2017 QCCA 933, 2017 QCCA 933

R. c. R.L. 2017 QCCA 933 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006286-163 (500-01-046206-105, 500-36-008237-169) MINUTES OF THE HEARING DATE: June 9, 2017 CORAM: THE HONOURABLE NICHOLAS KASIRER , J.A. MARTIN VAUCLAIR , J.A. MARIE-JOSÉE HOGUE , J.A. APPELLANT COUNSEL HER MAJESTY THE QUEEN Mtre CHRISTIAN JARRY (Directeur des poursuites criminelles et pénales) RESPONDENT COUNSEL R. L.

Mtre GABRIEL BABINEAU ( Lepage Carette S.N.A. ) On appeal from the dismissal of an Application for the issuance of a writ of prohibition, made on November 15 th , 2016, by the Honourable Madam Justice Catherine Mandeville, of the Superior Court, sitting in and for the district of Montreal.

DESCRIPTION : Assessment order – Fitness to stand trial – Judicial interim release – Writ of prohibition dismissed Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 12: 23 Commencement of the hearing Questions by the Court to the parties. Answer by Mtre Gabriel Babineau. 12 :26 Submissions by Mtre Christian Jarry. 13: 12 Suspension. 14:17 Resumption of the hearing. Submissions by Mtre Babineau. 14:51 Rebuttal by Mtre Jarry. 15:02 Rejoinder by Mtre Babineau. 15:03 Recess. 15:35 Resumption of the hearing.

BY THE COURT: read by the Honourable Justice Nicholas Kasirer, J.A. – see page 3. 15:36 Conclusion of the hearing. Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] For reasons to follow, the Court : [ 2 ] ALLOWS the appeal. [ 3 ] QUASHES the judgment of Mandeville J. and, proceeding to render the judgment that should have been rendered: [ 4 ] PROHIBITS Weitzman J. of the Court of Quebec from proceeding with a bail hearing at any time before the Respondent is found fit to stand trial, by reason of lack of jurisdiction on the matter. NICHOLAS KASIRER, J.A.

MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. R. c. R.L. 2017 QCCA 933 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006286-163 (500-01-046206-105, 500-36-008237-169) DATE: July 4, 2017 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. HER MAJESTY THE QUEEN APPELLANT – Petitioner v. R. L.

RESPONDENT – Respondent REASONS FOR JUDGMENT RENDERED AT THE HEARING OF JUNE 9, 2017 [1] On June 9, 2017, the Court rendered the following judgment for this appeal: [1] For reasons to follow, the Court: [2] ALLOWS the appeal; [3] QUASHES the judgment of Mandeville J. and, proceeding to render the judgment that should have been rendered: [4] PROHIBITS Weitzman J. of the Court of Quebec from proceeding with a bail hearing at any time before the Respondent is found fit to stand trial, by reason of lack of jurisdiction on the matter. [2] These are the announced reasons for judgment. *** [3] The Crown has appealed a judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Catherine Mandeville), rendered on November 15, 2016, which dismissed its application for the issuance of a writ of prohibition to prevent Weitzman, J. of the Court of Quebec from conducting a bail hearing in respect of R.

L., on the basis of lack of jurisdiction. Accused of two counts of sexual assault and detailed in jail, the respondent was declared unfit to stand trial in 2011 and has been detained in one way or another since that time. *** [4] In 2010, the charges were laid against the respondent. He was a known sex-offender at the time. That same year, a judge of the Court of Quebec found him to be unfit to stand trial and rendered a verdict to that effect. The respondent was accordingly transferred to the jurisdiction of the Review Board.

In December 2011, the Review Board confirmed the respondent’s unfitness to stand trial and he was placed under the care of a psychiatrist. The record on appeal and pleadings by counsel shed little light on this period. We do know that in September 2013, a psychiatrist gave an opinion that the respondent had become fit to stand trial. Pursuant to sections 672.48 and

672.81 of the Criminal Code , the Review Board referred the respondent to Court of Quebec to decide the issue. [ 5 ] For reasons not satisfactorily explained by either side on appeal, the respondent is presently detained in a regular detention center and it has yet to be determined if he is now fit to stand trial. [ 6 ] Beginning on September 30, 2013, Weitzman J. of the Court of Quebec presided over the new fitness hearing. From that date to November 17, 2017, according to the appellant, there were 26 appearances before the judge.

Despite the various challenges, the appellant’s evidence on the fitness issue is now almost complete. The respondent may wish to answer. At this stage of the proceedings, however, the respondent is still presumed to be unfit to stand trial, close to four years after a psychiatrist's report to the contrary. [ 7 ] At one point in September 2016, it seems that successive counsel for the respondent directed their efforts to obtain his bail, apparently with no mandate to terminate the fitness hearing. The judge appears to have allowed the parties to proceed in this manner.

The appellant objected to the jurisdiction of the Court of Quebec to hold a bail hearing for an unfit person and made an application for a writ of prohibition. In January 2017, counsel for the respondent filed a motion to stay the proceedings. Counsel informed the Court that this motion is under reserve. A further motion for a writ of prohibition has been filed given that a second bail hearing was convened before Weitzman J. in another pending file. *** [ 8 ] In the judgment under appeal, the motion judge of the Superior Court dismissed the Crown’s application for a writ of prohibition.

She rejected the argument that a person declared unfit to stand trial must be considered to be unfit at all stages of criminal proceedings, including a bail hearing. In the motion judge’s view, when interpreted in light of the constitutional right to reasonable bail, the Criminal Code does provide the authority for a provincial court judge to grant or refuse an application for bail to an unfit person pursuant to

section 515 Cr.C . [ 9 ] The motion judge began her reasons by observing that the right to reasonable bail protected by

section 11(

e) of the Canadian Charter of Rights and Freedoms is grounded in the idea that every person awaiting trial, whether fit or unfit, has the right not to be deprived of his or her liberty unless just cause is shown. She noted that nothing in the Criminal Code provides for a different forum for a bail hearing held for a fit person as opposed to an unfit person. In this case, she wrote, the appropriate setting for a bail hearing is before a judge of the Court of Quebec. [ 10 ] For the motion judge, the definition of “unfit to stand trial / inaptitude à subir son procès” in

section 2 Cr.C . refers to a person unfit to conduct a defence at trial before a verdict is rendered. She observed that the respondent is not before the Court of Quebec in order “to conduct a defence on any accusation for which a verdict will have to be rendered”.

Instead, wrote the motion judge, [24] The actual proceedings before Justice Weitzman relate to his fitness to stand trial, he is not defending himself from any accusation and it remains to be decided whether he will eventually have to conduct a defence in a criminal proceeding before a verdict is to be rendered. [24] [ sic ] Whether he will have to stand trial so that a verdict may be entered is precisely the question Justice Weitzman has to answer. [ 11 ] The judge concluded that the Criminal Code should be read as allowing a bail hearing at any time for an unfit accused except when he or she is under an assessment order. [ 12 ] As for the appellant’s argument that an unfit accused would not be able to propose valid undertakings or enter a recognizance, the motion judge wrote: [30] As for the argument that ban unfit accused would not be able to propose valid undertakings or enter a recognizance, this is not a jurisdictional issue which should be decided on an application for prohibition.

This Court is asked to decide whether or not the Court of Quebec has jurisdiction over the accused to conduct a bail hearing and not whether any or all of the conditions for a release as proposed by the accused are reasonable and sufficient to justify granting bail. [ 13 ] She concluded that the Court of Quebec had jurisdiction to decide bail and dismissed the motion for the issuance of the writ of prohibition. *** [ 14 ] The sole issue on appeal is whether a provincial court judge has jurisdiction to conduct a bail hearing, pursuant to

section 515 Cr.C ., for an accused who has been declared unfit to stand trial. *** [ 15 ] The appellant argues that, properly understood, the finding that an accused is “unfit to stand trial” applies not just at trial but from the beginning to the end of the criminal process. At a bail hearing, an accused runs the risk of being denied bail and must be in a position to understand that eventuality and to conduct a defence accordingly. If the accused undergoes a bail hearing while unfit to conduct a defence because of a mental disorder, he or she runs a serious risk of being treated unfairly.

As a result, a bail hearing for a person declared unfit for trial cannot be held, and nothing in the law provides jurisdiction for a provincial court judge to do otherwise. [ 16 ] The appellant argues further that the motion judge made two principal errors in refusing to issue the writ of prohibition: first, she erred in her

interpretation of the expression “unfit to stand trial” as defined in the Criminal Code ; and, second, she erred in finding that the respondent has a constitutional right to bail, pursuant to

section 11(

e) of the Charter , which supports the view that the provincial judge has the authority to proceed with a bail hearing in the circumstances. [ 17 ] These arguments shall be considered in turn.

I The meaning and scope of the expression “unfit to stand trial” [18] The appellant submits that the motion judge misinterpreted the expression “unfit to stand trial” in

section 2 Cr.C. By decidingthat unfitness to stand trial is only concerned with the ability of the accused to conduct a defence at trial, before a verdict is rendered, shewrongly decided that fitness is not an issue at the time of bail. [19] For the appellant, fitness to stand trial requires that a person have the cognitive capacity to understand the criminal process andcommunicate with counsel. The definition in

section 2 Cr.C. indicates that criminal process is not limited to a trial but, instead, bears on“any stage of the proceedings”. Subsection 672.23(1) Cr.C., says the appellant, is to the same effect. By deciding that a bail hearing canbe held for a person declared unfit to stand trial, the judge misinterpreted the law by failing to understand that the ability to conduct adefence can be of signal important at stages of the proceedings other than the trial proper. [20] The respondent answers that the motion judge made no error in determining that bail should be available in the present case. Hesubmits that in

section 672.17 Cr.C., which deals with when an assessment order takes precedence over a bail hearing, Parliament directsonly that bail is not available when an unfit accused is under an assessment order “made by a court / rendue par le tribunal”. Pointing to aparliamentary

summary of the bill tabled when

section 672.17 was enacted in its present form, the respondent argues that when a ReviewBoard has made an assessment order, as opposed to a court, the accused can still apply for judicial interim release. Similarly, in section672.121 Cr.C., which concerns the jurisdiction of the Review Board to order an assessment, Parliament does not preclude that a bailhearing be held for an unfit accused. [21] Moreover, adds the respondent, the motion judge made no mistake in her

interpretation of the definition of “unfit to stand trial”in

section 2 Cr.C. The text of the Code provides, as the motion judge decided, that unfitness relates only to the inability to “conduct adefence / d’assumer sa défense”. The respondent was not before the provincial court judge to conduct a defence on any charge for whicha verdict will be rendered at a trial but merely before the court for a fitness hearing. A bail hearing, says the respondent, is not a processthat will have an impact on guilt or innocence and thus is not concerned with conducting a defence.

Nothing in the Criminal Code, heargues, excludes the jurisdiction of the provincial court judge to hold a bail hearing in the circumstances. [22] With great respect, the Court is of the view that the motion judge misinterpreted

section 2 Cr.C. This error had an overridingeffect on her decision to deny the issuance of the writ. [23] Properly construed, a person is unfit to stand trial when he or she is unable to conduct a defence “at any stage of theproceedings”, extending from arraignment through the trial to sentence, where those proceedings are adversarial in character and subjectto contestation which would require the person to respond to the state. In R. v.

Demers, 2004 SCC 46 , [2004] 2 SCR 489, para.21, the Supreme Court endorsed the view that “fitness rules were established to ensure that a prosecution not proceed where an accusedis not able to adequately respond to the state”. Fitness is plainly not a concern limited to the trial, stricto sensu. A person accused or evenconvicted of a crime must be in a position to respond to the state otherwise than at trial. [24] The ability to conduct a defence, to which

section 2 alludes, is indeed relevant at many other stages of the criminal processwhere an accused is required to conduct a defence in an adversarial setting, or to communicate with counsel to that end. The reason isplain: where a person is declared unfit for trial, there is a serious risk that he or she will not understand the nature of the proceedings andthe extent of the jeopardy that he or she faces. [25] This basic principle cannot be limited to the trial as such.

There are circumstances, prior to and indeed after the trial, in which aperson accused or convicted is required to conduct a defence in an adversarial setting. These include the arraignment where the accusedexercises his or her right, in respect of designated offences, to elect the mode of trial. In R. v. Mitchell,

(1997) C.C.C. (3d) 139, para. 27et seq., the Court of Appeal for Ontario held that at the pre-trial stages of arraignment and election, an accused must be aware of thecharges he or she faces.

An unfit accused, who perforce does not understand the nature and object of an election and is unable tocommunicate effectively with counsel, cannot fairly participate in this stage of the process, even though it is not part of a trial in which averdict is rendered. [26] At the preliminary inquiry stage, as well, an unfit accused would be ill-equipped to conduct the defence required in order torespond to the state even though the preliminary inquiry is not a trial where a verdict is rendered.

At a preliminary inquiry, an accusedmust understand, for example, the right to remain silent and that any incriminating statement made at that stage could be used againsthim or her at trial. In R. v. Whittle, (SCC), [1994] 2 SCR 914, 934, 939. the Supreme Court decided that a person whodoes not have the cognitive capacity to be fit to stand trial may well not have the mental ability to understand the choice whether or notto give evidence at a preliminary hearing. [27] The same may be said for sentencing.

While not part of the trial, it would be unfair and contrary to the interests of justice torequire a person who was fit during the trial but who subsequently became unfit to participate in a sentence hearing: see R. v. Nehass,2017 YKSC 4, para. 23. Indeed as a matter of constitutional law, the deprivation of liberty that may result from the sentencing of an unfitperson is unlikely to accord with the principles of fundamental justice. [28] In light of the foregoing, the reference to a person unable to conduct a defence at “any stage of the proceedings” in

section 2Cr.C. should be interpreted to include the bail hearing. The process of judicial interim release set forth in

section 515 Cr.C. requires, inmost cases, that the accused answer to the state in an adversarial setting such that it would be fundamentally unfair to subject an unfitperson to a bail hearing. In some other cases, when the burden is reversed pursuant to subsection 515(6) Cr.C., it is that unfit person whomust present a case for his release. Parliament has provided, for example, that an accused must be present at his or her bail hearing:subsections 515(2.2) and 515 (2.3), unless consent is given.

An unfit person cannot give such consent and, even if physically present,would not be present with the requisite operating mind. He or she would not be in a position to understand the caution against self-incrimination spoken to in paragraph 518(1)(

b) Cr.C. An unfit person would not understand the nature of the hearing on interim releaseand would not be able to communicate effectively with counsel in this often charged, adversarial setting. [29] Importantly, Parliament has directed at

section 515 Cr.C. that “a person charged with an offence / un prévenu inculpé d’uneinfraction” may be released after a bail hearing subject to conditions contained either in an undertaking or a recognizance. An unfit

person is not a person charged with an offence when a verdict confirms he or she is unfit to stand trial. That person further cannot understand the commitment he or she makes before a judge to respect conditions for release. There is reason to think that an unfit person would not have the requisite mental element for the offence of failing to respect conditions of release in the event that those conditions were not respected. It bears noting that, contrary to

section 515, the rules on disposition made by the Review Board in

section 672.54 Cr.C . make no reference to either an undertaking or a recognizance. The disposition of a Review Board can order the discharge, not the release, of an unfit person, and the Review Board cannot order conditions of release that would be subject to criminal sanction if not respected. [ 30 ] The respondent’s answer to this problem – that a third person could make this commitment to hold the unfit accused to conditions for bail – is inadequate. If the accused failed to respect the conditions of bail, charges could be laid against him or her, whether or not a third party made undertakings on the accused’s behalf. This would be patently unfair to an unfit person. [ 31 ] The

interpretation advanced by the respondent for

Part XX.1 of the Criminal Code is untenable. A bail hearing cannot be held while an assessment is being conducted to see if an accused person is unfit, even though at that time a person is presumed to be fit: see sections 672.17 and 672.22 Cr.C. Moreover, an assessment can be ordered where there exist reasonable grounds to believe that the accused may be unfit, and no bail hearing can be held at this time:

section 672.11. The respondent acknowledges that Parliament intended to deny a bail hearing to a person potentially unfit in these circumstances because of possible unfairness but argues that it intended to allow a bail hearing where an accused, like in the present case, has been declared unfit. This

interpretation of the Code is not just illogical, it would lead to circumstances where unfit persons would be treated unfairly before the courts. [ 32 ] It would thus be fundamentally unfair to conduct a bail hearing for a person declared unfit to stand trial. To the extent that R. v. Southward , [2003] O.J. 590 (Ont. S.C.J.) decided otherwise, this Court declines to follow it.

We are not satisfied that there are “various methods by which the accused’s lack of capacity can be addressed for the appropriate interim release order […]”, as the judge wrote in paragraph 9 of that case, which could neutralize the manifest unfairness that would arise if unfit persons were called to participate in bail hearings. [ 33 ] We note further that

Part XX.1 of the Criminal Code provides for mandatory assistance of counsel for an unfit person or when reasonable grounds exist to believe a person is unfit, as well as the payment of fees and disbursements by the Attorney General if the person is not granted legal aid: see 672.24 and 672.5 Cr.C . This is an indication of a legislative choice to treat these persons differently because of their vulnerability and the jeopardy they face. There are no equivalent rules in the 515 Cr.C. regime, because it was not meant to address the situation of unfit persons. II The right to reasonable bail under

section 11(

e) of the Charter [ 34 ] The motion judge relied on the right to reasonable bail as set forth in

section 11(

e) of the Charter in interpreting the relevant sections pertaining to bail. [ 35 ] Respectfully stated, the better view is that

section 11 (

e) has no direct application to the respondent’s situation insofar as he is not, as a person declared unfit to stand trial, a person “charged with an offence / [t]out inculpé” within the meaning

section 11 . [ 36 ] Once the verdict of unfitness was rendered in respect of the respondent, the accused is remitted to the jurisdiction of the Review Board who makes a disposition pursuant to

section 672.54 Cr.C . [ 37 ] Until such time as the Review Board makes a finding of fitness that is confirmed by a court, no trial will take place on the charges. In some cases, there will never be a trial: see R. v. Demers , supra . The unfit person is not immediately in jeopardy of conviction and it has not been definitively determined that he or she will ever face charges. [ 38 ] This is not to say that an unfit person has no liberty interest guaranteed by law. The respondent cannot be deprived of his liberty except in a manner that accords with the principles of fundamental justice, as established by

section 7 of the Charter : R. v. Demers , supra . There is no reason, for example, why this right could not be invoked to impugn the basis of detention ordered for an unfit person by the Review Board. [ 39 ] That said, contrary to what the motion judge decided,

section 11 of the Charter does not justify the

interpretation of

section 2 Cr.C . advanced by the respondent and lends no support to her conclusion that the writ of prohibition should not be issued. [ 40 ] Finally, it should be recalled that justice of the peace cannot hold a bail hearing without statutory authority. In other words, a justice of the peace does not have inherent jurisdiction to decide bail or to adapt an existing regime to a situation for which it was not designed. *** [ 41 ] If bail is not available to the respondent as an unfit person, what, can be done to address his circumstances in the present case?

Although this question is not squarely before us, we allow ourselves the following observations without in any way deciding the matter. [ 42 ] The Court is fully mindful of the incongruity of the present circumstances in which the respondent has been detained, by his own calculation, for more than six years. This is, in his view, a period longer than that for which he would have been detained had he been tried and found guilty of the offences for which he was initially charged.

The Court recognizes, further, that the respondent is currently detained at the Bordeaux Jail, rather than in hospital or other therapeutic setting, and takes most seriously the submission of counsel that in a detention centre he is vulnerable to unfair treatment. [ 43 ] The Court observes further that the parties disagree as to the reasons for this long period of detention and for some of the postponements of the fitness hearing. [ 44 ] At the hearing on appeal, the Court asked respondent’s counsel why he had not sought the issuance of a writ of habeas corpus

in Superior Court, framed either as an extraordinary remedy based on a demonstration that an alleged illegal detention or, alternatively, asa constitutional remedy potentially available under

section 10(

c) of the Charter. [45] Beyond a brief comment that counsel was unsure that the detention is illegal, no satisfactory explanation was offered. [46] In R. v. Gamble, (SCC), [1988] 2 SCR 595 and then in R. v. Sarson, (SCC), [1996] 2 SCR223 the Supreme Court commented on the availability of habeas corpus based on the infringement of a Charter right. In the latter case,recalling Gamble, Sopinka J. wrote for the Court, at para. 40, that where habeas corpus is “sought as a Charter remedy (rather thanmerely under the common law), the Court must adopt a purposive approach in choosing whether or not to issue the writ”.

When aCharter right is at stake, Courts should not deny habeas corpus by adopting an overly rigid or technical

interpretation of the relevantrules. [47] Absent a statutory authority to deal with what is said to be an illegal or arbitrary restriction of the respondent’s liberty, onemight envisage that route. [48] The appellant suggested the respondent could have asked the Superior Court for the issuance of a writ of procedendo, so thathis application to be declared fit for trial by the provincial court judge be heard by preference and with all due dispatch. Respectfullystated, the respondent’s answer – that he perceived there to be a risk that the judge would be on vacation – is unsatisfactory.

But it bearsnoting that if a writ of mandamus or procedendo is available to have the hearing on the fitness issue continued, these writs aretheoretically open to the prosecution as well. Again, it is difficult to understand how and why the parties governed themselves in thisparticular case. But to repeat, this issue is not before the Court on this appeal. *** [49] That said, and for the foregoing reasons, the Court allowed the appeal at the hearing, quashed the judgment of the SuperiorCourt and ordered the issuance of a writ of probation alluded to above. NICHOLAS KASIRER, J.A. MARTIN VAUCLAIR, J.A.

MARIE-JOSÉE HOGUE, J.A. Mtre Christian JarryDirector of Criminal and Penal ProsecutionsFor the Appellant Mtre Gabriel BabineauLepage CaretteFor the Respondent Date of hearing: June 9, 2017