R. v. C.W.W., 2023 BCPC 17

Citation: R. v. C.W.W. 2023 BCPC 17 Date: 20230127 File No: 102025-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. C.W.W. BAN ON PUBLICATION Pursuant to

Section 486.4(2.1) of the Criminal Code RULING ON CONSTITUTIONAL CHALLENGE OF THE HONOURABLE JUDGE CAMPBELL Counsel for the Crown: M. Rankin and L. Berman Counsel for the Defendant: G. Paruk Place of Hearing: Port Coquitlam , B.C. Date of Hearing: November 22, 2022 Date of Judgment: January 27, 2023

Introduction [ 1 ] The fitness provisions in

Part XX.1 of the Criminal Code, RSC 1985, c. C-46 ( Criminal Code ) are intended to ensure that an accused is mentally fit to stand trial, by providing trial judges with the authority to order a psychiatric assessment and conduct a fitness hearing if there are grounds to believe that an accused is unfit. [ 2 ] The applicant C.W. was convicted after trial of historical sexual offences. The court ordered a psychiatric assessment of his fitness to stand trial on two occasions during the trial due to concerns about his mental condition.

On both occasions the psychiatrist concluded that the applicant was cognitively impaired but that he understood the proceedings and was fit to stand trial. Based on these findings, the trial continued. The applicant was ultimately found guilty of certain counts. [ 3 ] The applicant’s mental condition deteriorated following the verdict. A further psychiatric assessment was produced at sentencing. The assessing psychiatrist reported that the applicant was no longer mentally fit. [ 4 ] However, the fitness provisions of the Criminal Code do not apply after the verdict is rendered.

There is no authority in the Criminal Code to order a fitness assessment or hold a fitness hearing for an accused who becomes mentally unfit at sentencing. [ 5 ] The defence brings an application pursuant to ss. 7 and 52(1) of the Canadian Charter of Rights and Freedoms (“ Charter ”) based on the exclusion of sentencing proceedings from the fitness regime in the Criminal Code .

He also submits that there is common law authority for the court to conduct a fitness hearing. [ 6 ] For the reasons that follow, I find that the exclusion of sentencing proceedings from the requirement that an accused be fit to stand trial infringes s. 7 of the Charter , and that the proper remedy is to read in language to the fitness provisions of the Criminal Code in order to include sentencing proceedings. Factual Background [ 7 ] The applicant was charged with historical sexual offences with respect to two young persons. The offences were alleged to have occurred between 1989 and 1996.

The applicant was married to the complainants’ grandmother at the time of the offences. [ 8 ] At the time of the trial, the applicant was 79 years old. He exhibited cognitive problems at various stages of the trial proceedings. Following the testimony of the complainants, the applicant was admitted to the psychiatric unit of a hospital for several days. When the trial resumed, the defence applied for an order that the applicant’s fitness to stand trial be assessed pursuant to s. 672.11 of the Criminal Code . [ 9 ] The assessment was conducted by forensic psychiatrist Dr.

Nicola Hodelet, who produced a fitness report on June 15, 2021. The applicant was diagnosed with a major neurocognitive disorder but demonstrated an understanding of the legal proceedings. The psychiatrist concluded that he met the test for fitness to stand trial.

However, the psychiatrist noted that his mental fitness would likely deteriorate due to the progression of the neurocognitive disorder. [ 10 ] Based on the conclusion in the psychiatric report that the applicant was fit to stand trial, neither the defence nor the Crown sought a fitness hearing and the trial continued. [ 11 ] Later in the trial, however, the defence raised further concerns about the applicant’s mental state. The applicant’s counsel reported that the applicant was not able to appropriately respond to questioning in meeting to prepare for the continuation of the trial in August, 2021.

The defence requested a further fitness assessment. [ 12 ] A second fitness assessment was ordered on September 9, 2021, with a direction that the assessment be conducted as close as reasonably possible to the continuation of the trial so that the results of the assessment would be current when the trial resumed. [ 13 ] The second fitness report was produced on October 19, 2021. The assessment was conducted by the same psychiatrist, who reported that the applicant continued to present with a major neurocognitive disorder and that his mental state had possibly deteriorated since the initial assessment.

However, the psychiatrist again concluded that the applicant generally comprehended the nature of the proceedings and was fit to stand trial. The psychiatrist also recommended that due to the applicant’s cognitive disorder, his mental state and ability to understand the trial should be monitored as the proceedings unfolded. [ 14 ] As the psychiatric report concluded that the applicant was fit to stand trial, the trial continued.

The applicant was found not guilty of certain counts but guilty of other counts with respect to one of the complainants. [ 15 ] At the request of the Crown, the court ordered a pre-sentence report with a risk assessment. The report was produced on February 14, 2022. The applicant’s mental state was not formally tested on this occasion, but the psychiatrist noted that there was no indication that his cognitive function had declined since the previous assessment.

However, the psychiatrist again noted that the applicant’s cognitive disorder was likely to deteriorate. [ 16 ] The sentencing hearing was scheduled for April 12, 2022. At the commencement of the hearing, the applicant’s counsel again raised the applicant’s mental condition. Counsel advised that after meeting with the client to prepare for the sentencing, he believed that the applicant was not understanding the court proceedings. [ 17 ] The defence requested to adjourn for a further psychiatric assessment. The Crown raised concern about delay. The court concluded that a further fitness assessment was required.

The accused’s mental status had been a recurring issue during the trial. At the

time of sentencing, his mental fitness had not been formally assessed for several months. Previous psychiatric reports had warned that his mental fitness was likely to deteriorate. The court noted the importance of the accused understanding the sentencing proceedings. The sentencing was adjourned to allow for a further assessment. [ 18 ] On May 2, 2022, the court received a supplemental fitness report. The assessment was conducted by the same psychiatrist who had carried out the earlier assessments. The psychiatrist found that the applicant’s cognitive disorder had deteriorated.

The psychiatrist concluded that the applicant does not properly understand the legal proceedings and that he appeared to have a diminished understanding of the consequences of the sentencing hearing. The psychiatrist doubted that his cognitive functioning was sufficient to communicate with counsel or understand the legal process, specifically regarding his sentencing. The psychiatrist concluded that it was likely that this condition would continue to deteriorate. [ 19 ] When the proceedings resumed on May 3, 2022, the parties made submissions with respect to the

interpretation of the fitness provisions in the Criminal Code , including the definition of “unfit to stand trial” in s. 2 and the authority to order an assessment pursuant to s. 672.11 and hold a fitness hearing pursuant to s. 672.23. The Crown and the defence agreed that after a verdict is rendered there is no authority in the Criminal Code to order that the accused’s mental state be assessed or hold a fitness hearing. [ 20 ] The defence subsequently provided notice of an application pursuant to the Constitutional Question Act with respect to the constitutionality of ss. 2 and 672.23(1) of the Criminal Code .

Issues [ 21 ] The issues raised on this application are as follows: 1. Do ss. 2 and 672.23 of the Criminal Code infringe s. 7 of the Charter ? If so, is the infringement justified under s. 1? 2. If the infringement is not justified under s. 1 of the Charter , what is the appropriate remedy? 3. Is there authority pursuant to the common law to order an assessment of an accused’s mental fitness after a verdict has been rendered and to hold a hearing to determine whether the accused is mentally fit to be sentenced? Legal Framework [ 22 ] The current fitness regime was brought into force with the enactment of

Part XX.1 of the Criminal Code in 1992. [ 23 ] An accused is presumed mentally fit to stand trial pursuant to s. 672.22 of the Criminal Code . The presumption of fitness can be displaced if the evidence establishes upon a balance of probabilities that the accused is unfit. [ 24 ] Where there are reasonable grounds to believe that an assessment of the mental condition of the accused is necessary to determine whether the accused is unfit to stand trial, the court may order an assessment pursuant to s. 672.11. [ 25 ] Prior to the enactment of the

Part XX.1 in 1992, “unfit to stand trial” was not defined in the Criminal Code . The test for fitness to stand trial was developed under the common law. “Unfit to stand trial” is predicated on the existence of a mental disorder. Mental fitness is set at a low threshold, requiring a limited cognitive capacity to understand the proceedings and to communicate with counsel. The fitness threshold does not require that the accused exercise analytical reasoning or be capable of making rational decisions that protect their interests.

It requires only a basic understanding of the trial process, sufficient to enable the accused to conduct a defence and instruct counsel: R. v. Morrissey , 2007 ONCA 770 , at para. 27 . [ 26 ] “Unfit to stand trial” is now defined in s. 2 of the Criminal Code as meaning: …unable on account of mental disorder to conduct a defence at any stage of the proceedings before 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 and object of the proceedings, (

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

c) communicate with counsel [Emphasis added.] [ 27 ]

Section 672.23 provides for a hearing to determine mental fitness: COURT MAY DIRECT ISSUE TO BE TRIED 672.23

(1) Where the court has reasonable grounds, at any stage of the proceedings before a verdict is rendered , to believe that the accused is unfit to stand trial, the court may direct, of its own motion or an application of the accused or the prosecutor, that the issue of fitness of the accused be tried. [Emphasis added.] [ 28 ] There is no question that based on the wording of these provisions, the Criminal Code only provides authority for consideration of fitness up to the point that a verdict is rendered. There is no jurisdiction in the Criminal Code to consider mental fitness at the sentencing stage of the proceedings. Positions of the Parties

[29] The defence submits that ss. 2 and 672.23(1) of the Criminal Code deprive the applicant of his rights in s. 7 of the Charter, asthese provisions exclude him from the fitness regime in the Criminal Code despite the evidence that he is mentally unfit.

The applicantsubmits that ss. 2 and s. 672.23(1) should be declared of no force and effect, or alternatively that the court should order a constitutionalremedy of reading in wording to the legislation so as to include the applicant in the fitness provisions of the Criminal Code. [30] The defence also submits that in the alternative, there is common law jurisdiction for the court to order a fitness assessment andhold a fitness hearing. [31] The Crown acknowledges that s. 7 of the Charter would be infringed by sentencing an accused who is mentally unfit toparticipate in the proceedings due to a mental disorder.

The Crown submits that the appropriate constitutional remedy is “reading in”language to the fitness provisions to incorporate sentencing proceedings. [32] The Crown does not agree that there is common law jurisdiction for the court to order that the issue of fitness be assessed or triedpost-verdict. Analysis [33] Counsel have provided authorities dealing with the issue of mental fitness at sentencing. There are very few cases addressing theexclusion of sentencing proceedings from the fitness provisions in the Criminal Code.

This is likely because an accused who is mentallyfit at the time of the finding of guilt is generally sentenced within a short time such that their state of mental fitness continues throughoutthe sentencing proceeding. [34] In those cases where an accused has become mentally unfit at sentencing, courts have considered the jurisdictional basis to assessan accused’s mental fitness post-verdict. In some cases, courts have ordered a constitutional remedy pursuant to the Charter based on aninfringement of s. 7. [35] In R. v. Balliram (2003), (ON SC), 173 C.C.C. (3d) 547 (Ont. S.C.) (also known as R. v.

G.B.), the Crownsought to have the accused declared a dangerous offender. The accused had become mentally unfit after the verdict but prior tosentencing. The defence brought an application alleging a breach of the Charter. McWatt J. found that excluding an accused from thefitness provisions in the Criminal Code post-verdict infringes s. 7 of the Charter. The court adopted a remedy of “reading in” languageso as to incorporate the sentencing stage of the proceedings into the fitness provisions in the Code. [36] In R. v. Morrison, [2016] S.J.

No. 437, the accused was assessed after the verdict and found to be mentally unfit. The defencebrought a Charter application. The court held that excluding sentencing proceedings from the fitness provisions infringed the accused’ss. 7 Charter rights. As in R. v. Balliram, the court adopted the remedy of reading in wording allowing for fitness to be tried post-verdict. [37] In R. v. Jaser, 2015 ONSC 4729 , [2015] O.J. No. 3910, the Crown and amicus curaie applied for a fitness assessmentat sentencing as a psychiatric report had raised concerns about the accused’s mental health.

Code J. was invited to adopt the Charteranalysis in R. v. Balliram, supra. However, there was no formal application for a Charter remedy. Code J. agreed that s. 7 of theCharter requires that trial judges have the authority to ensure that an accused meets the test for mental fitness at sentencing. Hedeclined, however, to adopt a reading in remedy, questioning whether the fitness provisions in the Criminal Code can be applied atsentencing or whether it would require reading in detailed and complicated amendments to the existing legislation.

He declined to granta Charter remedy but relied on the Ontario Mental Health Act to order a fitness assessment. Do ss. 2 and 672.23(1) of the Criminal Code breach s. 7 of the Charter? [38]

Section 7 of the Charter states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [39] In order to demonstrate a violation of s. 7, an applicant must show that the law interferes with their life, liberty or security of theperson. Once they have established that s. 7 is engaged, they must then show that the deprivation is not in accordance with the principlesof fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5 , [2015] 1 SCR 331, at para. 55; R. v.

Ndhlovu, 2022SCC 38, at para. 49. [40] Pursuant to s. 7, if a conviction will result in the deprivation of life, liberty or the security of the person of the accused, then theproceedings must accordingly respect the principles of fundamental justice: R. v. Vaillancourt, (SCC), [1987] 2 S.C.R.636, at para. 26. [41] The applicant is before the court to be sentenced for historical sexual offences. The offences are punishable by imprisonment. The risk of imprisonment at the applicant’s sentencing hearing is sufficient to trigger the liberty interest in s. 7.

The proceedings mustaccordingly be consistent with the principles of fundamental justice. Principles of Fundamental Justice [42] The principles of fundamental justice are found in the core tenets of the legal system, including the rights set out in sections 8 to14 of the Charter and the fundamental principles of criminal law policy that have animated legislation and the common law: R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, at para. 23; R. v. Pearson, (SCC), [1992] 3 S.C.R. 665, at 683. a.

Procedural Fairness [43] In this case, the Crown acknowledges that if the court finds that the applicant is unfit, imposing sentence would not be inaccordance with the principles of fundamental justice. The Crown submits that the operative principle of fundamental justice is

procedural fairness. [44] Procedural fairness is an established principle of fundamental justice: Canada (Citizenship and Immigration) v. Harkat, 2014SCC 37, at para. 41. The requirements of procedural fairness vary according to the context in which they arise: Lyons, at para. 85. Certain procedural protections might be constitutionally required in one context but not in another. The requirements of proceduralfairness depend on the nature of the decision being made and the importance of the rights and interests at stake.

The more serious theinfringement of life, liberty and security of the person, the more rigorous the procedural requirements: Charkaoui v. Canada (Citizenshipand Immigration), 2008 SCC 38 , [2008] 2 S.C.R. 326, at paras. 53-58. [45] Because an accused’s liberty is at stake at a sentencing hearing, a high degree of procedural fairness is required. [46] Procedural fairness requires that an accused facing sentencing must be present and capable of understanding the proceedings.

Cognitive fitness is essential in order to give effect to the sentencing provisions in the Criminal Code, which require that an accused havea fair opportunity to present evidence and respond to Crown submissions on a range of issues, including the factual basis for thesentence, aggravating factors and the appropriate sentence. [47] Mental fitness is required for an accused to be capable of exercising a number of procedural rights at a sentencing hearing.

Section 723 of the Criminal Code provides an accused at a sentencing hearing with the right to make submissions and call evidence,including the right to testify. Pursuant to s. 726, an accused is entitled to address the court before sentence is imposed. [48] Sentencing hearings can include an application that the accused be declared a dangerous offender, which can involve complexpsychiatric evidence. In the event that facts are disputed at sentencing, the Crown is required to prove aggravating facts beyond areasonable doubt at a Gardiner hearing.

The accused is entitled to participate by cross-examining witnesses, leading evidence andmaking submissions. [49] An accused has the right to participate in the production of pre-sentence reports. It is common for sentencing judges to order pre-sentence reports in order to assist in understanding the accused’s background and attitude towards the offence. Pre-sentence reports arein some cases relied upon by the sentencing judge to assess the risk of re-offending.

A mentally unfit accused may not be able tomeaningfully participate in the production of pre-sentence reports. [50] As at trial, it is necessary for an accused to be capable of communicating with counsel at sentencing. The accused must becapable of providing information about their personal circumstances and the circumstances surrounding the offence. [51] Sentencing hearings can involve complex issues and grave consequences.

It is as important that an accused have cognitivefitness at the sentencing stage as it is during the trial. [52] The ability to comprehend the sentence is also a critical aspect of sentencing. Conditions are routinely imposed in probationorders or conditional sentence orders. An accused must understand the conditions and appreciate the consequences of failing to complywith a sentence.

Imposing sentence on a mentally unfit offender also raises concerns about the enforceability of the order, includingwhether they could be held criminally liable for failing to comply with the sentence. [53] The requirement of mental fitness also relates to the accused’s right to be present. Section 650(1) of the Criminal Codeguarantees the right to be present during the whole of the trial, which includes sentencing: R. v. Hertrich, (ON CA). The right to be present extends beyond mere physical presence. The accused must have sufficient mental capacity to participate in theproceedings in a meaningful way: R. v.

Taylor (1992), (ON CA), [1992] O.J. No. 2394, at para. 50. As stated byFairburn J. in R. v. Walker, 2019 ONCA 765, at para. 44, proceeding against an accused who is not mentally present is akin toproceeding in absentia. [54] Sentencing a mentally unfit accused is analogous to proceeding against an accused who requires but is not provided with aninterpreter. Although physically present, the accused is not “present” during the trial as mandated by s. 650(1) due to their inability tounderstand the proceedings: R. v. Reale (1973), (ON CA), 13 C.C.C. (2d) 345 (Ont.

C.A.), at 354 (affirmed (SCC), [1975] 2 S.C.R. 624); R. v. Tran, (SCC), [1994] 2 S.C.R. 951. If an accused is not “present” in the sense ofcapable of understanding the proceedings, “the adjudication loses its character as a reasoned interaction… and becomes an invectiveagainst an insensible object”.[i] [55] In

summary, the procedural rights and obligations that arise at sentencing depend on an accused being “fit”, in the sense that theyare not suffering from a mental disorder that renders them incapable of understanding the proceedings or instructing counsel. [56] I accept that mental fitness at sentencing is a component of procedural fairness protected by s. 7 of the Charter.

Sentencing aperson who suffers from a mental disorder and who is incapable of understanding the nature of the proceedings or instructing counseldoes not accord with procedural fairness. [57] In addition to being a requirement of procedural fairness, however, it is my view that the requirement that an accused be mentallyfit at sentencing should be recognized as a stand-alone principle of fundamental justice protected by s. 7 of the Charter. b.

Fitness to be Sentenced as a Stand-Alone Principle of Fundamental Justice [58] Whether a legal principle may constitute a principle of fundamental justice depends upon the nature, sources, rationale and roleof that principle in our legal system: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at 503. To be a principleof fundamental justice, it must be generally viewed as essential to the administration of justice: Canadian Foundation for Children,Youth and the Law v. Canada (Attorney General), 2004 SCC 4 , [2004] 1 S.C.R. 76, at para. 8. [59] In R. v.

D.B., 2008 SCC 25 , [2008] 2 S.C.R. 3, the Supreme Court of Canada summarized the framework for assessingwhether a particular rule or principle constitutes a principle of fundamental justice within the meaning of s. 7 of the Charter. In order to

be a principle of fundamental justice, the following criteria must be met: 1. it must be a legal principle; 2. there must be a consensus that it is fundamental to the way in which the legal system ought fairly to operate; and 3. it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, libertyor security of the person. [60] The first part of the test is met as the requirement that an accused be mentally fit in order to be sentenced is an established legalprinciple that is deeply-rooted in the common law.

Clear statements of the principle are found in historical jurisprudence, including TheKing v. Leys, (1910) (ON CA), 17 C.C.C. 198, in which the Ontario Court of Appeal affirmed that “No person can berightly tried, sentenced, or executed, while insane”. [61] In recent years, the principle has been affirmed in R. v.

Walker, supra, in which the Ontario Court of Appeal held that if fitnessconcerns arise at sentencing, the proceedings cannot continue until the accused’s fitness has been assessed and determined. [62] With respect to the second requirement, there is significant consensus that this principle is fundamental to the proper functioningof criminal proceedings. In the reported cases where the issue of fitness at sentencing has been considered, it has been universallyrecognized that an accused must be mentally fit at sentencing.

The importance of this legal principle has also been affirmed in academicwriting.[ii] [63] The third requirement is that the principle must be capable of being identified with some degree of precision and provide ajusticiable standard. The requirement of fitness at sentencing is a discrete and clearly-defined principle.

The parameters of mentalfitness are well-established in the existing common law and statutory provisions that apply to fitness to stand trial. [64] In my view, the requirement of mental fitness at sentencing is one of the basic tenets of the legal system that constitute theprinciples of fundamental justice. [65] Whether it is expressed as a requirement for procedural fairness, or a stand-alone principle of fundamental justice, I conclude thats. 7 of the Charter requires that an accused be mentally fit in order to be sentenced.

Evidentiary Basis for a Charter Remedy [66] The Crown submits that it is necessary for the court to find that the applicant is in fact mentally unfit in order for s. 7 to beinfringed. The Crown does not contest the findings in the psychiatric reports or dispute that the applicant is unfit. [67] In my view, a finding that an accused is mentally unfit is not required, as the s. 7 infringement arises based on reasonable groundsto believe that an accused is unfit.

The defect in the Criminal Code provisions is that there is no authority to order an assessment or holda fitness hearing even if there are grounds to believe that an accused is unfit. In a case where the Crown disputes that an accused is unfit,an unfit accused may be left without a remedy as there is no authority in the Criminal Code for the court to order an assessment. [68] The threshold for ordering a fitness hearing at trial pursuant to the existing provisions of the Criminal Code is “reasonablegrounds to believe that an accused is unfit”.

For the purposes of this application and the particular legislative provisions at issue, thesame threshold should be sufficient to trigger s. 7 of the Charter with respect to mental fitness at sentencing. A higher threshold couldhave the effect of making a Charter remedy inaccessible for a mentally unfit accused who requires an assessment in order to establish abreach of the Charter.

If it were necessary to establish that the accused is in fact unfit in order to establish a breach of the Charter, anaccused may be denied a sufficient evidentiary basis for a Charter application as there is no authority to order an assessment. [69] In my view, evidence establishing reasonable grounds to believe that an accused is unfit at sentencing is sufficient to give rise toan infringement of s. 7 of the Charter. [70] The uncontroverted evidence before the court is that the applicant does not adequately understand the proceedings due to amental disorder.

The assessing psychiatrist questioned whether he is capable of adequately communicating with counsel. In my view,there are not only reasonable grounds to believe that the applicant is unfit, the evidence supports a finding that he is mentally unfit toparticipate in the sentencing. Conclusion -

Section 7 of the Charter [71] I find that the relevant Criminal Code provisions infringe s. 7 of the Charter as they exclude sentencing proceedings from therequirement that an accused be fit to stand trial. Sentencing a person who is incapable of understanding the nature of the proceedings orinstructing counsel due to a mental disorder does not accord with the principles of fundamental justice.

Section 1 [72] The Crown does not submit or attempt to establish that the constitutional infringement can be justified under s. 1 of the Charter. It is well established that a violation of the principles of fundamental justice will rarely be upheld as a reasonable limit demonstrablyjustified in a free and democratic society. [73] Given that the burden is on the Crown to establish that the infringement is justified under s. 1 of the Charter, I conclude that ithas not been established that the infringement is a reasonable limit within the meaning of s. 1 of the Charter.

What is the appropriate remedy? [74] The applicant seeks a declaration that ss. 2 and 672.23(1) of the Criminal Code are unconstitutional. The applicant submits that

ss. 2 and 672.23(1) should be declared of no force and effect, pursuant to s. 52(1) of the Constitution Act. Alternatively, the applicantseeks a remedy of reading in language to the statutory provisions such that the fitness provisions would apply to sentencing. [75] Provincial courts are not empowered to make formal declarations that a law is of no force and effect pursuant to s. 52(1) of theConstitution Act. However, a provincial court has the authority to determine the constitutionality of a law and provide an appropriateconstitutional remedy to the case that is before the court: R. v.

Lloyd, 2016 SCC 13, at para. 15. [76] Apart from the absence of this Court’s authority to formally declare legislation to be of no force and effect, it would beinappropriate to strike down the legislation because doing so would not provide any meaningful remedy to the applicant. It wouldsimply deprive other accused of the fitness provisions in the Criminal Code. [77] In a constitutional challenge, a court must determine the extent to which a law is inconsistent with the Charter and grant aremedy reflective of the inconsistency: Ontario (Attorney General) v. G, 2020 SCC 38, at para. 72.

Remedies should be tailored to thescope of the infringement, allowing constitutionally compliant aspects of unconstitutional legislation to be preserved: Schachter v.Canada, (SCC), [1992] 2 S.C.R. 679, at 700; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493, at paras.149-150. [78] To ensure that persons are entitled to the benefit of democratically-enacted legislation that is otherwise constitutional, remediesof reading down, reading in, and severance, tailored to the breadth of the violation, should be employed so that the constitutional aspectsof legislation are preserved: Ontario (Attorney General) v.

G, at para. 112. [79] The remedy of “reading in” involves adding new words to a provision to broaden its reach. Reading in has generally been used toextend the application of a statute to a category of persons who are wrongly excluded: Ontario (Attorney General) v. G, at para. 113;Vriend v. Alberta, at para. 179. The goal of reading in is to remedy the constitutional defect but preserve laws that are substantiallyconstitutional but peripherally problematic: R. v.

Sharpe, 2001 SCC 2 , [2001] 1 SCR 45, at para. 111. [80] A provincial court has the authority to read in or read down statutory language to remedy a constitutional defect: R. v. Jaycox,2011 BCSC 662, at paras. 21-23. However, the remedy is not one of general application but only applies to the claimant before thecourt. [81] In my view, the appropriate remedy is reading in language to include mental fitness at sentencing in

Part XX.1 of the CriminalCode. A reading in remedy is consistent with the guiding principles of respect for the role of Parliament and respect for the purposes ofthe Charter. The legislation is designed to ensure an accused is mentally fit to stand trial, but wrongly excludes accused persons at thesentencing stage of the proceedings. The constitutional defect arises from under-inclusion, as persons who become unfit at thesentencing stage are not included in the regime for dealing with unfit accused. The problem can be remedied by reading in language tothe relevant provisions of the Criminal Code so that the fitness provisions apply to sentencing proceedings. [82]

Part XX.1 is a comprehensive and established system for dealing with persons who are unfit to stand trial. A reading in remedywould minimize interference with the otherwise legitimate and constitutional fitness regime. It would preserve the legislation but allowfor the wrongly-excluded class of persons to be brought within the regime. [83] As noted above, other courts have adopted a remedy of reading in wording to incorporate sentencing proceedings within thefitness provisions of the Criminal Code: see R. v. Balliram, supra at para. 48 and R. v.

Morrison, supra at para. 47. [84] There is a concern with respect to the extent to which the existing provisions of the Criminal Code must be revised by reading inlanguage in order to incorporate the post-verdict stage of the proceedings. The existing fitness regime was designed to apply to trial andnot sentencing. Not all of the fitness provisions may be easily applied to sentencing proceedings. [85] For example, under s. 672.26, where an accused has elected to be tried by a judge and jury, the issue of fitness is to be tried bythe jury.

However, as the jury is discharged once a verdict is reached, either the same jury would have to be re-empanelled to try theissue of fitness or a new jury would have to be empanelled. While this Court does not have jurisdiction over jury trials, this is anexample of the

interpretation challenges that can arise from a reading in remedy. [86] A further

interpretation issue arises in s. 672.33, which requires that the court must hold an inquiry every two years after anaccused is found unfit, in order to determine if there still exists a prima facie case against the accused. Such an inquiry is not warrantedafter an accused has been lawfully convicted. [87] While certain issues of

interpretation may arise from a reading in remedy, it is my view that reading in remains the mostappropriate s. 52 remedy. For the most part, the existing provisions can be readily applied to the post-verdict stage of the proceedings. Any

interpretation issues can be resolved in the context that the accused has been convicted and is at the sentencing stage of theproceedings. [88] I conclude that the infringement of s. 7 can be remedied by reading in “or sentence imposed” after the words “verdict is rendered”in the definition of unfitness in s. 2. With respect to

section 672.23, the words “or sentence imposed” should be read in after the words“verdict is rendered”. Common Law Authority [89] The defence submits that in addition to the Charter remedy, there is common law authority for the court to order a fitnesshearing at the sentencing stage. [90] The Crown does not agree that there is common law authority for the court to conduct a fitness hearing at sentencing. [91] There is common law authority holding that an accused must be mentally fit in order to be sentenced, but any common law

authority to make orders arising from that requirement is uncertain. The Ontario Court of Appeal confirmed in R. v. Walker , supra at para. 54 that a trial judge has a duty to inquire into the fitness of the accused if there are grounds to believe the accused is unfit. The sentencing judge must hold off on proceeding with the sentencing until the issue of fitness has been determined.

However, the court did not resolve the question of the jurisdictional basis for holding a fitness hearing, and accordingly did not consider whether the jurisdiction arises from the common law or the Charter . [ 92 ] There are no decisions from this province dealing with the question of whether there is common law authority to hold a fitness hearing at sentencing. The applicant cited authority from other jurisdictions. For example, in R. v. Nehass , [2016] Y.J. No. 151 , the court concluded that there is common law jurisdiction to order a fitness assessment at sentencing.

However, in making this order the court also relied upon the inherent jurisdiction of a superior court to ensure fairness in the proceedings. It is well-established that the provincial court is not a court of inherent jurisdiction: R. v. Lloyd , supra at para. 15 . [ 93 ] If there is a common law authority for this Court to make orders dealing with a mentally unfit offender at sentencing, the scope of the common law authority is unclear. Does this Court have the common law authority to order psychiatric services to conduct an assessment or refer an accused to the Review Board for a disposition hearing?

Does the court have the common law authority to order that an accused undergo treatment, as found in s. 672.58 of the Criminal Code ? These questions involve significant issues of criminal law policy impacting Charter -protected rights. [ 94 ] One of the concerns with relying upon an undefined and uncertain common law authority is that it would leave a mentally unfit offender outside the statutory scheme in

Part XX.1 of the Criminal Code . There is an elaborate regime in the Criminal Code for dealing with a mentally unfit accused, including making orders for assessments and treatment. An unfit accused may be referred to a Review Board for a disposition hearing. The fitness regime in the Criminal Code is an established and comprehensive apparatus for an accused to be dealt with in the event that they are unfit to stand trial. In my view, one of the difficulties with relying upon any common law jurisdiction that may exist is that it does not incorporate the applicant within the regime in

Part XX.1 of the Criminal Code . [ 95 ] In contrast, the remedy that has been ordered pursuant to the Charter incorporates the applicant into the fitness provisions of the Criminal Code . [ 96 ] As a remedy has been ordered pursuant to the Charter , in my view it is unnecessary to resolve the question of whether there is a common law authority to conduct a fitness hearing at sentencing. Conclusion [ 97 ] Sections 2 and 672.23(1) infringe s. 7 of the Charter , and the infringement is not justified under s. 1 .

Pursuant to s. 52(1), the remedy applied to the applicant’s proceeding is that the words “or sentence imposed” are read in after the words “verdict is rendered” in the definition of unfitness in s. 2 . With respect to

section 672.23(1) , the words “or sentence imposed” are read in after the words “verdict is rendered”. _____________________________ The Honourable Judge J. Campbell Provincial Court of British Columbia [i] Negron v. New York , 434 F.2d 386 (1970) at 389. (Para. 54) [ii] See for example, Richard Schneider, “Fitness to be Sentenced” (1999), 41 C.L.Q. 261 and Allan Manson, “Fitness to be Sentenced: a historical, comparative and practical review”, International Journal of Law and Psychiatry, 29 (2006) 262-280 (Para. 62)