R. v. Fairgrieve, 2023 BCSC 1214

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Fairgrieve, 2023 BCSC 1214 Date: 20230620 Docket: 53212-2 Registry: Vernon Rex v. Richard William Fairgrieve Corrected Judgment: The text of the oral reasons was corrected commencing at paragraph 83 on July 18, 2023 Ban on Publication: Inherent Jurisdiction Before: The Honourable Madam Justice Beames Oral Reasons for Judgment Re: Fitness In Chambers Counsel for the Crown: A. Buchanan Counsel for the Accused: G.A.P. Verdurmen Place and Date of Trial/Hearing: June 6–8, 2023 Vernon, B.C. Place and Date of Judgment: Vernon, B.C.

June 20, 2023 [ 1 ] THE COURT: Richard Fairgrieve is before the Court on a hearing to determine his fitness to stand trial. I will set out an overview of the background to this matter. [ 2 ] The charge against him is the second degree murder of Willy Bartz in Vernon, British Columbia, on July 19, 2017. [ 3 ] The first attendance in this Court on the murder charge was on November 19, 2018, which was an appearance to fix a date for a bail hearing. At that time and for all attendances since that time, Mr. Fairgrieve has been represented by Mr. Glenn Verdurmen. As I understand it, Mr. Verdurmen was also Mr.

Fairgrieve’s counsel as the matter was proceeding in Provincial Court before that date. [ 4 ] Mr. Fairgrieve was detained in custody after his arrest. On April 12, 2019, this Court heard a bail application which was denied. [ 5 ] On July 31, 2019, a direct indictment was filed in this Court. [ 6 ] In September of 2019, while in custody, Mr. Fairgrieve suffered a stroke or strokes. That stroke or strokes were followed by a number of seizures, apparently commencing in November 2019. [ 7 ] On January 28, 2020, this Court conducted a fitness hearing.

It appears that the fitness hearing was brief, supported by a letter from a Dr. Gupta and uncontested. Justice Gropper made a finding that Mr. Fairgrieve was unfit to stand trial. [ 8 ] The Review Board, in accordance with the provisions of the Criminal Code , held an initial fitness hearing on March 11, 2020. Mr. Fairgrieve was found to be unfit to stand trial and was ordered detained in the Forensic Psychiatric Hospital for 12 months. That order was extended on two occasions. [ 9 ] The Board assessed Mr. Fairgrieve again on November 29, 2021, and found that Mr.

Fairgrieve remained unfit to stand trial. [ 10 ] On November 28, 2022, the Review Board held a mandatory hearing to determine Mr. Fairgrieve’s fitness to stand trial. After hearing from Mr. Fairgrieve as well as a psychiatrist, an occupational therapist, and a social worker, and receiving reports and other information, the Review Board was of the opinion that Mr. Fairgrieve was fit to stand trial and ordered that he be sent back to court in accordance with s. 672.63 of the Criminal Code . [ 11 ] I will note here that at the Review Board hearing, Mr. Fairgrieve was represented by counsel other than Mr.

Verdurmen and apparently both Mr. Fairgrieve and his counsel took the position that Mr. Fairgrieve was fit to stand trial. Indeed, in the Review Board’s written reasons following the November 28, 2022 hearing, it was noted that, “All parties submitted that Mr. Fairgrieve is fit to stand trial.”

[ 12 ] It is with that background that the issue of fitness to stand trial returned to this court. On the hearing before me, Crown takes the position that Mr. Fairgrieve is fit to stand trial. Defence counsel’s position is that Mr. Fairgrieve is incapable of having effective communication with counsel and incapable of having meaningful participation in the trial, and that accordingly he remains unfit to stand trial. [ 13 ] On the hearing, I heard the evidence of Mr. Fairgrieve, Dr. Gharakhanian, and Mr. Warford. I will review the evidence before returning to the law. [ 14 ] I intend to set out the evidence of Mr.

Fairgrieve in some detail. One would need to listen to the audio of his evidence to get a full appreciation of it. His evidence was replete with lengthy pauses, non-verbal responses or no responses at all; statements that he did not understand the question; and requests to repeat the question or to move to another question. He speaks very slowly. [ 15 ] Mr. Fairgrieve, based on my notes and the clerk’s log notes, testified for approximately one hour before the first break was taken on day one of the fitness hearing, and after about a 30-minute break testified for approximately 30 more minutes.

After the lunch recess of an hour-and-a-half, he testified for approximately 30 minutes before it was apparent that he was unable to continue. [ 16 ] On day two he testified for approximately 35 minutes. As had been noted by the Review Board in its reasons, Mr. Fairgrieve was only able to respond to questions that were asked very slowly and in very simple terms. Counsel attempted to accommodate his challenges in the questions they asked and the manner of asking them.

His responses were, as I have indicated, frequently non-verbal, including pointing, nodding or shaking his head, or gesturing with a thumbs-up. [ 17 ] When asked by his own counsel whether he recognized him, Mr. Fairgrieve identified his counsel as “Mr. Glenn”. When asked who is “the lady sitting in front”, Mr. Fairgrieve identified me as the judge. When asked what a judge does, he responded, “She’s the boss”. When asked if there was anything else, he paused for a lengthy period of time, taking deep breaths, and then eventually asked what the question was.

He was asked if he could say anything more about what the judge does, and after a long, long pause, according to my notes, he looked at me, said sorry, and then said, “You’re the boss and your decisions are always right.” [ 18 ] When asked who the lady sitting to his left was, which I will indicate was the Crown, Mr. Fairgrieve said he had never met her. When asked what her job was, after an even lengthier pause, Mr. Fairgrieve, after several verbal stumbles, said, “The Crown. Sorry, sorry, Ms.

Crown.” When asked what the Crown does, he responded that he did not understand, and then when asked again, said he did not know. He was able to communicate in simple words that he was unable to understand what was happening in court before he got into the witness box because everyone spoke too fast and he could not understand. [ 19 ] When asked about his memory, Mr. Fairgrieve said, “It’s getting better but it’s mixed up.” When asked what year it is, he hmm- ed, used his fingers, pointed, and eventually said, “June.” When asked the date, he said he was not sure.

When asked the year, after some pauses and verbal stumbles, he eventually said “2003”. He knew that he lives at “the hospital” but was unable, after an extended pause, to name the city. He was able to describe the work he does at the hospital as cleaning tables and watering plants. [ 20 ] Mr. Fairgrieve agreed it is easier for him to find small words and easy words that he uses every day. He would often forget a question or, after a lengthy pause, say he did not understand a question. When asked if it was frustrating for him when he could not understand or find a word, he nodded.

When asked why, he said, “I want -- I want to get better.” When asked why he was in a hospital, he said, “To get better.” After being asked why he was in court, which question had to be repeated three times by my count, his lawyer asked instead if he knew he was charged with a criminal offence. He replied, “I’m -- I’m -- I’m go -- I’m good.” [ 21 ] He was unable to say for how long he had known his lawyer but identified him again as Mr. Glenn, and described him as the boss. When Mr. Verdurmen said he was not the boss, he was a lawyer, Mr. Fairgrieve smiled, put his thumb up and said, “Yeah, lawyer”.

When he was asked what his lawyer does, he replied, “To help -- to help me -- not guilty thing, yeah.” He was unable to say how his counsel will help him. He recalled that his lawyer visited him, “Just the other day,” and then grinned and repeated twice that the nurses liked his lawyer that day. He was asked what evidence is and, after repeating the word “evidence” several times, said that is, “When they are trying to find things, looking for things,” and then repeated the word “evidence” a couple more times. [ 22 ] Mr.

Fairgrieve was able to identify his occupational therapist, who was attending by Teams, calling him Mr. Justin, and brightened up when he saw him, saying, “I go to OT.” [ 23 ] He also identified Dr. Gharakhanian, who was also on the screen, saying he was “Mr. G.,” although he subsequently said “Dr. G.” When asked what Mr. G. does, Mr. Fairgrieve’s response was, “He’s always been nice.” When asked what Mr. G. does for him, Mr. Fairgrieve paused for a lengthy time and then said, “He’s a -- he’s a -- he’s a boss. Oh, yeah.” After being asked what kind of boss, and then being asked how he helps, Mr.

Fairgrieve was finally able to say, “He’s a doc -- a doc -- doctor, a big doctor.” He said there are different doctors and, “They are always right”. [ 24 ] After the morning adjournment, Mr. Fairgrieve was asked what happened to cause his troubles with words and his memory, and he was able, after searching for the words, to say “stroke” and “seizures”. He testified he does not know where he was when he had a stroke, and he does not know how many strokes he has had. He was asked why he has back problems, which I will note were obvious as he walked, sat, and stood in court, and he was not able to respond.

He eventually said, “Too mixed up.” He said he could talk to his parents and sister - to help him - when he asks them about accidents. He said, “They told me I had a lot of different things on my body.” When asked who told him, he said, “Accidents.” When asked if he remembered the accidents, he responded, “My memory is,” and then paused, and then said, “I wish I could.” When asked if he could remember things from five years ago, he said he cannot. When asked if his memory comes from things people tell him, he responded “Yes.

Mom, Dad, children.” [ 25 ] He struggled to explain what a witness is or does, eventually saying they are, “In court, important people in court, and if they see an accident they can see.” He said a witness is, “lots of jobs”, “in court or police can talk to witnesses”. [ 26 ] He was able to name his children and say their ages but he said, “I got to keep talking to them -- otherwise I forget about them.” Asked again about his memory, he said things in the past are mixed up and he does not know if his memory is true or not.

[ 27 ] He was able to say he takes medications, and when offered by his lawyer different numbers, he responded, “about that”, when his lawyer asked if it was more than ten. When asked what the medications are for, he says they are so he does not have more strokes, and then added “For pains”. [ 28 ] Mr. Fairgrieve said that his occupational therapist helps him to speak and to write and to use a tennis ball. He testified that he uses his left hand to write but he said, after looking at both of his hands, that he cannot remember which hand he used before his stroke. [ 29 ] After the lunch adjournment, Mr.

Fairgrieve said he was tired, and that was consistent with his appearance. He was asked by his lawyer three times what an oath is. When he was unable to answer, his lawyer asked him if he understood, “To tell the truth,” and he nodded and said, “Yes.” When asked what it is called if you do not tell the truth, he was unable to answer. When his lawyer reframed the question to ask if he knew what a lie is, he responded, “Yeah, yeah, bad. Bad word”. [ 30 ] On cross-examination the first day, Mr. Fairgrieve initially struggled to say what he was charged with, but eventually said second degree murder.

When Crown repeated his answer to him, he said, “I never hurt nobody.” When asked his plea, if he did not hurt anyone, he said, “Not -- not -- not guilty.” Crown then asked if he wanted to have his trial, and he repeated he “didn’t hurt nobody”. When Crown asked if he wanted to have his trial so he could tell the court he didn’t hurt nobody, he paused, then nodded, and held his thumb up. He was unable to respond to Crown’s question, which was repeated for him, about whether “Mr. Glenn” could help him at trial, but eventually, to a reframed question of what Mr. Glenn would do if there was a trial, Mr.

Fairgrieve said, “Mr. Glenn would help me.” [ 31 ] Crown then posed a hypothetical about her stealing sunglasses, and he exclaimed, “You stole them!” She then asked if the police arrested Mr. Glenn, would he be guilty or not guilty. His response was, “You got them.” When Crown led him by saying, “Right, I’m guilty, right?”, he nodded. She then asked if the police blamed Mr. Glenn, would he be guilty? After a pause that lasted minutes, Mr. Fairgrieve did not respond. Mr. Fairgrieve was able to correct Crown when she held up a yellow book and said it was green.

When she asked whether if she said it was green that would be true or a lie, he said it would be a lie. When she then asked him what he would do if he had a trial and someone said a lie, he asked to have the question repeated. After it was repeated he paused and then said, “I don’t lie.” He was not able to answer, when the question was reworded. When asked if he could tell Mr. Glenn if someone was lying, he said, “Oh yeah,” and put his thumb up. Crown then asked him who decides whether he is guilty or not guilty.

He closed his eyes, repeated part of the question softly to himself, and then said, “Oh, oh,” looked and pointed at me and said, “Judge.” When asked by the Crown if the Crown would be or she would be against him or helping him, he said he did not understand. [ 32 ] Based on Mr. Fairgrieve’s appearance and presentation, I adjourned the afternoon session after just half an hour of cross- examination. [ 33 ] The next morning he said he was feeling good. When asked if he felt ready to go to trial, he paused, he moved his fingers around in sort of a fidgeting manner, and did not answer.

When asked that question again, after two other questions about his improvement and his occupational therapist, he said, “No,” followed by a long pause, and then said, “Mixed up.” He said he did not know if he could tell Mr. Glenn his side of what happened. When asked why, he said, “Relearn, learning.” When asked about witnesses, he took deep breaths and long pauses and then said, “Could I have another question?” When asked what would happen if a witness at the trial said something that was not correct, he responded, “That is wrong.” When Crown reframed the question, he asked Crown if she could slow down.

When the question was repeated, he said, “Say no, that they’re wrong.” Then he said, when he was asked, that he would say that to me. He was asked if he could tell Mr. Glenn, and he put his thumb up, took a long pause, and then said he did not know. He responded “Yes” when he was asked if he trusted Mr. Glenn. When asked again if he could tell Mr. Glenn his side of what happened, he said, “It’s all mixed up,” and started talking about talking to his family.

When he was asked if things about Willy Bartz, who I note parenthetically is the deceased, were mixed up, he responded, “I don’t know p-person.” When he was asked to repeat what he said, he said he did not know him, and said, “I know now but the past all -- all,” and then shook his head and made hand gestures. After Crown asked twice the question of whether Mr. Fairgrieve understood Mr. Glenn when Mr. Glenn talked to him, he put his thumb up, nodded, paused, and then said, “He’s a good man, yeah.” [ 34 ] Crown asked Mr. Fairgrieve what would happen if the judge found him not guilty.

After another long pause he said, “The judge is always right, yeah.” When asked where he would go if he was found not guilty, he paused for long enough that Crown asked, “Would you go home?” He said he likes home, and then said, “I like -- I like -- I like where I live,” and responded “Yes,” when Crown asked if he meant the hospital. When asked what would happen if the judge finds him guilty, he said, “That’s bad.” When asked where he would go, he eventually said, “The jail.” [ 35 ] That was the extent of Mr. Fairgrieve’s evidence.

In general, and to partially repeat what I said earlier, despite both counsel speaking very slowly and making efforts to ask short questions with simple words, he took many long pauses, was unable to answer several questions, and provided very simple answers. [ 36 ] I then heard from Dr. Gharakhanian, a psychiatrist at the Forensic Psychiatric Hospital. Dr. Gharakhanian wrote two reports which were marked as exhibits at trial. The first was prepared in advance of the Review Board hearing on November 28, 2022. In that report, Dr. Gharakhanian opined that Mr.

Fairgrieve does not suffer from a functional psychotic or mood disorder. He wrote that the principal diagnosis is neurocognitive disorder due to cerebral vascular disease and traumatic brain injury, which has cause aphasia, that is, an impairment of Mr. Fairgrieve’s ability to produce and comprehend language. In his conclusion to that first report he opined: . . . While with treatment, there has been some improvement, yet he remains disabled. . . . While Mr.

Fairgrieve understands that he has a lawyer and understands his lawyer’s role as suggested by his desire to speak to him before answering questions or consenting to investigations or assessments, it is not clear if his counsel would be able to establish effective communication with him and if he would be able to instruct his counsel and recount to his counsel the necessary facts relating to the offence in such a way that his counsel could then properly prepare a defence. Additionally, it is not clear if Mr.

Fairgrieve understands the role of the other authorities participating in the criminal trial process, the pleas available to him, and the possible consequences of the proceedings. Therefore, it is more likely than not that Mr. Fairgrieve remains unfit to stand trial . . . [ 37 ] At the Review Board hearing, Dr. Gharakhanian observed Mr. Fairgrieve as he gave his evidence. He said that observing

Mr. Fairgrieve changed his opinion and he opined to the Review Board in his oral testimony that he believed Mr. Fairgrieve understood the charges, the roles of the participants, the pleas available, and the possible consequences. He also testified that he believed, based on Mr. Fairgrieve’s evidence before the Review Board, that Mr. Fairgrieve should be able to establish effective communication with his lawyer. Consequently, he opined that Mr. Fairgrieve, as of the date of the Review Board hearing, was fit to stand trial. He said he believed Mr.

Fairgrieve was able to establish effective communication notwithstanding that he has an impairment in his ability to produce and comprehend language and is still aphasic. [ 38 ] When asked what accommodations would be necessary to meet the threshold of him being able to communicate with counsel, he testified that the Court would have to be well aware of Mr. Fairgrieve’s history, that he cannot function in a noisy environment, that he has impairment in several of his cognitive domains, including complex attention, and that the courtroom should be free of any distractions and quiet as much as possible.

He added that the communications should be very basic, at a slow pace, because of Mr. Fairgrieve’s impaired cognitive functioning, specifically his processing speed, which is quite slow. With respect to Mr. Fairgrieve’s memory and cognitive functioning, he was of the view that a neuropsychological assessment should be conducted. [ 39 ] I will pause to note that the audio of the Review Board hearing as well as the transcript were marked as exhibits on the hearing before me. Reading the transcript without listening to the audio presents a very different impression of Mr. Fairgrieve’s abilities.

I suspect the same would be true if a transcript of the proceeding before me is produced. Just by way of example from the Review Board hearing, he was first asked questions by his Review Board counsel. The first ten plus minutes are transcribed in a total of 36 lines of transcript, which included an interjection by the chair of the Review Board which was eight lines of transcript in length. Twenty-one more minutes of Mr. Fairgrieve being examined and giving evidence produced two pages of transcript. [ 40 ] Returning to the hearing before me, on May 29, 2023 Dr. Gharakhanian assessed Mr.

Fairgrieve again and produced his second report. He found that by asking Mr. Fairgrieve very brief questions and being patient for answers, Mr. Fairgrieve was able to tell him what his charge was, what pleas were available, what the consequences were, and the roles of the judge and his own lawyer. Dr. Gharakhanian said that Mr. Fairgrieve knew there was another lawyer in court but did not seem to know the role of Crown. [ 41 ] Based on the fact that Mr. Fairgrieve was able to have effective communication with him and with the treatment team, Dr.

Gharakhanian stated in his report that he was of the opinion that Mr. Fairgrieve would be able to have effective communication with his counsel. [ 42 ] When he testified at the hearing, Dr. Gharakhanian initially said that whether Mr. Fairgrieve would be able to have effective communication with his counsel would be for his counsel to decide. In cross-examination he said he could see no reason why Mr. Fairgrieve could not have basic communication with his counsel. Dr. Gharakhanian testified that as long as he speaks slowly, one word at a time, Mr. Fairgrieve understands and he responds truthfully to him. Dr.

Gharakhanian watched and listened to Mr. Fairgrieve give his evidence on the hearing before me. He described Mr. Fairgrieve as being more at his best in the morning but getting tired in the afternoon. [ 43 ] With respect to prognosis, Dr. Gharakhanian described Mr. Fairgrieve as having, according to my notes, vascular dementia with multiple underlying pathologies, including strokes and traumatic brain injuries. He testified that Mr. Fairgrieve has been improving but for how long he will continue to improve is unknown. In the long term, Dr.

Gharakhanian said there will likely be deterioration although “long-term” was not defined. He testified that with time, Mr. Fairgrieve’s cognitive impairment due to his traumatic brain injury will likely get worse and said that Mr. Fairgrieve is at risk of further strokes. [ 44 ] Dr. Gharakhanian expressed the opinion that Mr. Fairgrieve has memory deficits, the full extent of which is questionable. In his opinion, Mr. Fairgrieve’s memory deficits will not improve. He also testified that Mr.

Fairgrieve’s ability to answer questions ebbs and flows, and that if he is unable to focus or sustain attention, or if he is under stress or tension, he may not be able to answer questions. Dr. Gharakhanian said that Mr. Fairgrieve has major brain injuries and that it is necessary to lower expectations for what amounts to “effective communication” when dealing with someone with a traumatic brain injury or stroke. Any novel non-concrete concepts will be difficult for him, according to Dr. Gharakhanian, as Mr. Fairgrieve’s executive functioning is also impaired. Dr. Gharakhanian opined that Mr.

Fairgrieve does significantly better with things he deals with every day. [ 45 ] Returning to memory, Dr. Gharakhanian spoke about Mr. Fairgrieve having deficits in his recent, which is also referred to as delayed, memory. He testified that the ability to recall at 11:15 in the morning, a normal time for the court morning adjournment, something that happened at 10:00 a.m., a normal time when court commenced, requires recent memory, an area in which Mr. Fairgrieve has deficits. [ 46 ] Finally, Dr. Gharakhanian testified that it would be difficult for Mr.

Fairgrieve to communicate with anyone in a distracted setting, which he agreed could be a courtroom with sheriffs, potentially jury members, members of the public, and witnesses coming and going. [ 47 ] The final witness was Mr. Warford, Mr. Fairgrieve’s occupational therapist. Mr. Warford has been working with Mr. Fairgrieve for approximately three years and has had 353 therapy sessions or interactions with him. Mr. Fairgrieve has had a modest improvement in the context of a clinical setting, according to Mr. Warford, in his ability to express himself verbally over that three-year period. Mr.

Fairgrieve has a very simplistic basic ability to communicate verbally, which is enhanced with repetition and significant rehearsal of words and phrases. His gains or progress over the last six to eight months have stabilized. His ability to communicate verbally can fluctuate, depending on his level of pain, whether the day has been busy, and other sorts of factors which can lead to his speech output being more delayed than usual. His best performance is usually when he is fresh, generally first thing in the day. [ 48 ] Mr. Warford watched and listened to Mr. Fairgrieve give evidence. He considered Mr.

Fairgrieve’s presentation in the morning to be similar to his baseline. When asked about Mr. Fairgrieve’s ability to communicate in court, he noted that despite everyone’s best efforts to ask shorter questions with shorter words at a slower pace in order to accommodate Mr. Fairgrieve, he thought the questions were still complex. He testified that he is uncertain whether it could reasonably be expected that Mr. Fairgrieve could communicate any better than was seen on the first morning of his testimony. Mr. Fairgrieve continues, according to Mr. Warford, to have significant word-

finding difficulties, even when he is initiating a request in order to have his needs or wants met, such as asking for Tylenol for pain, as he did in court, and even when he is using really simplified language and a few basic words. [ 49 ] Mr. Warford administered tests in November 2022 prior to writing the report that was before the Review Board, and then he administered tests again in late May prior to the fitness hearing before me. Those tests were to assess Mr. Fairgrieve’s aphasia. The results on both sets of tests were similar, according to Mr. Warford.

The first test, and I will refer to the May testing, is called Confrontation Naming. Mr. Fairgrieve was shown, one by one, 25 pictures of common objects he ordinarily sees, such as household objects, and asked to name what he saw. The pictures might be of an object like a pen. In 35 minutes, Mr. Fairgrieve was able to correctly name 17 of them. He required a five-minute break midway through. The time required by Mr. Fairgrieve to name what he saw ranged between five seconds and four minutes. One of the objects depicted was tape. Mr.

Fairgrieve had difficulty naming it and, when presented with subsequent pictures of items such as a marker, a paperclip and a rubber band he perseverated and repeatedly said the word “tape”. He would then say, “No, no. Think.”, and then would be unable to find the correct word for the object he was shown. [ 50 ] In the auditory comprehension test, Mr. Fairgrieve was given auditory stimuli of a word, all of which were nouns, and he was asked to select the printed word which matched that which he had heard pronounced verbally. He was able to use a hint button, which would produce a photograph of the item.

He got 14 of 25 right on his first attempt, and the task took him 20 minutes. [ 51 ] Mr. Fairgrieve was then given the reading comprehension test in which he was given a sentence with a blank. For example, “the dull knives need to be ____”, and asked to select the correct word from a list of three, as I understand it. He was given 23 questions and it took him 40 minutes to complete them. He scored 8 of 23 on his first attempt but if he was given an auditory hint his score improved to 20 of 23, although Mr. Warford noted that if Mr.

Fairgrieve got the first word wrong, then following the auditory hint he had a 50/50 chance of getting the word right as there were only two words left to choose from. [ 52 ] Mr. Warford testified that they have tried to encourage Mr. Fairgrieve to read but it is very, very difficult for him. The team has effectively abandoned its efforts in that regard. When asked if Mr. Fairgrieve could read a paragraph, Mr. Warford said Mr. Fairgrieve might get through it, although it would take an incredibly long time, and that Mr. Fairgrieve would be unable to process what he had read or to summarize it. [ 53 ] Finally, Mr.

Fairgrieve was assessed on written expression. He was asked to spell six simple words. It took him 14 minutes and he got one right. The correct spelling was of his own name, although he spelled in a mix of capital and small letters and printing and cursive writing. [ 54 ] Mr. Warford testified that Mr. Fairgrieve fully participated and applied effort throughout his assessment of him. [ 55 ] Mr. Warford testified that Mr. Fairgrieve does best if he has a routine. Any disruption in his routine can be quite distressing, and new and novel information can be difficult for him to process.

All of the treatment team speak to Mr. Fairgrieve slowly, using small words without any complex or compound questions, and then give him adequate time to respond in order to have the most effective communication with him. Any new, novel or abstract concepts will cause problems to arise according to Mr. Warford. [ 56 ] Mr. Warford testified that Mr. Fairgrieve was originally, according to the history taken, right-hand dominant but now he almost exclusively writes with his left. [ 57 ] Turning to Mr. Fairgrieve in the courtroom, Mr.

Warford concluded in his May 2023 report: At this time, it is my professional opinion that Mr. Fairgrieve continues to experience significant deficits in his expressive and receptive aphasia and that these challenges may make it difficult for him to communicate effectively with his legal counsel throughout the duration of his legal proceedings. He will likely require significant accommodations to be made for him to understand the very complex information that will be presented, or abstract questions that may be asked to him in a courtroom setting.

Although there have been modest improvements in his speech and language capabilities, without these accommodations listed above, it is likely that Mr. Fairgrieve will have great difficulty providing his legal counsel with instruction on how to proceed. [ 58 ] The accommodations outlined in the report are: 1. Presenting information to him at a very slow pace. 2. Presenting information to him in small amounts. 3. Repeating questions and information to him if needed. 4. Presenting information to him with examples or in different forms (pictures, gestures, verbally and in writing). 5.

Allowing additional time for him to take in information, process it, formulate a response, and speak. [ 59 ] I turn now to a somewhat expanded overview of the parties’ positions. Crown counsel says there is no question that Mr. Fairgrieve suffers from physical and mental deficits. He has had a number of traumatic brain injuries and strokes, which have impacted his cognitive abilities and resulted in him having expressive and receptive aphasia. Although Crown counsel acknowledges some impact on his cognitive abilities, she submits that Mr.

Fairgrieve’s ability to communicate rather than his cognition is that which is an issue. As she put it, it is not necessarily the case that he does not understand a question; it is whether he can process it. Crown acknowledges that any communications with Mr. Fairgrieve will be slow, laboured and difficult. However, she submits the test for fitness has a low threshold requiring only rudimentary engagement with his counsel and not requiring an actual recollection of the offence. She noted that Mr.

Fairgrieve was apparently able to communicate with his counsel at the Review Board hearing, as that lawyer communicated to the Review Board that he had instructions from Mr. Fairgrieve and that he and Mr. Fairgrieve were on the same page. [ 60 ] Counsel for Mr. Fairgrieve does not agree that Mr. Fairgrieve is fit to stand trial. He submits that while Mr. Fairgrieve has some

understanding of the role of the participants in a criminal trial, aside from the role of Crown, he does not have the ability to effectivelycommunicate with counsel nor to effectively participate in the trial. An effective ability to communicate with counsel and participate inthe trial requires, his counsel submits, that Mr.

Fairgrieve have some level of understanding about who is giving evidence and why.Defence counsel says the ability of counsel to work with an accused during a murder trial should not be diminished and that an accusedshould not be at a trial when he does not know what is going on. [61] I turn now to the law. The Criminal Code provides that an accused person is presumed to be fit to stand trial (s. 672.22).

If anaccused person has been found unfit to stand trial at any point, the presumption is reversed and the accused is presumed to remain unfit.If a party seeks to have the accused found fit, the onus is on that party to prove fitness to stand trial on a balance of probabilities (s.672.22 and s. 672.32). Consequently, on this application the Crown must satisfy me on a balance of probabilities that Mr. Fairgrieve isnow fit to stand trial. [62]

Section 2 of the Criminal Code defines “unfit to stand trial” as follows: unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict isrendered 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; [63] “Mental disorder” is defined in the Code as “a disease of the mind”. [64] In R. v. Cooper, (SCC), [1979] S.C.J. No. 139, cited in R. v. Daley, 2019 NBCA 89 at para. 12, the Court statedthe following: . . . “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning,excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. . . . [65] In R. v. Morrissey, 2007 ONCA 770 , [2007] 87 O.R. (3d) 481 (Ont.

CA), the Court discussed what has been referred toas the seminal case dealing with fitness to stand trial: R. v. Taylor, (1992), (ON CA), 11 O.R. (3d) 323, [1992] O.J.No. 2394, which concluded that in order to be found fit to stand trial, an accused must satisfy a limited cognitive capacity test, which isnot a high threshold.

In Morrissey, the Court said (at para. 27) that the limited cognitive capacity test, which has been accepted across thecountry and adopted by the Supreme Court of Canada, “requires only a relatively rudimentary understanding of the judicial process –sufficient, essentially, to enable the accused to conduct a defence and to instruct counsel in that regard. It is in that sense that the accusedmust be able to ‘communicate with counsel’ and to relate the facts concerning the offence”.

At para. 29 of Morrissey, the Court said,“The ability to communicate with counsel in the context of a fitness inquiry speaks to the ability to seek and receive legal advice.” Atpara. 36, the Court said, “An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards offairness and accords with principles of fundamental justice such as the right to be present at one’s own trial and the right to make fullanswer and defence: . . .

Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry intofitness.” [66] At trial, the judge accepted that it was highly likely that Mr. Morrissey had retrograde amnesia for a period ranging from severalto 30 to 45 minutes prior to his brain injury (which occurred close in time to the alleged offence) and that he tended to confabulate. TheCourt of Appeal made it clear that an inability to recall and relate to his lawyer the specific critical event of the homicide itself did notmean that an accused was not fit to stand trial.

The Court drew a sharp distinction between fitness to stand trial and testimonialcompetence. [67] At para. 39 of Morrissey, the Court said: [39] First, as indicated above, the ability to communicate the evidence (for purposes of testimonial competence) and the ability tocommunicate with counsel (for purposes of fitness for trial), are not the same concepts. The former evokes the capacity to perceive,recollect and communicate matters relating to the issues before the court.

The latter contemplates the ability to communicate withcounsel for the purposes of conducting a defence, considering counsel’s advice, and giving instructions with respect to the defence. AsCarrothers J.A. put it in R. v. Roberts, . . . in language that is still pertinent, albeit pre-Charter, and that was picked up by the trial judgein this case in her charge at the fitness hearing: It is a prerequisite to any criminal trial that the accused be capable of conducting his defence.

Subject only to disruptive conduct on hispart, he must be physically, intellectually, linguistically and communicatively present and able to partake to the best of his natural abilityin his full answer and defence to the charge against him. [68] It is of note that despite a brain injury caused by a gunshot, Mr. Morrissey scored in the average range of verbal abilities, verbalmemory, and visual memory. His capacity to understand spoken language and to express himself verbally was, according to thedecisions, relatively unimpaired.

He was described as being capable of following and recalling basic non-technical language andconversation in the context of a trial. The Court determined that Mr. Morrissey was able to understand the nature and object of theproceedings and the potential consequences and that he was able to communicate with his counsel and assist in his defence, and thereforewas fit to stand trial, notwithstanding his amnesia about the specific events which led to the charge against him. [69] In R. v.

Adam, 2013 ONSC 373, the accused suffered from schizophrenia and was unable to maintain a relationship with counsel.During a voir dire, the accused’s condition seemed to deteriorate and Crown sought what was a third fitness assessment and third fitnesshearing. The trial judge found that Mr. Adam satisfied the first two criteria for fitness (i.e., to understand the nature and object of theproceedings and to understand the possible consequences) but was concerned about the third criteria. In ordering the further assessment

and directing a hearing before the jury on the issue of fitness, the Court noted: [33] But the fact of the matter is that Mr. Adam is self-represented. This is unlikely to change. As such, at trial, he will be entitled to ask questions of all Crown witnesses, call his own witnesses, testify on his own behalf, make submissions on all issues that arise and address the jury. With respect, and as I have explained above, Mr. Adam has been unable to act in any way that is remotely effective. . . . While Mr.

Adam is present in court in both body and in voice, he is more of a confused spectator, rather than a meaningful participant in his own case. [34] It is unfair to compare Mr. Adam’s situation to the fabled accused person (referred to in the literature and many of the decisions) who is bent on making bad decisions. The system accepts that, based on notions of personal autonomy, accused persons are free to make their own tactical decisions, whether good or bad. But this acceptance is predicated on the underlying assumption that the accused person is unfettered by any sort of disability.

That is why appellate courts are disinclined to allow accused persons to complain about poor tactical decisions after-the-fact, when things did not go as planned. But Mr. Adam does not stand in the same position. This is confirmed by Dr. Swayze’s opinion that: “His difficulties are not simply poor choices, but fundamental deficits in communication, both as regards internalizing, processing and expressing information.” [ 70 ] In R. v. Triano , [2014] O.J. No. 2303 , the accused was an 80-year-old who had had at least two strokes.

He had been diagnosed with organic vascular-based dementia in the mild to moderate range. It was the opinion of the forensic psychiatrist that, as a result of his strokes and dementia, Mr. Triano was indifferent as to any outcome of the trial. In reaching the conclusion that the accused was not fit to stand trial, the trial judge said: [72] It is obvious in watching Mr. Triano in court that he is present in body. However, is more akin to what Justice Trotter described in paragraph 33 of the Adam decision, that is to say, he is more of a confused spectator rather than a meaningful participant in his own case.

It was obvious in watching him that he was not following the proceedings. He was not speaking to his counsel. He was not reacting in any way to anything that was being said, either in evidence or in argument. [73] There is clear and uncontested evidence that there is brain damage, the result of strokes. . . . [74] It is clear from the evidence that not only is Mr. Triano incapable of speaking of the events that are the basis of the charge, he is also unable to review any of the surrounding facts or what might properly be called the collateral facts that could be relevant to his defence. . . . [75] In my view, Mr.

Triano was not in a position to meaningfully participate in the court process. He is not in a position to meaningfully instruct his counsel or receive advice. . . . [ 71 ] Counsel also provided me with R. v. Daley , 2019 NBCA 89 , a decision from the New Brunswick Court of Appeal. Mr. Daley had been found unfit to stand trial and the Crown appealed that ruling. At the time of the trial, Mr. Daley was 83 years old, suffering from mixed vascular Alzheimer’s Dementia. The Court had to consider the appropriate test to be applied to the issue of an accused person’s ability to communicate with counsel.

In its introduction the Court said this: [2] There is a line of cases, based on a Saskatchewan Court of Appeal decision, holding that the ability to communicate with counsel “is limited to an inquiry into whether an accused can recount to his or her counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence” . . . A more prevalent line of cases, based on an Ontario Court of Appeal decision, holds otherwise.

According to these decisions, it is not the accused’s ability to provide a reliable account of the events immediately preceding and surrounding the alleged crime that is the critical issue but rather whether the accused is able, in real time, to “speak with counsel rationally, to understand questions and answer them in an intelligible fashion, and to make critical decisions on counsel’s advice concerning the offence with which he is charged” . . . [ 72 ] After a review of the cases across the nation dealing with the issue of an accused person’s ability to communicate with counsel, the Court endorsed the Morrissey approach to the question. [ 73 ] This approach also was applied by Justice Devlin in this court in R. v.

Kampos , 2020 BCSC 1437 . That is the first decision of the two Kampos cases provided to me by counsel. In that case, Justice Devlin held: [24] The decisions of Taylor , Daley and Morrissey establish that fundamental to the concept of fitness in s. 2 of the Code a re the basic notions of fairness. As Blair J.A. writing for the Court in Morrissey stated, “an accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice” [ 74 ] Finally, I have considered the recent case of R. v. Bharwani , 2023 ONCA 203 .

I drew counsel’s attention to the case and invited further submissions, which invitation was declined by the Crown. Defence counsel, by memorandum, submitted, essentially, that the principles applicable to fitness assessments were concisely laid out in that decision, which supported the defence contention that Mr. Fairgrieve remains unfit to stand trial. [ 75 ] In Bharwani , the Court was invited to reconsider the “limited cognitive capacity” test enunciated in Taylor .

The Court made it clear that the “usual” questions asked on a fitness hearing: what are the roles of the people in the courtroom; what are the charges; what are the available pleas; what are the consequences of conviction; what is the meaning of an oath; what is perjury; and what are the consequences of perjury, are not the only inquiries that need to be made. [ 76 ] With respect to Taylor , the Court, in Bharwani , said: [87] The Taylor decision also makes clear that the s. 2 definition of “unfit to stand trial” reflects nothing more than a statutory entrenchment of the “extensive case-law” that had come before: . . .

Two of those prior authorities are cited in Taylor, both of which support the suggestion that the fitness test takes into account the accused’s ability to “rationally” communicate.

. . . [90] Therefore, we understand the Taylor decision as accepting that in determining fitness to stand trial, some consideration must be given to whether the accused has the ability to converse or communicate rationally with counsel or the court. . . . . . . [98] The Taylor decision also makes clear that to meet the “limited cognitive capacity” test, “the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way ”: . . . [Emphasis in Bharwani ]. [99] In putting some parameters around what was meant by participating in a “meaningful way”, Taylor is clear that competing interests are at stake.

For instance, the Taylor decision emphasizes that, while the dignity of the trial process must be maintained and accurate findings of guilt need to be made, the finality of criminal proceedings and the need to protect the autonomy of accused are also important principles that should not be lost in the mix. . . . [107] To summarize, properly interpreted, Taylor stands for the following propositions: 1.

The s. 2 definition of “unfit to stand trial” ─ which at its core concerns itself with whether the accused is unable on account of mental disorder to conduct a defence or instruct counsel to do so – is the test for determining fitness. While it is open to the court to interpret that test in accordance with the principles of statutory

interpretation, it is not open to the court to ignore the statutory test and create a new one. 2. As the s. 2 definition is a statutory entrenchment of the prior case law in the area, that case law guides the

interpretation of its content. Based on that case law, an accused must be capable of communicating “rationally” with counsel or the court in order to be fit. This includes an inquiry into whether an accused is able to understand relevant information, apply that information in the context of their decision-making, and intelligibly communicate. 3. The touchstones of the s. 2 fitness inquiry ─ whether the accused can be meaningfully present and meaningfully participate at their trial ─ inform a purposive

interpretation and application of the s. 2 fitness test. They do not constitute a stand-alone test for fitness. 4. The accused need not have the capacity to engage in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests. [108] We would end the discussion of Taylor by noting this. There is no magic in the term “limited cognitive capacity”. The test could just as easily be named the “capacity to stand trial” test or, even more simply, the “fitness test”.

What the term coined in Taylor – the “limited cognitive capacity” test – nicely signaled, though, was that the fitness test did not require that the accused with a mental disorder have analytic capacity or, as the court put it, the ability to make “rational decisions beneficial to him”: at p. 339. Still, this expression seems to have generated confusion.

On a go-forward basis, therefore, particularly with the clarifications below, the fitness test can simply be known as the “fitness test”. . . . [112] In any event, for the reasons previously given, we agree with all counsel on appeal that those questions should never be used as the definitive test for fitness. While the questions are undoubtedly helpful in providing insight into an accused’s fitness, they will often fall short of the mark in terms of exploring whether an accused is unfit to stand trial because unfitness, as a state and as a legal standard, is far more complex.

Quite simply, as already shown, determining an accused’s fitness to stand trial demands a much more nuanced inquiry than simply placing tick marks beside seven questions that can be answered “correctly”. . . . [125] In conclusion on this point, it may be helpful to provide an example. There comes a time in a trial where all accused, whether self- represented or not, must decide whether to testify. In making that decision, the accused must be able to understand that this is their decision alone.

The accused must also be able to understand that the consequence of not testifying will be that their version of events will not form part of the evidence considered by the trier of fact. And, the accused must be able to understand that the consequence of testifying is that they may or may not be believed. In addition, the accused must be able to understand that if they testify, they will be open to cross-examination.

Provided that the accused has the ability to understand these things, it matters not whether their actual decision is objectively unwise in the circumstances. [ 77 ] The Court, at para. 167, provided the following

summary: [167] To sum up, the following principles should inform all fitness assessments: 1. There is one fitness test for all accused, whether represented by counsel or not. This test is applied contextually. 2. The test for fitness is set out in the statutory definition of “unfit to stand trial” in s. 2 of the Criminal Code . 3. A person is unfit to stand trial if, on account of mental disorder, the person is unable to conduct a defence or to instruct counsel to do so. 4. The purpose of the s. 2 fitness test is to ensure that the accused can be meaningfully present and meaningfully participate at their trial. These touchstones inform a purposive

interpretation and application of the s. 2 fitness test and do not themselves constitute a stand- alone test.

5. The Taylor test questions are not a sufficient surrogate for assessing fitness but are helpful in providing insights into an accused’s abilities in relation to the s. 2 criteria. Applying the fitness test is more nuanced than the questions recognize. 6. The accused must have a reality-based understanding of the nature and object and possible consequences of the proceedings. 7. The accused must have the ability to make decisions.

This involves the ability to understand available options, the ability to select from those options, the ability to understand the basic consequences arising from those options, and the ability to intelligibly communicate to either counsel or the court the decision arrived upon. 8. The accused need not have the capacity to engage in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests. [ 78 ] It is clear that a nuanced and contextual approach to the issue of fitness is required in this case. The fundamental issue before me is Mr.

Fairgrieve’s ability to communicate with counsel and meaningfully participate in the trial. The charge against Mr. Fairgrieve is second degree murder and I am told that the case is a circumstantial one. There will no doubt be many lay witnesses, police witnesses, and experts. While an accused person need not have the cognitive capacity to understand the technical evidence of experts, he or she needs to be present and capable of communicating with counsel as the evidence unfolds. [ 79 ] Although Crown submits that Mr.

Fairgrieve’s challenges are not cognitive, as I said earlier, but rather related to his ability to express and receive language, there is no direct evidence before me of his cognitive abilities. A neuropsychological assessment of Mr. Fairgrieve was conducted at the Forensic Psychiatric Hospital and the resulting report, apparently dated December 8, 2022, was referenced in Mr. Warford’s updated report, which was marked as an exhibit at trial.

Although invited by me to call that neuropsychologist, Crown chose not to put that evidence before the Court. [ 80 ] There are competing interests which must be balanced on a fitness hearing. As noted in Bharwani , being put under the jurisdiction of the Review Board results in serious unpredictability for an unfit accused since the accused will remain under the Board’s jurisdiction until found fit to stand trial or the court grants a stay based on a finding of permanent unfitness. A presumed-innocent accused who insists on having their trial is denied their trial (para. 145).

Being declared unfit is not, therefore, a panacea for the accused (para. 146). An accused found unfit could end up with a greater loss of liberty than if they had gone to trial (para. 147). For these reasons, a fitness test must not be set too low in order to protect the integrity of the justice system (para. 150). On the other hand, there are systemic issues which arise from a finding of unfitness, given the delay and perhaps failure to ever have a determination on the merits of the case, which is, of course, always of concern to victims and to the public.

This delay impacts victims of crime, witnesses and the broader community as well as, possibly, the criminal proceeding itself (para. 151). [ 81 ] As noted by the judge in Triano , at para. 69, “Fitness now requires fairness.” Where an accused person cannot communicate with counsel or meaningfully participate in a trial, the process cannot be said to be fair. [ 82 ] Mr. Fairgrieve’s presentation while he testified was quite childlike. He appeared to be making every effort to understand and to respond to questions. [ 83 ] While Dr. Gharakhanian and Mr. Warford testified and during counsel’s submissions, Mr.

Fairgrieve was, of course, in attendance. His attendance on the first two days of the hearing, that is to say for his own evidence, for Dr. Gharakhanian’s evidence and for part of Mr. Warford’s evidence, was in person. On the third day, for the completion of the evidence of Mr. Warford and for submissions, he was permitted to attend by videoconference in order to accommodate his physical challenges. [ 84 ] While Mr.

Fairgrieve was in the witness box, it appeared that his ability to communicate deteriorated gradually, perhaps due to the discomfort associated with his transport between the jail and the courthouse, which in this jurisdiction is a trip of over two hours each way, and the fact that he was out of his normal routine and environment. On both days, once he was out of the witness box, he appeared disengaged. [ 85 ] Based on my observations, he did not look at the witnesses nor attempt to interact with his counsel nor to respond to anything that was said in court when he was in personal attendance.

While on videoconferencing he did not appear to look at the screen or camera at all. He predominantly appeared to be looking down or away. It was impossible to tell whether he was listening and, if so, whether he was able to process any of what he heard. [ 86 ] In the context of a full trial, it is difficult to imagine how his deficits could possibly be accommodated, given all of the evidence before me. A courtroom during a trial is not a serene place, devoid of distractions.

Counsel and witnesses cannot be expected to speak extraordinarily slowly, using only simple words, and without reference to complex, novel or abstract concepts. [ 87 ] The onus is on the Crown, as I said earlier, to prove Mr. Fairgrieve’s fitness on a balance of probabilities. Having considered all of the evidence, I am unable to find that Mr. Fairgrieve would be able to meaningfully participate or be meaningfully present at his trial.

Consequently, I find that the Crown has not proved his fitness on a balance of probabilities and that is notwithstanding the Review Board’s determination following its hearing on November 28th of 2022. As a result, a previous disposition and finding of unfit to stand trial has not been displaced.

The disposition remains in place. [ 88 ] As required by the provisions of the Criminal Code , s. 672.52 , I will order that a transcript of the hearing before me, a copy of all of the exhibits, that includes the audio contained on the thumb drive and a transcript of my decision, be sent to the Review Board without delay. [ 89 ] That concludes my decision, counsel. Is there anything arising? [ 90 ] CNSL A. BUCHANAN: No, Justice, not from me. Thank you for your careful consideration. [ 91 ] CNSL G. VERDURMEN: Nothing from the defence, Justice. Thank you for your decision.

[ 92 ] THE COURT: All right. So Mr. Fairgrieve will remain at the Forensic Psychiatric Hospital and then subject to the ongoing provisions of reviews and assessments by them. “Beames J.”