2023 QCCA 988, 2023 QCCA 988

Unofficial English Translation of the Judgment of the Court A.C. c. R. 2023 QCCA 988 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUÉBEC No.: 200-10-004002-221 (200-01-205552-163) DATE : July 28, 2023 CORAM: THE HONOURABL E GUY GAGNON, J.A. SUZANNE GAGNÉ, J.A. SOPHIE LAVALLÉE, J.A. A. C. APPLICANT – accused c.

HIS MAJESTY THE KING RESPONDENT – prosecutor JUDGMENT WARNING : An order restricting publication was made at first instance under s. 486.4(1) Cr.C ., prohibiting the publication or transmission in any way of any information that could identify the victim. [ 1 ] The applicant wishes to appeal a ruling on voir dire by a judge of the Court of Québec (the Honourable Hélène Bouillon), who dismissed his application to reopen the hearing to determine his fitness to be sentenced.

He therefore seeks leave to appeal a sentence of 5 years’ imprisonment imposed on June 20, 2022, following his conviction on July 22, 2021, for the sexual assault of a minor. [ 2 ] For the reasons of Gagnon J.A., with which Gagné and Lavallée JJ.A. agree, THE COURT : [ 3 ] GRANTS the application for leave to appeal from the sentence; [ 4 ] ALLOWS the appeal in part; [ 5 ] SETS ASIDE the sentence of 5 years’ imprisonment imposed on the appellant and the various accompanying orders; [ 6 ] ORDERS that the file be returned to first instance for a determination of the appellant’s fitness to be sentenced .

GUY GAGNON, J.A. SUZANNE GAGNÉ, J.A. SOPHIE LAVALLÉE, J.A. Mtre Félix-Antoine T. Doyon LABRECQUE, DOYON AVOCATS For the appellant Mtre Sonia Lapointe DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the respondent Date of hearing: December 9, 2022

REASONS OF GAGNON J.A. WARNING : An order restricting publication was made at first instance under s. 486.4(1) Cr.C ., prohibiting the publication or transmission in any way of any information that could identify the victim. [ 7 ] According to an age-old principle of criminal law drawn from the rules of fundamental justice, “[n]o person can be rightly tried, sentenced or executed while insane”. [1] [ 8 ] In his capacity as an officer of the court, counsel for the applicant A. C. seeks leave to appeal a sentence of 5 years’ imprisonment [2] imposed on his client following his conviction on a charge of sexually assaulting a minor (formerly s. 246.1(1)(

a) Cr.C . ). [3] Counsel wishes to contest the interlocutory decision rendered by a judge of the Court of Québec (the Honourable Hélène Bouillon), who dismissed his application to reopen the hearing to allow evidence on the applicant’s mental condition to be submitted, with a view to obtaining an order to determine his fitness to be sentenced. [4] [ 9 ] It is not necessary to provide additional reasons for my proposal to grant leave to appeal the sentence, other than to say that the application raises an important question of law.

For the remainder of this judgment, therefore, I will assign the applicant the status of appellant. [ 10 ] The power of the judge to order an assessment of the accused to determine the accused’s fitness to stand trial is set out in ss. 672.11 (

a) and 672.23(1) Cr.C . Counsel for the appellant goes so far as to submit that the judge committed an error of law in refusing to reopen the to consider the fitness of his client at the sentencing stage. [ 11 ] The appellant now asks the Court to render the order that should have been rendered at trial and, if appropriate, to allow him to present new evidence in the form of a psychological report intended to establish that he is unfit at the sentencing stage.

A) Ruling on voir dire [ 12 ] The judge dismissed the appellant’s application for four reasons, which can be summarized as follows: - The appellant did not instruct his counsel to present an application to determine his fitness; - The [ translation ] “unofficial” correspondence sent to the judge with the email from counsel on April 11, 2022, did not authorize an ex officio order to have the appellant assessed; - During the trial and in his testimony given as evidence on sentencing, [ translation ] “nothing... allowed [the judge] to doubt the accused’s fitness”; [5] - The Criminal Code provisions in question do not cover the sentencing stage. [ 13 ] She concluded her judgment with this remark: [ translation ] To conclude, the Court would like to say that, if there were any doubt as to the accused’s fitness at the time of, of the trial or during submissions on sentencing , in other words before the file was taken under advisement, the decision might have been different. [6] [Emphasis added.]

B) Procedural background [ 14 ] The procedural background to the application before the judge should be reviewed to properly understand the difficulty raised by this appeal. [ 15 ] After a new trial was ordered by this Court in 2020, [7] the appellant’s second trial was held on May 25, 26, and 28, 2021, after which, on July 22, 2021, the judge convicted him of sexually assaulting a minor. The sentencing hearing was set down for December 14, 2021. [ 16 ] On that day, the prosecution sought a sentence of imprisonment of 5 years.

In the opinion of counsel for the appellant, however, given the facts of the case and his client’s personality, a sentence of 18 months was sufficiently exemplary and deterrent to meet the ends of justice. It will be noted that, during the hearing on December 14, the appellant testified as part of the evidence on sentencing. [ 17 ] At the end of the hearing, the judge informed the parties that she would render her decision on January 13, 2022. Since there was no doubt that a prison sentence would be handed down, the appellant chose to begin serving his sentence on December 14, 2021.

He has been incarcerated ever since.

[ 18 ] For entirely valid reasons, sentencing was postponed to March 2, 2022, and then again to June 21, 2022. In the meantime, on April 7, 2022, counsel for the appellant asked the judge’s assistant for the date the judge would probably be back at her office. He wanted to speak with her about the deterioration in his client’s mental condition. [8] [ 19 ] This request to speak with the judge was explained in an email to the judge dated April 11, with a copy to the prosecutor. Counsel’s email become in a way his application at the source of the ruling on the voir dire that is now being challenged on appeal.

Because of this particularity, and despite the length of the text, I reproduce it here in extenso : [ translation ] Madam Justice, I apologize for my delay in replying. I wanted to speak to Mr. C.’s wife again before making my application official. I did so a few hours ago. Simply put, I ask for authorization to appear again before you so that my client’s fitness to stand trial can be assessed. If my client is found to be fit, I ask that the proceedings be reopened for sentencing submissions. I informed Mtre Dufour a few days (or weeks) ago that I might send you this email. She is copied in this email.

Two PDF documents are attached to this message.

LEGAL BASES FOR THE APPLICATION RELATED TO FITNESS Sections 672.12(1) and 672.23(1) provide respectively: 672.12(1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor. 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 on application of the accused or the prosecutor, that the issue of fitness of the accused be tried.

Section 672.11(

a) provides that a court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine the accused’s fitness to stand trial. In J.M. c. R., 2019 QCCA 1755 at para. 17 , it is written that a court [ translation ] “may render such an order at any stage of the proceedings, even in appeal” (moreover, the Court of Appeal is currently seized of such an application in Fruitier ).

After researching the legal and ethical rules applicable in this situation, which I believe is exceptional, I would like to draw your attention to the following: R. v. Szostak, 2012 ONCA 503 at para. 69 The fitness to stand trial issue [ 69 ] I am also of the view that no question of ineffective assistance of counsel arises because defence counsel raised the question of the appellant's fitness to stand trial. As an officer of the court, counsel was entitled, perhaps even bound, to raise the fitness issue. He could not proceed with the trial of a possibly unfit client unless that issue was dealt with.

Michel Proulx and David Layton, in Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001), at p. 155, deal with the issue as follows: lt may be that, after obtaining expert advice, the lawyer -feels it necessary to launch a fitness hearing and to present evidence. We believe that this drastic step may be justified in limited circumstances. After all, by undertaking the conduct of the case in court, the lawyer is arguably implicitly representing that the accused is fit to stand trial.

Certainly, the lawyer is proceeding on the assumption that the client is exercising some level of decision making authority within the bounds of a workable professional relationship. If the relationship is fractured by reason of real fitness issues, nonetheless proceeding to conduct the trial undermines the client's autonomy and the proper role of counsel. [Emphasis added.] I believe that the following passage is also very relevant to the exceptional situation I am faced with: R. v. Szostak, 2012 ONCA 503 at paras. 60-61 (because I am also thinking of Ferland c.

R., 2020 QCCA 1043 at para. 53 ). lneffective assistance of counsel [60] The appellant's submissions about ineffective assistance of counsel centre on his trial counsel's actions in making the appellant's mental state an issue in the proceedings. The appellant submits that his trial counsel acted without instructions in putting his mental state in issue even before the trial began and again at the end of the trial when counsel sought a s. 672.11 assessment. Counsel should have applied to the trial judge to remove himself from the record when the appellant sought to change counsel.

Finally, counsel should have sought a mistrial when he received explicit instructions not to raise the NCRMD defence. Counsel's actions resulted in a miscarriage of justice since it is clear that, but for those actions, NCRMD would never have been an issue in the case. [Emphasis added.) Stated simply, as I write these lines, I am faced with the following situation. On the one hand, considering in particular my discussions with Mr. C. (without revealing the contents thereof for reasons of solicitor-client privilege), I have the firm conviction that my client’s

mental state must be assessed. On the other hand, I have not been instructed to present this application to you. If I must withdraw from the file, I will do so. I am also guided by the following passage from Ferland c. R., 2020 QCCA 1043 at para. 59 : [ translation ] [59] The judge’s obligation under subsection 672.24(1) Cr. C . to assign counsel to the accused even if the accused does not wish it constitutes an exception to the principle that everyone is free to choose whether to be represented by counsel before a court.[36] The reason is easy to explain.

Because there are reasonable grounds to believe that evidence concerning the accused’s mental condition is necessary to determine the accused’s fitness to stand trial – these reasons having themselves justified the order for assessment -- the order for representation by counsel seeks to ensure respect for the accused’s fundamental rights and procedural fairness . Here is what the Court of Appeal of Yukon wrote on the subject:[37] [40]

Section 672.24 is a mandatory order to appoint counsel for a person who may be extremely vulnerable. The

section applies even when the person does not want counsel's assistance. This is clearly because someone suffering from a mental disorder may not understand the importance of having a lawyer help and guide him or her through the legal system . Further, if the person is found to be unfit, the Crown has an obligation to return the accused to court every two years to ensure they still have a prima facie case: s. 672.33. The accused is entitled to apply to have such a hearing accelerated on the filing of written materials.

The assistance of counsel is essential to ensure the fairness of this process. [Emphasis added.] I will conclude by simply stating the following. I am very worried, and I would feel bad and irresponsible if I did not inform you of the new facts that characterize Mr. C.’s mental condition. On a human level, I believe I have a duty to write you this email. The reasonable grounds supporting my application are in particular the following:

(1) I am firmly convinced that my client’s mental condition must be assessed. According to my notes, I spoke with Mr. C. on January 11, February 23, March 21, and March 30, 2022. According to my observations, my client’s mental condition has been continuously declining since February 23.

(2) Without revealing the contents of the justification (solicitor-client privilege), a correctional officer from the Baie-Comeau Facility (Ms. Boulianne) confirmed to me on March 23, 2022, that the situation was very serious and strongly suggested that I [ translation ] “do something”.

(3) L. Co. has confirmed to me that her discussions with her husband resemble the ones he has with me. L. Co. took handwritten notes at my request. As I write these lines, I have in my possession the handwritten notes relating to my client’s incarceration in Baie-Comeau. These notes are attached to this email. Mr. C. returned to the city of Québec, in my opinion, around March 19, 2022. Moreover, L. Co. told me this evening of April 11, 2022, that a nurse from the Québec facility told her that Mr. C. was seen by a psychiatrist and that it turns out he is suffering from dementia.

LEGAL BASES FOR THE APPLICATION TO REOPEN THE HEARING Insofar as you accept the application respecting fitness, I submit the following. Being aware that the [ translation ] “notion of unfit to stand trial has a relatively low threshold”: Ferland c. R., 2020 QCCA 1043 at para. 51 , I would like to adduce evidence as to Mr. C.’s mental condition, even at this stage.

I base my application on Traité général de preuve et de procédure pénales 2021, 28th edition, at paras. 32.32 and 32.33 (the excerpt is attached to this email). [ translation ] 32.32 As for the defence, it may present a motion to reopen at any time before sentence is passed. 109 That being the case, reopening the trial after the verdict is entered is “a way of proceeding [ that] is very unusual and not advisable”. 110 In theory, a court will do so only in the clearest of cases. 111 Nevertheless, it is reasonable that, faced with important evidence going to the ultimate outcome, the judge should allow the hearing to be reopened.112 After sentencing, the judge is functus officio , such that an appeal is the only possible recourse.113 If a verdict has not been rendered, the judge must, if warranted by the interests of the accused and the prosecution suffers no prejudice as a result , allow the hearing to be reopened, no matter how late in the proceeding it may be.114 32.33 If the verdict has been rendered, the court must apply stricter criteria similar to those defined by the Supreme Court in matters of the admissibility of evidence on appeal115 and ensure that it is not an attempt to circumvent the effects of a tactical decision made during the hearing.116 Moreover, the judge may, if he or she believes it appropriate, declare a mistrial.117 In the case of a verdict rendered by jury, such an application is inadmissible once the judge has recorded the verdict.118 In light of the foregoing, I confirm that, as I write these lines, I am of the opinion that it is in my client’s interests to reopen the case; This is not an attempt to circumvent the effects of a tactical decision made during the hearing.

At the time of the submissions on sentencing, I had no indication suggesting that my client’s mental condition would be disturbed. I waited a long time before deciding to write to you, because I wanted to ensure that this fell within the category of “the clearest of cases”. I remain entirely at your disposal if you require any other information or explanation. Thank you.

Mtre Félix-Antoine T. Doyon [9] [Bold and underlining in original] [ 20 ] Counsel for the appellant thus seeks to reopen the hearing on the basis of his [ translation ] “firm conviction that [his] client’s mental condition must be assessed”, [10] given the progressive deterioration of his mental condition since the sentence was taken under advisement on December 14, 2021. This application ultimately seeks an order to assess the appellant’s fitness to be sentenced. To do so, it is suggested that the judge adapt ss. 672.11 (

a) and 672.23(1) Cr.C . to the case at bar, to guarantee respect for the appellant’s fundamental rights in the sentencing process. [ 21 ] The email from April 11 is accompanied by detailed notes from the appellant’s spouse, L. Co., in which she relates her telephone conversations with the appellant while he was in custody. [11] She observed worrying indications in him, such as the conviction that he was the focus of media interest and the subject of large-scale persecution and all types of conspiracies, not to mention his grandiose and absurd ideas. One of L.

Co.’s notes ends with this call for help: [ translation ] I was told in B.C. that my husband is no longer there, that they can no longer care for him, there is not enough staff to supervise him 24 hours a day, so he is in Orsainville. In Orsainville, they don’t want to talk to me, only to my lawyer. They will inform me only if my husband dies. I have no voice, I can’t speak. I only cry. I have been trying to get care for him for nearly two months . Where is the justice. What kind of crazy world do we live in.

March 16 - no more telephone calls from my husband. [12] [Emphasis added.] [ 22 ] Counsel’s submissions inspired by his conversations with the appellant report the same dynamic as that noted by L. Co.. [ 23 ] When arguing his informal application, [13] counsel submitted that s. 7 of the Charter [14] authorized the judge to have his client’s fitness determined, even if court proceedings had reached the sentencing stage.

He asserted that the inherent rules of procedural fairness, the common law, and the court’s residual power conferred this power on the judge. [ 24 ] Counsel also asserted the following: [ translation ] Now, if we base ourselves solely on

section 7, according to what I understand from the case law, I should bring a motion challenging the constitutionality of

section 2 and

section 672.23. ... If I have to go to the Superior Court, I could do so to... (inaudible) - if it can avoid a constitutional debate, I will go before the Superior Court . [15] [Emphasis added.] [ 25 ] At first instance, the prosecution’s contestation of this application was based essentially on a textual argument whereby any application for the assessment of the mental condition of a person charged with an offence necessarily had to take place before the verdict. The prosecution also argued that, in this case, sentencing proceedings were complete.

According to him, even if the judge was left with doubt as to the appellant’s fitness, this question could no longer be raised at the sentencing stage [ translation ] “because it is no longer possible for him -- the case is over, actually, practically over”. [16] [ 26 ] On appeal, the arguments of counsel on the judge’s power to render an order to have the appellant’s fitness determined just before sentencing were substantially the same. (

C) Analysis [ 27 ] The issue in this appeal requires going off the beaten path and adopting a creative approach to ensure the protection of the fundamental rights of a person charged with an offence suffering from a mental disorder at the sentencing stage. [17] [ 28 ] I believe it is useful at the outset to review the legislative scheme applicable to accused suffering from mental disorders. I will then discuss some of the stages of the implementation of that scheme, and review the extent of the powers of a statutory court in respect of each stage. (

i) The legislative scheme [ 29 ] In 1992, Parliament set up a complex and exhaustive scheme in the Criminal Code for accused suffering from mental disorders. [18] This statutory framework includes interconnected stages and mechanisms the purpose of which can only be understood when considered as a whole. Although the law provides for various scenarios involving an accused’s mental condition, [19] I will limit my discussion to those concerning the accused’s fitness to stand trial.

[ 30 ] In this scenario, the judge may, ex officio or upon application by a party, order a fitness assessment of the accused before the verdict. If the accused is declared fit, the accused will have to stand trial. If the issue of fitness is raised during trial and leads to the same conclusion, the trial must continue. [ 31 ] In the event of unfitness, an institutional mechanism of care and custody is triggered.

This mechanism ultimately brings the accused back before the court within no more than two years to verify the accused’s condition and, if appropriate, decide whether criminal proceedings may continue ( s. 672.33(1) Cr.C . ). This stage may even lead to the accused’s acquittal ( s. 672.33(6) Cr.C . ). [ 32 ] I now reproduce the provisions of the Criminal Code that are the most directly relevant to this appeal:

Definitions 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 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. ( inaptitude à subir son procè

s) Assessment order 672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine (

a) whether the accused is unfit to stand trial; … 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 on application of the accused or the prosecutor, that the issue of fitness of the accused be tried. ... Définitions 2 . Les définitions qui suivent s’appliquent à la présente loi. […] « inaptitude à subir son procès » Incapacité de l’accusé en raison de troubles mentaux d’assumer sa défense, ou de donner des instructions à un avocat à cet effet, à toute étape des procédures, avant que le verdict ne soit rendu, et plus particulièrement incapacité de :

a) comprendre la nature ou l’objet des poursuites;

b) comprendre les conséquences éventuelles des poursuites;

c) communiquer avec son avocat. ("unfit to stand trial") Évaluation 672.11 Le tribunal qui a compétence à l’égard d’un accusé peut rendre une ordonnance portant évaluation de l’état mental de l’accusé s’il a des motifs raisonnables de croire qu’une preuve concernant son état mental est nécessaire pour :

a) déterminer l’aptitude de l’accusé à subir son procès; […] Troubles mentaux durant les procédures 672.23

(1) Le tribunal qui a, à toute étape des procédures avant que le verdict ne soit rendu, des motifs raisonnables de croire que l’accusé est inapte à subir son procès peut, d’office ou à la demande de l’accusé ou du poursuivant, ordonner que cette aptitude soit déterminée. […]

[ 33 ] At the time these provisions were enacted, a Parliamentary committee (the “Committee”) was concerned that the scheme was limited solely to the condition of the accused. Seeing this as a possible disparity with the situation of an offender suffering from a mental health issue at the sentencing stage, the Committee presented a proposal for amendment to extend the scheme to this stage of criminal proceedings: ... The definition of unfitness to stand trial found at

section 2 of the Criminal Code in its present form covers the criminal proceedings at any stage up to the rendering of the verdict. The Code does not provide for the accused who is fit at the time of conviction, but becomes unfit between that date and the imposition of the sentence by the court having jurisdiction. The court cannot order a fitness assessment under

section 672.11 of the Code and the Review Board cannot assume jurisdiction over the convicted accused at this stage of the proceedings under

section 672.38 of the Code . In such a situation, the unfit convicted person cannot participate meaningfully in the pre-sentence process and is unlikely to be able to properly instruct counsel. As the Committee was told by some of those sitting in our courts and having direct experience with these types of situations, the law in its present form leaves judges with the prospect either of sentencing unfit convicted persons or distorting the law to avoid doing so. This puts sentencing judges into an untenable situation. The Committee believes that this gap in the present law must be filled. This can be easily done. The

section 2 definition of “unfit to stand trial” should have the words “and to be sentenced” added to the title, and the words “or sentence imposed” added to the definition itself after the words “verdict is rendered.” This change in the definition of fitness to stand trial will have to be accompanied by amendments to

section 672.11(

a) of the Code, allowing the court to order an assessment of a convicted accused after conviction and before sentencing, and subsection 672.38(1) of the Code, providing the Review Board with jurisdiction over such a person declared unfit before sentencing. [20] [Emphasis added.] [ 34 ] The government was not eager to accept this proposal for amendment without first being able to evaluate all its potential impacts : The final part of the Committee's recommendation is that convicted offenders found "unfit to be sentenced" would be placed under the jurisdiction of the Review Board.

As indicated above, the Government does not think this proposed solution is feasible. The Review Board assumes responsibility for an unfit accused (not yet prosecuted) and for accused persons found not criminally responsible on account of mental disorder. The powers of Review Boards and the applicable procedural provisions set out in

Part XX.1 are tailored to this group and not to convicted offenders. For example, the disposition-making powers that include an absolute discharge and conditional discharge, which cannot require treatment, would be inappropriate for a convicted offender who is "unfit" to be sentenced. Moreover, the

interpretation of the disposition-making power of courts and Review Boards requires that an absolute discharge be ordered unless the accused poses a significant threat to public safety. Such a discharge would usurp the ultimate role of the sentencing court. Other significant reforms would be required if the concept of fitness to be sentenced is recognized and if the Review Board's jurisdiction is expanded. For example, the nature of the review hearing, the transfer provisions, appeal provisions and enforcement provisions would have to be carefully reviewed and modified to address a new category of offender with very different characteristics. In

summary, the issues raised by all three parts of the Committee's recommendations related to fitness at the time of sentencing are complex and worthy of more thorough consideration. The Government proposes that the Minister of Justice explore these issues with provincial and territorial Attorneys General and through joint consultation with the Federal-Provincial-Territorial Working Groups on Sentencing and Mental Disorder . [21] [Emphasis added.] [ 35 ] The door was not completely closed to a legislative amendment, however, as revealed by this exchange from 2004 between the members of a parliamentary committee on

An Act to amend the Criminal Code (mental disorder) and to make consequential amendments to other Acts (S.C. 2005, c. 22): Ms. Catherine Kane (Senior Counsel, Criminal Law Policy Section, Department of Justice): Thank you. This particular amendment and some others relate to addressing persons who were unfit at the time of their sentence.

The committee made that recommendation in 2002, and the government responded at that time indicating further that there were many implications to the sentencing laws, the mental disorder provisions, the role and the jurisdiction of review boards, the criteria that should apply where this new category of “unfit to be sentenced” person should receive some sort of disposition. There are many implications, and we have been working on those implications and options to address the issue of fitness at sentence. ... We had research done by Professor Allan Manson at Queen's University.

He also appeared before the committee a few weeks ago, and he does extensive work in sentencing and corrections. He traced the laws of fitness, and he also recommended that we address the issue of fitness at sentence. He proposed other options that are problematic from a practical point of view, but his paper has enabled the government to advance the discussion with provinces and territories.

The government would be able to perhaps bring forth draft legislation for the committee to look at later in the spring to see if it meets their concerns and would address the full range of issues that need to be addressed if we're going to change the law in this very significant way. ...

Mr. Richard Marceau : Mr. Chairman, if the department undertook to come before the committee to discuss this very matter sometime between now and next spring, I would be willing to withdraw my amendment so that we could revisit the issue in greater detail. I don't have a problem with that. The Chair : Mr. Macklin, are you in a position to give such an undertaking?? Hon. Paul Harold Macklin : I think the best I could do would be to undertake to bring back our position at that point, because in fact it might not yet be resolved. That would likely be the best we could do.

Also, this could be raised with an ongoing working group at FPT that is dealing with this. It meets quarterly. It could in fact deal with this matter. I'd certainly undertake to bring it to their attention and see if we can get a resolution. When you're dealing with negotiated positions, it's very difficult for one to suggest that we can come back with certainty with a resolution. That's a concern I have.

But I'd certainly undertake to do all those things--in other words, to raise it with that working group and to bring back at least a progress report, if not a solution, by spring . [22] [Emphasis added.] [ 36 ] Unfortunately, the interest of the members of Parliament in this issue appears to have dissipated over time. [ 37 ] In the current state of affairs, the definition of “unfitness” in s. 2 Cr.C . and the wording of ss. 672.11 (

a) and 672.23(1) Cr.C . leave no room for

interpretation. Within the meaning of the statute, the scheme concerns only the situation of an accused whose fitness is in question before the verdict. [ 38 ] This case eloquently illustrates the Committee’s legitimate concern that “puts sentencing judges into an untenable situation” when a mental health issue is raised at the sentencing stage.

However, the silence of the Criminal Code does not diminish the constitutional guarantees protecting a person charged with an offence at every stage of the criminal proceedings. (ii) Assessment of an offender’s fitness and accompanying constitutional guarantees - Overview [ 39 ] It is important to distinguish the stage of the hearing to establish “reasonable grounds to believe” that evidence is necessary to determine the fitness of a person charged with an offence from the stage of the actual order for assessment. [ 40 ] As I will now explain, the first is not based solely on codified law.

It is also founded on the principles of fundamental justice that require every court to guarantee respect for the vital interests of a person charged with an offence.

Among those interests is the right to make full answer and defence at the sentencing stage, and the right not to be subjected to an unfair proceeding due to the offender’s lack of direct knowledge of the proceedings taking place before him. [23] [ 41 ] As for the power to order an assessment at the sentencing stage, I find that ss. 721 and 723(3) Cr.C . authorize a court to obtain a report from a probation officer focusing primarily on the offender’s mental condition, in the nature of a psychiatric assessment for the purposes of determining whether the offender is fit to be sentenced. [ 42 ] In the event of a finding of unfit that is not transitory, I would suspend the hearing.

It will fall to the civil regime relating to care of the person to take over. I will explain. - Fundamental and underlying principles of the analysis [ 43 ] Important fundamental principles underlie the remainder of the analysis. Although the Criminal Code does not consider the situation of an unfit person at the sentencing stage, the Supreme Court determined as early as 1994, in Whittle , [24] that the same standards relating to the accused’s cognitive ability applied throughout the court proceedings, [25] which necessarily include the sentencing stage. [ 44 ] In R.

L ., this Court reiterated the principle in unambiguous terms: [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 to require 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 unfit person is unlikely to accord with the principles of fundamental justice. [26] [Emphasis added.] [ 45 ] Canadian commentary [27] and case law [28] firmly support this position.

They recognize the importance for the accused and the offender to be present at every stage of the criminal proceedings, not only physically but also mentally. [ 46 ] It can therefore be said without risk of error that the constitutional guarantees enjoyed by the accused, in particular those conferred by s. 7 of the Charter , do not cease applying to an accused who is awaiting sentencing [29] because, in fact, the accused is still a person charged with an offence. [30] In Walker , [31] the Court of Appeal for Ontario wrote: [44] Proceeding against a person who is not mentally present at the proceedings is akin to proceeding against a person who is not

physically present at the proceedings. It has the effect of excluding that person from the proceedings . While courtroom efficiency is a laudable goal, it is not to be achieved at all costs. Where fitness concerns arise, they must be addressed. There is nothing irresponsible about halting proceedings to take steps to ensure that the subject of those proceedings is present in mind. ... [56] Individuals have as much right to be present in mind at proceedings determining their liberty as they have a right to be present in mind at proceedings determining their culpability.

The dignity and fairness of our justice system requires that to be so. [Emphasis added; references omitted.] [ 47 ] The fact that the legislative scheme covers solely the proceedings before the verdict changes nothing. Without interfering in the defence strategy, the sentencing judge is still bound to ensure that all the proceedings take place before an offender who is mentally present and able to effectively take

part in the debate and communicate with their lawyer. [32] That is why one author wrote: There does not appear to be any reason why an accused who has been found unfit at a point in the prosecution beyond the verdict should be treated any differently than an accused found to be unfit prior to the verdict. [33] [ 48 ] The prosecution nevertheless claimed that the appellant’s fundamental rights were not likely to be undermined because the judge had reached the sentencing stage. I do not agree with this proposition. [ 49 ] Sentencing remains a crucial stage for an accused.

I quote here from a passage from Dickson J. in Gardiner , [34] which he himself was quoting from Sir James Fitzjames Stephen, who wrote in 1863, “the sentence is the gist of the proceeding. It is to the trial what the bullet is to the powder”. According to Dickson J., this statement was still true in 1982. In my view, it remains true in 2023. [ 50 ] The objective of deterrence – both specific and general – sought by sentencing would be seriously undermined in the case of unfit offenders unable to understand the proceedings unfolding before them. I could not say it any better than author Schneider in his

article “Fitness to Be Sentenced”, cited above, to explain the importance for the accused to be fully lucid at the sentencing stage: Indeed, to proceed with sentencing in respect of an unfit accused would be to ignore the objective of specific deterrence – an acknowledged principle of sentencing. Specific deterrence is that aspect of sentencing which is designed to bring home to a particular accused the probable consequences of re-offending. Similarly, the general deterrence objective of deterring other “like-minded” accused would appear to be lost if an unfit accused were to be sentenced.

Furthermore, a court could not expect an accused who does not have a minimal appreciation of the sentencing process to comply with or be governed by any of the terms the court may impose in its sentence. Finally, an unfit accused who did fail to comply with the terms of the sentence imposed while unfit would inevitably have a defence to any charges laid as a result. [35] - Reasonable grounds to believe [ 51 ] As established in the scheme set out in ss. 672.1 and following of the Criminal Code , the prosecutor or the accused may apply to a judge to consider whether the accused is fit to stand trial.

The judge may even raise the matter ex officio. [ 52 ] In the first case, the application usually takes the form of a motion to be ruled on after a

summary hearing to determine whether there are reasonable grounds to believe that evidence is necessary to determine whether the accused is fit. In the second case, it is often the accused’s attitude during the trial that sows a doubt in the judge’s mind and urges further inquiry into the question. [ 53 ] At the sentencing stage, the accused, now referred to as the offender, enjoys the same right to have it established that reasonable grounds exist to believe that their fitness is in issue.

There appears to be no doubt in Canadian law that the state cannot prosecute an accused who is devoid of sufficient mental capacity to understand the proceedings, [36] including sentencing proceedings. [37] [ 54 ] I do not see how the justice system would not be brought into disrepute in the eyes of an objective and reasonably informed observer who knew, for example, that the court, when ordering probation and wishing to discharge its legal obligations, (1) causes a copy of the order to be given to the offender (732.1(5)(

a) Cr.C .); (2) explains the conditions of the order to the offender (732.1(5)(

b) Cr.C .); (3) causes an explanation to be given to the offender of the procedure for applying for a change to the optional conditions (732.1(5)(

c) Cr.C .); and (4) “take[s] reasonable measures to ensure that the offender understands the order and the explanations” (732.1(4)(

d) Cr.C .), while having reasonable grounds to believe that evidence is necessary to determine whether the accused is fit to understand such an order. [ 55 ] Moreover, there is no doubt that the judge has the necessary powers to verify whether an offender’s rights are infringed. [ 56 ] Again very recently, the Supreme Court discussed the extent of a trial judge’s residual powers: [32] However, s. 669.2 does not eliminate the judge’s residual discretion (see, by analogy, R. v. R.V. , 2019 SCC 41 , [2019] 3 S.C.R. 237, at para. 75 ).

As the gatekeeper for trial fairness, the judge retains at all times the power to inquire on his or her own initiative even where doing so is required neither by statute nor at common law.

Where there are indications suggesting that the consent of the accused might be vitiated, the court should exercise its residual discretion and investigate further in order to ensure that the consent of the accused to the procedure is voluntary and informed ( Gauthier ; Jetté ). [38] [ 57 ] By analogy, I find that these principles apply in cases where the judge is called upon to consider the offender’s fitness at the sentencing stage.

This power of inquiry rests on the judge’s residual power to ensure a fair hearing to respect the fundamental rights of a person charged with an offence at every stage of the criminal proceedings, including sentencing. [39] [ 58 ] In Canadian Broadcasting Corp. v. Manitoba , Kasirer J. wrote:

[62] … In addition to any explicit grant, statutory and appellate courts should be understood to have the implicit power to control their own process and exercise other powers that are practically necessary to accomplish the role the law assigns them... . [40] [References omitted.] [ 59 ] In short, if the issue of the offender’s fitness is raised at the sentencing stage, it must be answered at the initial step according to the standard of “reasonable grounds to believe”. [ 60 ] The judge will then have two options.

The first – and this is not disputed – is the conclusion that there are no reasonable grounds to believe that the offender’s fitness must be examined. The proceedings inherent to sentencing will then continue with no further inquiry. If the opposite is found, then the question of the actual assessment order is raised. - Order to determine offender’s fitness at the sentencing stage [ 61 ] The law does not provide for a fitness assessment at the sentencing stage. Counsel for the appellant nevertheless submits that the judge had the power to subject his client to the scheme under

Part XX.1 of the Criminal Code ( s. 672.1 et seq . Cr.C .). He argues: (

a) Section 672.12(1) of the Criminal Code authorizes a fitness assessment of the accused “at any stage of proceedings”; (

b) The common law recognizes the power of the courts to consider the accused’s mental condition after a guilty verdict; (

c) Under s. 7 of the Charter, ss. 2, 672.11 and 672.23(1) Cr.C . may be declared unconstitutional. [ 62 ] With respect, I am of the opinion that none of these arguments granted the judge the power to include the appellant’s situation within the scheme circumscribed and defined in the Criminal Code for cases of mental disorders. (

a) Subsection 672.12(1) Cr.C. [ 63 ]

Section 672.12(1) Cr.C . reads as follows: Where court may order assessment 672.12.

(1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or , subject to subsections (2) and (3), on application of the prosecutor ... 1991, c. 43, s. 4; Pouvoir du tribunal 672.12.

(1) Le tribunal peut rendre une ordonnance d’évaluation à toute étape des procédures intentées contre l’accusé , d’office, à la demande de l’accusé ou, sous réserve des paragraphes (2) et (3), à la demande du poursuivant. [...] 1991, ch. 43, art. 4; [ 64 ] I find that the appellant’s submission that s. 672.12(1) Cr.C . authorizes a judge to make an assessment order at any stage of proceedings including sentencing is based on a compartmentalized reading of the statute and isolates this provision from the whole to the point of distortion. [ 65 ] The definition of “unfit to stand trial” in s. 2 of the Criminal Code specifically limits the assessment of this condition to “any stage of the proceedings before a verdict is rendered ” [emphasis added]. [ 66 ] Moreover, when read together, ss. 2 and 672.11 (

a) Cr.C . leave no doubt as to the

interpretation to be given to s. 672.12(1) Cr.C . This provision necessarily concerns the assessment referred to in s. 672.11 Cr.C ., which concerns the determination of the fitness of the accused to stand trial.

The appellant’s trial, however, has been over since July 22, 2021. [ 67 ] The same logic applies to s. 672.23(1) Cr.C ., which provides that an accused’s fitness to stand trial may be tried “at any stage of the proceedings before a verdict is rendered ” [emphasis added]. [ 68 ] As for s. 672.38(1) Cr.C ., this provision provides that the Review Board for mental disorder in Quebec must “make or review dispositions concerning any accused in respect of whom a verdict of not criminally responsible by reason of mental disorder or unfit to stand trial is rendered” [emphasis added]. [ 69 ] Each of the stages and proceedings in the scheme set out in

Part XX.1 of the Criminal Code ( s. 672.1 et seq . Cr.C . ) form an inseparable whole and are links in a logical chain that Parliament intended to apply only to criminal proceedings prior to the verdict. They therefore cannot be subdivided into separate pieces in a way that ultimately contradicts the very spirit of the scheme. [ 70 ] Finally, the government’s response [41] to the Committee’s proposed amendments do not weigh in favour of a broad

interpretation of the scheme. [42] (

b) The common law

[ 71 ] The appellant relies on precedents from other provinces to assert that the judge had the common law power to render the order sought pursuant to

Part XX.1 of the Criminal Code ( s. 672.1 et seq . Cr.C .). I do not share this point of view. [ 72 ] First, the appellant cannot cite a single precedent conferring on the Court of Québec the power to order an assessment at the sentencing stage under

Part XX.1.

Second, all of the case law [43] invoked by the appellant is from the courts of original general jurisdiction, which have residual jurisdiction [44] along with the inherent power to declare a law or regulation unconstitutional. [45] [ 73 ] The jurisdiction of the Court of Québec, however vast, is limited to that which is specifically attributed by the enabling statutes. [46] The common law cannot supplement jurisdiction that has not been expressly or implicitly conferred on a statutory court by the legislature. [47] [ 74 ] It is important, however, that a superior court’s residual power authorizing it to order remedies not provided in the law not be confused with the trial judge’s residual discretionary power, which is needed to ensure the protection of a fundamental right. [48] In this regard, I have no doubt that the power of inquiry to verify “reasonable grounds to believe” is included in this second category. (

c) The constitutional approach [ 75 ] The matter of the constitutionality of s. 2 (def.: “unfit to stand trial”), of s. 672.11 (a), and of s. 672.23(1) Cr.C . may be approached from two different angles: it can either be considered under a declaration rendering these provisions inoperative ( s. 52(1) of the Constitution Act, 1982 ) in respect of the party whose fundamental rights are infringed, or result from a prior declaration of unconstitutionality by a superior court. [ 76 ] In the first case, there is no doubt that a provincial court is not required to apply an invalid law. [49] As a result, it may refuse to apply any provision that does not conform to the Charter , even if the provision at issue remains operative. [50] [ 77 ] However, for the appellant, the problem remains.

The power of a Court of Québec judge to suspend the application of certain provisions deemed unconstitutional does not include the power to create a positive right as a remedy. The judge was therefore correct to find that she did not have the power to create a right for the appellant from scratch by including him in the scheme from which he is excluded. [ 78 ] Further, the appellant proposes that inspiration be drawn from the case law of other provinces and territories to apply to his situation. The appellant invokes Balliram , a 2003 judgment of the Ontario Superior Court of Justice, [51] as a precedent.

Balliram was convicted of assault with a weapon, sexual assault causing bodily harm, and unlawful confinement of his girlfriend and their two children.

He had been in custody since his arrest and became unfit to continue the criminal proceedings only after the guilty verdict. [ 79 ] In that case, the judge first concluded that the “evidence led on the application that supports a finding that [Balliram] cannot communicate with and instruct his lawyer”. [52] He nevertheless ran up against the statutory limits authorizing him to order a fitness assessment of the accused at the sentencing stage. [53] Court-appointed counsel for Balliram then raised the constitutional invalidity of ss. 2 and 672.23(1) Cr.C .

Because he already had reasonable grounds to believe that evidence was necessary to determine whether Balliram was unfit, the judge granted the motion, on the basis of reading in to order a fitness assessment of Balliram at the sentencing stage. [ 80 ] I note in passing that, for the purposes of reading in, the Justice of the Superior Court of Ontario drew inspiration primarily from the June 2002 Committee’s suggestion. [ 81 ] Several Canadian decisions subsequently cited Balliram – with or without approval – including Bharwani , C.W.W. , Crossley , Walker , R.M.P. , Nehass, Morrison and Jaser. [54] [ 82 ] For example, in Morrison , a Saskatchewan case, ss. 2 and 672.23 Cr.C . were declared inoperative under s. 52 of the Constitution Act, 1982 , even though the judgment was rendered in a case involving a dangerous long-term offender.

The reading in technique was used to conclude that the scheme applied to the offender’s situation. The judge wrote: [37] … Whether the s. 7 protection is a “more limited scope” as described by the Supreme Court of Canada, or what I describe as a “different scope”, it is still a protection that is guaranteed by s. 7 of the Charter throughout the entire trial process from beginning to end. There is no suggestion that post-verdict s. 7 protection should be identical to pre-trial s. 7 protection. It cannot be, as the processes are completely different, but one is not necessarily more important than the other.

In situations such as Mr. Morrison is presently in, the post-verdict situation can be just as critical as the situation before the verdict was rendered. The dangerous offender sentencing process certainly is as complicated as the jury trial for entirely different reasons – but not more or less important reasons. While Crown counsel is of the opinion that Justice McWatt in Balliram “reached his conclusion rather swiftly and did so largely on the basis that sentencing is part of the trial process”, this Court totally disagrees with that suggestion.

Everyone’s s. 7 rights are to be protected throughout the entire trial both before and after conviction. [ 83 ] In Nehass , the Supreme Court of Yukon found that it had the necessary jurisdiction to order an assessment of the accused’s fitness to be sentenced, based on the common law and its inherent powers. [55] [ 84 ] In Walker , cited above, the Court of Appeal for Ontario neither affirmed nor set aside the approach in Balliram .

First, the Court of Appeal established that the right to be fit at the sentencing stage does indeed exist in Canadian law. [56] Then, without officially ruling on the legal basis of Walker’s right to have his fitness tried at the sentencing stage, Fairburn J.A., writing for the Court, resolved the question as follows: [57] I am satisfied that, even if the Criminal Code provisions are not available for a fitness hearing after a finding of guilt has been made, a proposition that I should not be taken as endorsing, there are sufficient jurisdictional alternatives in place that would have permitted the issue to be explored. [57]

[ 85 ] Unfortunately for the appellant, none of these precedents could help him before the Court of Québec. Since R. v.

Sullivan , [58] it is clear that declarations of unconstitutionality under s. 52(1) of the Constitution Act, 1982 are not binding on courts in other provinces: [62] Federalism prevents a s. 52(1) declaration issued within one province from binding courts throughout the country: indeed, to allow a declaration of unconstitutionality issued by a superior court in British Columbia to bind a superior court, much less an appellate court, in Quebec or Alberta would be wholly inconsistent with our constitutional structure....

It cannot be the case that the supremacy clause compels this outcome, through the simple operation of s. 52(1) . ... [63] The better view is that s. 33.1 is not null and void, but inoperative by reason of a determination of law made by a judge. That determination is binding, within the province, unless there is valid reason to depart from it. The accused is free to make that argument and a court of coordinate jurisdiction is not irretrievably bound by the prior decision within the province.

Needless to say, the declaration of unconstitutionality made by a superior court in one province may be followed in another province because it is persuasive... . Thus, I reject the arguments from Mr. Sullivan and the interveners that a s. 52(1) declaration is of such a unique legal character that, once a declaration is issued anywhere in the country, its effect is that the impugned legislation is “no longer in the system” from coast to coast.

Instead, a s. 52(1) declaration is the end-result of a judge’s ability to resolve questions of law and should be observed by courts of coordinate jurisdiction within the province as a matter of stare decisis : nothing more or less . [Emphasis added.] [ 86 ] The actual effect of a court decision declaring a legal provision unconstitutional is therefore necessarily limited to the territorial jurisdiction of the issuing court and according to the hierarchy determined by the rule of stare decisis and the principle of judicial comity. [ 87 ] As no Quebec decision has applied the reading in solution used in Balliram to ss. 2 , 672.11 (

a) and 672.23(1) Cr. C ., this option leads to a dead end. [ 88 ] I add that, since the recent Supreme Court decision in R. v. Bissonnette , the reading in approach is not immunized from criticism if a superior court using this technique inappropriately intrudes into the legislative sphere. [59] [ 89 ] Finally, reliance on s. 24(1) of the Charter does not seem to be the appropriate vehicle to properly supplement the scheme in question.

Using this provision would be nothing more than an indirect way of reading in, [60] not to mention that it would undermine the presumption of constitutionality of the provisions at issue. [ 90 ] That said, it is true that, in paragraph 23 of R.L., [61] this Court wrote that an accused’s fitness to stand trial also extends to sentencing proceedings. While this right is not in doubt, I am nonetheless not prepared to concede that this Court’s judgment recognizes, even implicitly, the right of an accused at the sentencing stage to have access to the scheme in

Part XX.1 of the Criminal Code for mental disorders. (iii) Psychiatric assessment and stay of proceedings [ 91 ] For the reasons already explained, I find that, if a Court of Québec judge has reasonable grounds to believe that evidence concerning the offender’s mental condition is necessary to determine whether the offender is unfit to be sentenced, ss. 721 and 723(3) Cr.C . confer on that judge the power to request a report focusing primarily on the offender’s mental condition in the nature of a psychiatric assessment.

Accordingly, I agree with some of the case law from the Court of Québec that has already endorsed this solution. [62] [ 92 ] On this issue, I will add that the doctrine of jurisdiction by necessary implication [63] and the implicit powers of a statutory court, which are indispensable to fulfil the role conferred upon it by law, [64] are serious foundations in support of its capacity to make an order of this nature, on the condition, however, that it has reasonable grounds to believe that evidence of the offender’s mental health is necessary. [ 93 ] If the psychiatric assessment concludes that the offender is unfit, the only possible solution seems to be to stay the proceeding since, first, the main interested party does not have access to the scheme under

Part XX.1 of the Criminal Code and, second, sentencing proceedings could not continue without violating his constitutional rights. [ 94 ] The proceeding should be stayed only if the evidence in the record authorizes the judge to conclude that the offender’s unfitness will not resolve within a reasonable time, as measured against the efficiency expectations of the justice system. [ 95 ] If the offender’s unfitness is transitory, sentencing must be postponed for the reasonable time required to allow his mental condition to recover sufficiently for him to be sentenced. [ 96 ] We may also wonder what will happen to the offender after the proceeding is stayed.

On this issue, I will say only that such an order necessarily arises where the offender has a mental health problem. In such a situation, it is up to the civil regime of care for persons to intervene, as appropriate. This is moreover what LeBel J. stated in R. v.

Demers : The need to protect the community from permanently unfit accused who pose a significant threat to public safety can be answered through the exercise of the provincial health power. [65] [ 97 ] For public safety in general and the offender’s safety in particular, I suggest that the order to stay proceedings be notified to the Public Curator, a vital aspect of whose mission is to see that incapable persons are protected, [66] to the Attorney General of Quebec, due to his general responsibilities under the Act respecting the Ministère de la Justice , [67] and to the Tribunal administratif du Québec, as provided in

article 397 C.C.P .

(iv) Application to the situation at bar [98] The judge dismissed counsel for the appellant’s application to reopen the hearing to establish the existence of reasonable groundsto believe that his client’s fitness was in issue. [99] The application was dismissed for reasons I have already described here. With respect, I am of the opinion that none of them arefounded.

Rather, I find that the judge should have reopened the hearing to allow a formal inquiry to verify counsel’s allegations that hisclient was unfit. [100] It must nevertheless be acknowledged that counsel’s pleading (email of April 11) was unclear and, at worst, misdirected. Putsimply, the real meaning of his application at first instance was not immediately apparent. Moreover, the judge’s task was particularlydifficult, as revealed by my own analysis of the record. [101] That said, I reject at the outset the judge’s reason that counsel had no instruction.

A person charged with an offence who is unfitis not expected to be able to communicate effectively with counsel to provide instructions of this nature. That is why a statement from anofficer of the court responsible for protecting the fundamental rights of his client and for always acting in the interests of justice shouldweigh heavily in considering an application like the one that was before the judge.

In any event, due to the judge’s obligation to ensurethat the appellant’s fundamental rights are respected, it is pointless to consider the instructions to his lawyer any further, since the issueof fitness can in any event be raised ex officio. [102] The judge also found that the “unofficial” correspondence from Ms. Co. could not lead to an assessment order. This finding iscorrect, but it did not justify dismissing the application to reopen the hearing. What Ms.

Co.’s note revealed was enough to raisesufficient doubt to verify whether it could be transformed into reasonable grounds to believe that the appellant’s fitness should be tried. [103] Counsel’s observations related in his email of April 11 and repeated during the hearing on June 20, 2022, were also sufficient toverify the value of his allegations, as the Court of Appeal of Alberta wrote in regard to a situation similar to the one before us: [9] Any declaration made by counsel that a client is unable to instruct counsel raises an issue which calls for close scrutiny. ThisCourt so held in R. v.

Budic (1977), 1977 ALTASCAD 65 , 35 C.C.C. (2nd) 272 at 278 (Alta. C.A.).

Section 672.23(1) requiresthe Court to have “reasonable grounds” to believe that the accused is unfit to stand trial. “Mere suspicion” will not suffice. While therepresentation of trial counsel may not have been sufficient to allow the trial judge to conclude that the accused was unfit to stand trial,there was sufficient evidence to require a more thorough inquiry so as to ensure that there would be no miscarriage of justice. In ourview, based on the representations of Mr. Lister and the now acknowledged mental illness of the Appellant, a more thorough inquiry wasabsolutely essential in this case.

The verdict, accordingly, is unsafe and cannot stand. The appeal must be allowed, the convictionquashed, and a new trial ordered.[68] [Emphasis added.] [104] Moreover, the judge could not presume that the evidence supporting counsel’s position on his client’s fitness was exhaustive. Sheshould have decided this issue in the context of a fair hearing. [105] Because the judge found that she did not have the power to remedy a situation involving the appellant’s lack of fitness, she chosenot to hold a hearing. Yet this is a crucial stage in protecting the fundamental rights of a person charged with an offence.

This was anerror of law that justifies the Court’s intervention. [106] As for the reason that the appellant appeared fit in the eyes of the judge when evidence on sentencing was presented onDecember 14, 2021, the obligation to ensure respect for his fundamental rights had not disappeared on June 20, 2022 before the sentencewas rendered. [107] The judge believed she did not have jurisdiction to inquire into the appellant’s mental condition. In these circumstances, the needto establish the existence of reasonable grounds to believe that evidence is necessary to determine whether he was fit remains.

For thisreason, I would send the file back before the Court of Québec so that the judge may inquire summarily to verify whether such groundsexist. [108] If, at the end of that hearing, the judge has no reasonable grounds to believe that the appellant’s fitness is at issue, the sentenceimposed on June 20, 2022, should be imposed again, after taking into account the time already spent in custody and the ancillary orders. [109] If the evidence weighs in favour of obtaining a report containing a psychiatric assessment and this assessment concludes that theappellant is unfit, the judge will have to postpone sentencing to another date if it is foreseeable that the person concerned will recover hishealth within a reasonable time.

If he is not expected to recover, an order staying proceedings should be made. [110] In light of the foregoing, there is no need to consider the feasibility of the measures sought by the appellant before this Court, asdiscussed in Fruitier c. R.[69] (

v) Order prohibiting contact with L. Co. [111] The judge ordered the appellant not to directly or indirectly contact the members of the victim’s family, including his spouse, L.Co.. This order was rendered under s. 742.21 Cr. C. [112] The appellant and, from what I understand, L. Co. both ask the Court to lift this prohibition as it applies to L. Co.. Theprosecution does not contest this application. [113] Given that I would quash the sentence ordered at trial and all incidental orders accompanying it, this issue may be discussed again

before the judge when the record is returned to the Court of Québec.

D) Conclusion [ 114 ] I would grant the application for leave to appeal, allow the appeal in part, and review the interlocutory decision refusing to allow the appellant to re-open the hearing at the sentencing stage, set aside the sentence, and order the case returned to the Court of Québec to hear the evidence inherent to establishing reasonable grounds to believe that evidence on the appellant’s mental condition is necessary to determine whether he is fit to be sentenced and, as necessary, to order a stay of proceedings should his mental condition require it. [ 115 ] I will add one final comment to these already very lengthy reasons.

The appellant’s situation is not as unusual as it may appear. There seem to be other cases pending before the Court of Québec that involve the issue of the assessment of the accused’s mental condition at the sentencing stage. Since the establishment of a legislative scheme for persons with mental disorders, various Canadian courts have had to intervene in one way or another to protect the fundamental rights of offenders awaiting sentencing.

The concerns of the Committee presented in 2002 remain current, and I hope that they will be considered by Parliament again, as soon as possible, for the purpose of protecting the fundamental rights of all persons who are confronted with this legal vacuum. GUY GAGNON, J.A.