 ] While no doubt well-intentioned and effective in moving a difficult trial to its conclusion, it is my view that the approach taken in responding to these concerns was wrong in law, in three ways. [ 37 ] First, the Court (at the urging of the Crown) erroneously focussed on whether, in its opinion, Mr. Lam was unfit to stand trial, or simply unwilling to do so. Such a binary choice is not called for under s 672.11 (a). The focus under that provision is fitness to stand trial only, as that phrase is defined in s. 2 of the Criminal Code .

As found in Gero , willingness to proceed with trial is not a surrogate for fitness. [ 38 ] Second, it was in my view unfair to Mr. Lam to dispatch s. 486 counsel to his cell to effectively present a choice between proceeding with the trial and being sent to the NAFPC for a fitness assessment.

If he was unfit to stand trial under any of the three criteria contained in s. 2 , he might have been equally unfit to make such a choice, and in any event that was not the issue before the Court. [ 39 ] Third, the decision to proceed based on s.486 counsel’s confirmation that he considered himself adequately instructed to cross-examine Ms. Wade left unaddressed whether Mr. Lam’s behavior to that point in the trial had raised reasonable and probable grounds to believe that an assessment of his mental condition was necessary to determine other components of the fitness to stand trial definition.

As no reasons were provided for continuing the trial it is not possible to determine what consideration was given to these aspects of fitness to stand trial after Mr. Mohr had advised the Court that Mr. Lam had “spiralled away” earlier that day. [ 40 ] The events of July 10, 2010 must also be considered in the context of other aspects of the trial to that point. From the outset, Mr. Lam’s behavior was bizarre and displayed at minimum confusion in understanding the nature of the proceedings and his role in them.

For example, he repeatedly maintained that he should be the Plaintiff in the trial, not the Accused, because he was the victim of persecution by government. When dissatisfied with an explanation of trial procedure given by the trial judge, he responded by asking for a blindfold and earplugs. When asked whether his parents should be excluded from the court room because they might be called as witnesses in his defence, he asked that they be excluded because they are “criminals”. [ 41 ] The Crown assured the Court that Mr. Lam had been assessed and found fit to stand trial on at least two prior occasions.

However, no details were given as to the first occasion, and the second was a screening level assessment done in March of 2019, the details of which were not placed into evidence because the assessor, Dr. Hashman, was one of the complainants in the case. [ 42 ] When taken together, Mr. Lam’s behavior throughout the trial up to and including the critical event on July 10, 2019 and the inability of Dr. Hashman to opine on his March 2019 screening assessment constituted reasonable grounds to believe that an up to date assessment of Mr.

Lam’s mental condition was required to properly determine his continuing fitness to stand trial. By focussing its analysis on whether Mr. Lam was simply unwilling to proceed, rather than unable to proceed, the Court erred in law. In doing so it deprived itself of information necessary to scrutinize fitness—specifically a new assessment based on information that was not on the record of the trial but which would soon become available during sentencing. I turn to that next to illustrate the impact of the error of law made at trial. [ 43 ] Mr.

Lam was found guilty on all counts on July 17, 2019. [ 44 ] Almost immediately after the trial judge delivered his verdict, Crown counsel provided an update regarding the status of other charges before the Court (for offences alleged to have occurred during the trial); Mr. Lam’s bail status; and communications over the preceding week between the Crown and a forensic psychologist at the Calgary Remand Centre, Mr. Halat, regarding Mr. Lam’s mental condition. [ 45 ] The Crown now disclosed that according to Mr. Halat, Mr.

Lam’s mental health had been in a state of deterioration and his impulse control had been affected. The Crown said that on Mr. Halat’s recommendation, Mr. Lam should be sent to the Alberta Hospital for a capacity assessment and a cognitive assessment. [ 46 ] The cognitive assessment would include an assessment of whether Mr. Lam’s cognitive capacity was in a state of decline. Both tests would, according to the Crown, have been in addition to the “standard psychological/psychiatric” assessment used in sentencing. [ 47 ] The trial judge was not prepared to send Mr.

Lam to the Alberta Hospital at that time, but did order that a psychological/psychiatric report be done at the NAFPC (including a capacity assessment and a cognitive assessment). [ 48 ] The NAFPC attempted to do so, but was unable to complete a report due to the unwillingness of Mr. Lam to participate. This was reported in a letter to the Court dated July 26, 2019 by Dr. Theresa Van Domselaar. In doing so, she added: Lastly, while the writer did not engage in any assessment activities with Mr. Lam, during the consent interview Mr. Lam’s speech was overly tangential, circuitous and pressured.

As such, the writer has concerns that Mr. Lam’s mental health may be compromised for some time. Concerns of this nature could be assessed through the avenues available via a Form 48 assessment order, should the court so decide.

[ 49 ] Rather than seeking referral of Mr. Lam for a fitness and/or NCR assessment, the Crown suggested, and the Court agreed, that Mr. Halat would be requested to undertake a psychological/psychiatric report (including a cognitive assessment) based on his extensive history with Mr. Lam over the preceding five years. [ 50 ] The lawyer who had acted as s.486 counsel at trial was appointed for the purpose of cross-examining Crown witnesses at sentencing, including Mr. Halat. Mr. Lam appeared by CCTV when Mr. Halat testified on September 16, 2019 regarding Mr.

Lam’s current psychological and cognitive state, and a capacity assessment previously undertaken in support of the application for guardianship by Mr. Lam’s parents. He expressed the opinion that Mr. Lam suffers a major deficit in attention, executive functioning and emotional and behavioral (capacity) due to his brain injury. [ 51 ] Mr. Halat also spoke to the deterioration of Mr. Lam’s cognitive function since his capacity was assessed on March 13, 2019 (which was only one week after the screening assessment for fitness to stand trial done by Dr.

Hashman): So, over the months since that diagnosis, my observations and clinical judgment leave me with the opinion that Alex has demonstrated a marked deterioration in his cognitive functioning over this time frame. Specifically, he has demonstrated declines in areas of executive functioning, thought process, problem solving and logical reasoning. With the severity of pervasive and chronic nature of his cognitive declines, he could be classified as having a major neurocognitive disorder with at least moderate levels of cognitive impairment. [ 52 ] It is important to emphasize here that Mr.

Halat was not tasked with opining on Mr. Lam’s fitness to stand trial as that term is used in the Criminal Code , and interpreted in the case law. He may well have opined that at trial and at sentencing Mr. Lam met the test for fitness to stand trial, but there is no way to know that as he was not asked for such an opinion. [ 53 ] After reflecting on Mr. Halat’s evidence, Crown counsel noted that there had been a significant cognitive deterioration over the preceding several months. He asked the Court to refer Mr.

Lam to the Alberta Hospital for an assessment of criminal responsibility (i.e. whether he suffered from a mental disorder that rendered him incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong). The Court accepted the Crown’s submissions, and found that reasonable grounds existed to warrant ordering an assessment of criminal responsibility. [ 54 ] The Crown then suggested that given Dr. Domselaar’s concerns, the Court may also wish as an abundance of caution to order an assessment of fitness to stand trial.

Even though Crown counsel was not concerned at trial that another assessment was required, “... in light of the various evidence and opinions we’ve received, it may be prudent to explore it at this stage.” [ 55 ] Initially, the trial judge was prepared to order an assessment of both fitness to stand trial and criminal responsibility, but he then changed his mind: The grounds exist, and so I will be making such an order.

The order will be both for an assessment with regards to fitness to stand trial and – which has already occurred; actually, in those circumstances, that avenue may already be closed – but certainly with regards to the question of criminal responsibility at the time of the commission of the offences. Mr. Wuttunee, I think there would be a problem – or I think there is a problem with – with fitness to stand trial. That issue I believe has to be addressed at the beginning of the trial. MR. WUTTUNEE: Well, I was satisfied that he was fit to stand trial throughout the proceedings.

THE COURT: And so, I think that that – that that the issue has already been dealt with. MR. WUTTUNEE: I just want to say a few points on that. We did have the assessment on March 2 nd . Although Mr. Mohr had some difficulties getting instructions, he ultimately was able to get instructions. And I will note for the record that Mr. Lam did appear to understand and appreciate what was transpiring during the course of the proceedings. [ 56 ] The NCR assessment was performed and was subject of testimony at a later stage of the sentencing proceeding. The assessors opined that Mr. Lam was criminally responsible.

An updated assessment of fitness to stand trial was not performed. [ 57 ] In my view the trial judge was likely correct in finding that his jurisdiction to order an assessment of fitness to stand trial did not extend through sentencing. S 672.11 (

a) and s.2 of the Criminal Code make it clear that fitness to stand trial for the purposes of the Criminal Code pertains to fitness up to a verdict. A superior court could exercise its inherent jurisdiction to require a fitness assessment at the sentencing phase in order to rectify a potential injustice at trial, but it is questionable whether a provincial court could do so. [ 58 ] For the purpose of deciding this appeal it is not necessary to determine the extent of the provincial court’s jurisdiction at sentencing because an error of law occurred during the trial itself.

Nonetheless, the submissions and evidence received during sentencing do illustrate the risk to trial fairness that is inherent in foregoing the fitness to stand trial assessment process when concerns are raised by counsel during the trial by counsel or the behavior of an Accused –particularly one with a history of mental illness. [ 59 ] Had Crown counsel advised the trial judge prior to a verdict being entered of his discussions with Mr. Halat, and had an updated assessment of fitness to stand trial been ordered, evidence of his deteriorating condition since he was last assessed by Dr.

Hashman would have been before the Court. So too would further evidence of his parents having been granted guardianship of Mr. Lam prior to trial due to his mental incapacity, including incapacity to properly participate in legal proceedings. Given the low threshold for fitness and Mr. Lam’s Charter right to a fair and expeditious trial, he may still have been determined fit to stand trial, but the question of fitness would have been closely scrutinized (as required in Gero ) and the verdict would have been safe. [ 60 ] As matters stand, however, the verdict is unsafe. Mr.

Lam has already served his entire gaol sentence and much of the period of probation ordered by the Provincial Court without incident. In the circumstances, I must and do order a new trial. It is my expectation that the Crown will carefully consider entering a stay of proceedings. That is of course a decision for the Crown to make.

[ 61 ] Given this finding, it is unnecessary to consider the subordinate ground of appeal regarding Mr. Lam’s knowledge of the Provincial Court order prohibiting contact with SAFPC staff, as per count 6 of the Information. It is also unnecessary to consider the appeal of sentence. [ 62 ] The appeal is allowed, the conviction set aside, and a new trial is ordered. Heard on the 30 th day of March, 2021. Dated at the City of Calgary, Alberta this 17 th day of June, 2021. . R.A. Neufeld J.C.Q.B.A. Appearances: Alias Sanders for the Appellant Kevin Masse for the Respondent