2021 QCCQ 300, 2021 QCCQ 300

R. c. T.C. 2021 QCCQ 300 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF KUUJJUAQ « Criminal and Penal division » N° : 635-01-018904-202 635-01-019171-207 DATE : January 20, 2021 ______________________________________________________________________ BY THE HONOURABLE PAUL CHEVALIER, J.C.Q. ______________________________________________________________________ LA REINE Plaintiff c. T. C. Accused ______________________________________________________________________ V E R D I C T ______________________________________________________________________ [ 1 ] Upon T. C.'s counsel's request, the Court ordered on July 14, 2020, an assessment of accused under s. 672.11

a) and

b) of the Criminal Code to determine if he is unfit to stand trial and if he was, at the time of the alleged offences, suffering from a mental disorder so as to be exempt from criminal responsibility. [ 2 ] Accused, a 22 years old Inuit, is charged, in file 635-01-018904-202 with sexual interfering with a person under the age of 16 years and with sexually assaulting that person between January 1, 2015 and December 11, 2019, as well as with breaking and entering in a dwelling house between, March 1, 2019 and July 1, 2019.

In file 635-01-019171-207, he is charged with breaking and entering in a dwelling house and with criminally harassing a female person between March 14, 2020 and May 15, 2020. [ 3 ] He was evaluated for these assessments, with the help of an interpreter, for over an hour through video conference, by Dr. David Bloom, a psychiatrist from Douglas Mental Health Institute, on August 17, 2020. His report was filed as Exhibit D-1, and Dr. Bloom testified on December 10, 2020. Accused's background [ 4 ] Mr.

C. has been followed in child psychiatry since his birth and a development delay was observed when he was 18 months old. He had a psychiatric follow-up throughout his childhood which led to diagnoses of language disorder, behavioural disorder, mild intellectual handicap, affective dysregulation disorder, attention deficit disorder and probable autism spectrum disorder. [ 5 ] Considering that Mr. C. would not be able to take care of himself adequately when he would become an adult, Dr.

Larose, his child psychiatrist, filed an application for opening of protective supervision in 2017. [ 6 ] Since accused turned 18, the different follow-ups he had confirm that the diagnoses that had been made before are still topical. He his again followed by a psychiatrist, Dr. Rima Chaala also attached to the Douglas Mental Health Institute, who considered, in June 2020, that he should be assessed by a forensic expert as to his fitness to stand trial on account of his intellectual limitations. Her letter, dated June 18, 2020, was filed as Exhibit D-2. The law [ 7 ]

Section 672.22 of the Criminal Code states that « an accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial ». [ 8 ]

Section 2 of the Criminal Code states that « unfit to stand trial » means 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 or object of the proceedings, (

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

c) communicate with counsel. [ 9 ] The Québec Court of Appeal specified in 1991 that understanding « the nature or purpose of the proceedings » included « the respective roles of the judge, jury and counsel ». [1] [ 10 ] The Supreme Court of Canada stated that to be fit to stand trial, an accused was only required to possess a limited cognitive capacity and said : The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is not in the accused's best interests.

It is not necessary that accused possess analytical ability. [2] [ 11 ] This was reaffirmed by the Québec Court of Appeal who added that it is well established that an accused must be physically and mentally present at his trial. Accused's mental fitness is intrinsically linked to his fundamental right to control his defence and to his right to make a full answer and defence [3] . Dr. Bloom's opinion [ 12 ] Dr.

Bloom has worked at the Douglas Mental Health Institute for almost 40 years and is a psychiatrist specialized in psychoses and intellectual handicap. [ 13 ] He first assessed accused's mental health and intellectual capacity, which led him to make the following diagnoses : intellectual disability mild; autism spectrum disorder level 1; history of attention deficit disorder; behaviour disorder secondary to diagnoses 1 and 2 [4] ; and mental age of a child 9 or 10 years old. [ 14 ] Then, for 10 to 15 minutes, he continued the assessment to give his opinion on accused's fitness to stand trial and concluded that « that Mr.

C. is unfit to stand trial at this point and because of his cognitive difficulties, will remain unfit to stand trial for the foreseeable future » [5] . [ 15 ] His opinion is challenged by the Crown who expresses concern about the reliability of the assessment. [ 16 ] It was the first time Dr. Bloom had to assess together the fitness to stand trial and the criminal responsibility of an accused, moreover an Inuit. Such a « double » assessment is unusual, according to Crown counsel and the witness acknowledges that they are usually ordered separately.

But this Court had, in the past, many occasions to order at the same time both assessments and it was at least considered to be correct by the Ontario Court of Appeal [6] . [ 17 ] Because Dr. Bloom spent more time on making a diagnosis than on assessing the fitness, Crown counsel argues that the expert's opinion on fitness is based more on the diagnosis than on the interview to assess accused's ability to stand trial. [ 18 ] Dr. Bloom testified that he could not base his opinions mainly on the diagnoses that had been previously made.

For the assessments he had to make, he based his opinions on the police reports, on the different follow-ups accused is having in his community with the Social Services, with the nurse, with Dr. Chaala, on accused's previous assessments, on the criminologist's report who met with accused and his mother in their community prior to the August 2020 interview and on the different answers given by accused during the August interview. [ 19 ] To assess an accused's ability to understand different concepts and to be fit to stand trial, it is certainly not useless to evaluate his mental health and his cognitive capacity.

And the witness assured that assessing first the criminal responsibility of accused did not affect his opinion on fitness. [ 20 ] Dr. Bloom was assessing an Inuit and was aware that some cultural differences exist between them and the people living in the south of the Province, and that there can be a lack of comprehension of some "southern" concepts for Inuit people. He has however made in the past at least 400 different assessments for the Tribunal administratif du Québec and for the Review Board, probably around 20 assessments for fitness.

He has been involved with Inuit before, either for treatment or for assessment, having then used an interpreter. The words used when making an assessment for the Review Board are the same than those used for the Criminal Court, therefore he does not figure that there was any kind of problem with the translation, even if accused's mother intervened on a few occasions, but not to answer questions directly put to her son. [ 21 ] The Court does not therefore fear that Dr.

Bloom could have made an opinion based on misinterpreted facts or answers. [ 22 ] Crown counsel suggests that the presence of the mother could have prevented accused from being totally at ease during the interview. This could have prevented the expert from correctly assessing him. Dr. Bloom had been made aware that accused was more comfortable with his mother being alongside, accused's body language confirmed it, and such a presence was not unusual when assessing someone with an intellectual handicap. Without any hesitation, he affirms that It did not affect his conclusions.

The fact that almost all of accused's outbursts occurred when his mother was away confirms as well that accused, when isolated from her, can hardly behave correctly. [ 23 ] Crown counsel blames the witness for not rewording his questions when accused seemed not to be able to answer about the

roles of judges and lawyers. Dr. Bloom, without clearly remembering if he did, specifies that he believes he tried to rephrase questions a couple of times to make sure he was getting the right answers. [ 24 ] With the professionalism and the competence displayed by the witness throughout the years and throughout his testimony, the Court has no hesitation to consider that Dr. Bloom's testimony is reliable. His credibility is unchallenged by the Crown. [ 25 ] The witness's credibility being undisputed and the reliability of his opinion being accepted, is the Court bound to accept Dr.

Bloom's opinion on accused's fitness to stand trial? [ 26 ] Keeping in mind that accused only needs to have a limited cognitive capacity to understand the different concepts necessary to be fit to stand trial, the Court notes that « Mr. C. was unable to describe the role of lawyers, particularly his own lawyer and was not able to describe the function of a judge » [7] . He did not know what his lawyer could do for him, if he could speak to the judge on his behalf, or give advice.

The conclusion, then, is that accused does not understand the nature and the purpose of the proceedings. [ 27 ] When questioned about the charges against him, accused could only vaguely describe them. But being told what the witnesses said, he was able to correct one detail.

Does that mean that he is able to communicate with his lawyer? [ 28 ] The Ontario Court of Appeal wrote : […] the ability to communicate with counsel (for purposes of fitness for trial) […] contemplates the ability to communicate with counsel for the purposes of conducting a defence, considering counsel's advice, and giving instructions with respect to the defence. [8] [ 29 ] Accused's intellectual level is of a child 9 or 10 years of age.

Even though he is not asked to possess an analytical reasoning enabling him to choose to accept counsel's advice or to take a decision that would better serve his interests [9] , Mr. C. certainly does not possess the ability to conduct his defence and therefore to communicate in a suitable and effective manner with his lawyer.

He does not remember, or minimizes, the impact of his actions, and, as child would do, he « accepts that it is not a good idea to go into other people's home without their permission » [10] . [ 30 ] As for his understanding of the possible consequences of the proceedings, he is aware that what he did might send him to jail or that he might be separated from his mother, but he does not understand, on account of his intellectual limitation, that it forms part of the judicial process.

Conclusion [ 31 ] The Court is satisfied on the balance of probabilities by the uncontradicted and accepted evidence adduced by Defence counsel that accused is unfit to stand trial and, on that issue of fitness, the verdict of the Court is therefore that Mr. C. is unfit to stand trial. __________________________________ PAUL CHEVALIER, J.C.Q. Me Joanie Marion For the Crown Me Véronique Leduc Designated counsel for the accused under s. 672.24 Cr. C. Dates d’audience : December, 10 and 11, 2020.