R. v. Penney-Flynn, 2022 NLSC 136

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Penney-Flynn , 2022 NLSC 136 Date : September 7, 2022 Docket : 201904G0005 Her Majesty The Queen v. Herbert Penney-Flynn Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice George L.

Murphy Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: June 22, 2022 Appearances: Trina D. Simms Appearing on behalf of the Crown Shelley A. Senior, Q.C. Appearing on behalf of the Accused Authorities Cited:

CASES CONSIDERED: R. v. Daley, 2019 NBCA 89; R. v. Morrissey, 2007 ONCA 770; and R. v. Taylor (1992), (ON CA), 11 O.R. (3d) 323, 77 C.C.C. (3d) 551 (Ont. C.A.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] This decision deals with whether the Accused is fit to stand trial. Pursuant to s. 672.23(1) of the Criminal Code, R.S.C. 1985,c. C-46, the Court ordered that the issue of the fitness of the Accused to stand trial be tried. This order was made based on an oralapplication by counsel for the Accused supported by a report of Dr.

Hy Bloom, B.A., LL.B., M.D., FRCPC dated December 21, 2021from an Independent Psychiatric Assessment of the Accused. [2] A hearing was held on June 22, 2022 at which time the Court accepted Dr. Bloom as being qualified to give expert evidenceon the question of the fitness of a person to stand trial on the basis of his curriculum vitae and evidence he gave about his qualifications.The Crown did not challenge Dr. Bloom’s expertise. Dr.

Bloom’s report of December 2, 2021 was entered as a consent exhibit at thehearing and he testified on the issue of the fitness of the Accused to stand trial. the law [3] The starting point when examining the issue of fitness to stand trial is found in s. 672.22 of the Criminal Code which provides: Presumption of fitness 672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit tostand trial. [4] In terms of trying the issue of fitness of the Accused, s. 672.23 of the Criminal Code provides: 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 theaccused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue offitness of the accused be tried. Burden of proof

(2) An accused or a prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to standtrial. [5] In this case, it was the Accused via his counsel who applied to the Court asking that the question of fitness be tried. Therefore,the burden of proof lies with the Accused to demonstrate that he is unfit to stand trial.

The burden of proof is to the civil standard, namelythe balance of probabilities. [6] The term unfit to stand trial is defined in s. 2 of the Criminal Code as follows: 2 In this Act 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; [7] The term mental disorder which forms part of the definition of unfit to stand trial is also defined in s. 2 of the Criminal Code: 2 In this Act mental disorder means a disease of the mind; [8] It is based on these Criminal Code provisions and the report of Dr. Bloom dated December 2, 2021 and his testimony at thehearing that I must decide whether the Accused has established that he is unfit to stand trial. I would note that the Crown in itssubmissions after the fitness hearing advised the Court that it did not take issue with Dr.

Bloom’s findings. analysis [9] As can be seen from the definition of unfit to stand trial, there are three particular situations in which, on account of mentaldisorder, a person would be unfit to stand trial. While Dr.

Bloom’s report does not analyze each of these three situations separately, areading of his report indicates that his opinion that the Accused is unfit to stand trial is largely based on difficulties the Accused wouldhave in communicating with his counsel. [10] There are two divergent lines of authorities in this country on exactly what is encompassed in the phrase “communicate withcounsel” in the definition of unfit to stand trial. Richard, C.J.N.B. summarized these divergent lines of authorities at paragraph 2 of thedecision of the New Brunswick Court of Appeal in R. v.

Daley, 2019 NBCA 89: 2 There is a line of cases, based on a Saskatchewan Court of Appeal decision, holding that the ability to communicate with counsel "islimited to an inquiry into whether an accused can recount to his or her counsel the necessary facts relating to the offence in such a waythat counsel can then properly present a defence": R. v. Jobb, 2008 SKCA 156, [2008] S.J. No. 764 (QL), at para. 39. A more prevalentline of cases, based on an Ontario Court of Appeal decision, holds otherwise.

According to these decisions, it is not the accused's abilityto provide a reliable account of the events immediately preceding and surrounding the alleged crime that is the critical issue, but ratherwhether the accused is able, in real time, to "speak with counsel rationally, to understand questions and answer them in an intelligiblefashion, and to make critical decisions on counsel's advice, concerning the offence with which he is charged": R. v. Morrissey, 2007ONCA 770, [2007] O.J.

No. 4340 (QL), at para. 56, quoting the trial judge's charge to the jury, leave to appeal denied, [2008] S.C.C.A.No. 102 (QL). [11] The New Brunswick Court of Appeal in Daley preferred and followed the line of cases based on the Ontario Court of Appealdecision in R. v. Morrissey, 2007 ONCA 770. I too prefer the approach set forth in Morrissey which essentially followed an earlierOntario Court of Appeal decision in R. v. Taylor (1992), (ON CA), 11 O.R. (3d) 323, 77 C.C.C. (3d) 551 (Ont.

C.A.). [12] Blair, J.A. for the court in Morrissey reviewed Taylor and explained the relationship between the “limited cognitive capacitytest” discussed therein and the phrase “communicate with counsel” in s. 2 of the Criminal Code. At paragraph 27, he said: 27 In R. v. Taylor (1992), (ON CA), 11 O.R. (3d) 323, [1992] O.J. No. 2394, 77 C.C.C. (3d) 551 (C.A.), this courtrecognized that the new s. 2 definition "statutorily entrenches the extensive case law in this area" and concluded that to be found fit fortrial an accused must satisfy a "limited cognitive capacity test". This threshold is not high.

Indeed, Taylor has been criticized in someparts of the academic and medical communities for setting the bar too low and allowing some individuals to be found fit when theirability to make necessary decisions about their trial is severely affected by mental illness: see the commentaries collected in Barrett andShandler, Mental Disorder in Canadian Criminal Law (Toronto: Thomson Carswell, 2006), pp. 3-6 to 3-7, fn 15. Nonetheless, the"limited cognitive capacity" test has been accepted across the country and was adopted by the Supreme Court of Canada in R. v.Whittle, (SCC), [1994] 2 S.C.R. 914, [1994] S.C.J.

No. 69, 92 C.C.C. (3d) 11, at pp. 933-34 S.C.R., pp. 25-26 C.C.C. Itrequires only a relatively rudimentary understanding of the judicial process -- sufficient, essentially, to enable the accused to conduct adefence and to instruct counsel in that [page493] regard. It is in that sense that the accused must be able "to communicate with counsel"and relate the facts concerning the offence. [13] Blair, J.A. noted further at paragraph 36 that “. . .

Meaningful presence and meaningful participation at trial, therefore, are thetouchstones of the inquiry into fitness”. [14] In Morrissey, the issue was the relationship between testimonial competence and the ability to communicate with counsel. Indiscussing the distinction at paragraph 39, Blair, J.A. explained what was encompassed in the phrase “communicate with counsel”: 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, supra, at p. 545 C.C.C. -- in language that is still pertinent, albeit pre-Charter, and that was pickedup by the trial judge in 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 his part, he must be physically, intellectually, linguistically and communicatively present and able to partake to the best of his natural ability in his full answer and defence to the charge against him. (Citations omitted; emphasis added) [ 15 ] Therefore, the question I must ask is whether the Accused suffers from a mental disorder and whether on account thereof he is unable to be physically, intellectually, linguistically and communicatively present and able to participate in his trial to the best of his natural ability.

In terms of evidence, I have only the December 2, 2021 report of Dr. Bloom and his testimony at the hearing on which to rely in assessing this question. [ 16 ] Simply because the Crown does not dispute the findings of Dr. Bloom does not automatically mean that the Court must also accept those findings; however, in this case, there is no reason for the Court not to accept his findings. Dr. Bloom is well qualified to conduct psychiatric assessments and, in particular, assessments on the issue of fitness to stand trial.

It is apparent from his report and his evidence that he conducted a thorough assessment of the Accused in this case. [ 17 ] The opinion of Dr. Bloom was that the Accused has a major neurocognitive disorder as well as alcohol use disorder. Dr. Bloom testified that major neurocognitive disorder used to be commonly referred to as dementia. In terms of the fitness issue, Dr. Bloom in his report at pages 31 and 32 said: B. Fitness Issue Mr. Penney-Flynn is an intelligent individual who worked for many years as a teacher and principal.

At baseline, he would presumably have been entirely conversant with the Court process. Many of his answers reflect intact intelligence and knowledge. Mr. Penney-Flynn had an awareness of at least one charge, and while there may have been a measure of defensiveness, and a reality- based disinclination to remember events that are not only inculpatory but shameful, he appears to have a genuine inability to provide a reasonable factual explanation of the events to assist you in representing him.

He has some understanding of Court process, although there were some notable defects in his apparent knowledge of potential outcomes on a conviction. Mr. Penney-Flynn could not convincingly demonstrate that he would have sufficient wherewithal to bring any potential concern about the accuracy of a witness’ testimony that he heard in Court to your attention. Besides, Mr.

Penney-Flynn’s dementia-based limitations and his apathy would likely make him markedly inattentive (due to incapacity and not disinterest) to what was going on in Court, to a degree where he would not be a meaningful participant in his own legal proceedings. He is incapable of sustained retention of information that would allow him to assist you in his defense. You are likely to experience him as minimally responsive to what is going on in Court. He is likely to be (pathologically) disinterested in the proceedings. In my opinion, Mr.

Penney-Flynn is incapable of providing you with instructions, or processing your advice and guidance to the degree required for charges of this gravity. If it were needed, he would not have the ability to testify on his own behalf. There is almost nothing newly learned or heard or otherwise present in his history that Mr. Penney-Flynn would be able to retrieve and communicate with any reliability at all. For the above reasons, and from a psychiatric perspective alone, I conclude that Mr. Penney-Flynn is unfit to stand trial. . . . [ 18 ] Based on the report of Dr.

Bloom and his testimony given at the hearing, I am satisfied that the Accused has established on a balance of probabilities that he suffers from a mental disorder within the meaning of s. 2 of the Criminal Code . Further, I am satisfied that he has established on a balance of probabilities that on account of this particular disorder he is unable to conduct a defence. In particular, I am satisfied that the Accused is unable to communicate with counsel to the extent that he could meaningfully be present and participate in his trial.

Accordingly, I find the Accused to be unfit to stand trial within the meaning of that term in s. 2 of the Criminal

Code . _____________________________ George L. Murphy Justice