Her Majesty the Queen - v. -, 2011 SKPC 061

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 061 Date: April 20, 2011 Information: 39695247, 39695251, 39695338, 39695347, 39847031, 39847032 Location: Saskatoon ____________________________________________________________________________ Between: Her Majesty the Queen - and - RCMc Appearing: Ms. D.D. Black For the Crown Ms. J.D.

Khan For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . _____________________________________________________________________________ DECISION Q. D. AGNEW , J _____________________________________________________________________________ (

a) This matter came before me pursuant to s. 672.23 of the Criminal Code , to determine the issue of the accused’s fitness to be tried for various offences. The evidence was heard over two half-days, namely the afternoons of February 7 and April 6, 2011.

(

b) RCMc is accused of having committed a variety of offences in December 2008, January and November 2009, as specified in the Informations listed above. The Crown presented evidence which satisfied me that it has established a prima facie case against the accused regarding those allegations. (

c) RCMc has previously been found unfit to stand trial with respect to the subject Informations. Accordingly, as the Crown asserts his fitness, the onus is on the Crown to prove fitness on a balance of probabilities. [1] (

d) The definition of “unfit to stand trial” is found in s. 2 of the Criminal Code , where it is defined as meaning: unable on account of mental disorder to conduct a defence at any stage of the proceedings before 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. (

e) RCMc is 17 years old. He has been diagnosed as having concurrently: (

a) autism spectrum disorder, low functioning; (

b) probable bipolar spectrum disorder; (

c) attention deficit hyperactivity disorder; (

d) moderate mental retardation (this diagnosis is disputed by Dr. Obikoya, who considers the degree of retardation to be “mild”); (

e) epilepsy; (

f) various other problems. [5] The Crown provided evidence from Dr. Olubankole Obikoya, a senior psychiatrist at the Saskatchewan Hospital in North Battleford. The Crown also provided evidence from Dr. Robert John Brown, the chief psychologist at the Saskatchewan Hospital. I qualified both of these witnesses as experts in their respective fields.

They both testified as to their involvement with the accused, their testing and discussions with him, the conclusions they had drawn with respect to his fitness to stand trial and the reasons for those conclusions. [6] Both of them were of the view that he is not unfit to stand trial, within the meaning of the Criminal Code . They testified that he understands the nature of the trial and at least some of the possible outcomes, and the role of the various players in the trial.

Furthermore, they testified that he can communicate the events of the occurrences which form the basis of the charges against him. [7] Two experts were also called on behalf of RCMc. Dr. Declan Quinn is a psychiatrist specializing in child and youth psychiatry. Brian McDonald is a psychologist with extensive experience in dealing with youth involved with the criminal law. I qualified both of them as experts in their respective fields.

They both testified as to their involvement with the accused, provided their reports and confirmed that the same still constitute their opinion, which in both cases was that RCMc is unfit to stand trial as that phrase is defined in the Criminal Code . [8] As noted, all witnesses provided their views as to whether or not the accused is fit to stand trial.

I allowed them to do so on the basis that making that determination is actually for me to do, not them, but that as it was the focus of the issue and the reason for their testimony, it would be difficult for them to provide their testimony without making some reference to it. Similarly, their respective views of the legal tests involved in that determination are not of particular assistance to me; I allowed them to testify in that regard as it assisted me in determining the basis for their respective beliefs that RCMc is or is not fit.

In reviewing their evidence, however, I remain cognizant of the fact that ultimately, the conclusion of any witness as to RCMc’s fitness is not relevant to me; it is the information each witness can provide to me to enable me to determine that issue myself which is of assistance.

[9] The Crown’s witnesses have had the advantage of working with RCMc at Saskatchewan Hospital over a significant, and very recent, space of time. The defence witnesses each dealt with RCMc on one occasion, some time ago: in the case of Dr. Quinn, on June 25, 2010 and in the case of Mr. McDonald, on June 22, 2010, although both testified that their conclusions remain the same and indeed both were able to observe the accused in court prior to testifying. [10] There was some disagreement between the witnesses as to RCMc’s mental abilities.

The IQ scores obtained for him varied between low 50s and mid-60s; to the extent that a mental age could be attributed to him (a matter of disagreement as well), it was described as between four and eight, tending more toward four; although it is difficult to state with precision, he falls within the bottom .1% to 1% of the population. I do not propose to review this evidence in depth, as I regard the differences to be largely irrelevant for the purposes of this matter. It is clear that, whatever the details: (

a) RCMc is grossly lacking in mental abilities; (

b) his comprehension is very limited and basic; (

c) his mental processes are those of a young child; (

d) none of these facts are likely to change any time soon, if indeed ever. [11] RCMc has been in the Forensic Unit of Saskatchewan Hospital since November 17, 2009. The staff therefore have extensive, and recent, experience with him and I accordingly give their opinions considerable weight. [12] RCMc is on an extensive course of medication at Saskatchewan Hospital. Notwithstanding the medications, the behavioural programs, the experienced personnel and the great deal of time they have had to spend with him, RCMc continues to present severe problems to the staff there.

During waking hours he is almost constantly subjected to physical restraints, but even so has managed to injure a number of staff. [13] Staff at Saskatchewan Hospital attempted to educate RCMc regarding the court process and players prior to this hearing, in an attempt to “make” him fit to stand trial. At the end of that training, they report that RCMc was able to indicate who the lawyers were and what their roles were, the role of the judge, the charges against him and possibility of going to jail. They also indicated, however, that RCMc is susceptible to suggestion. Dr.

Brown testified that intellectually, RCMc is “a parrot”. Mr. McDonald, for the defence, testified that he had been able to get RCMc to admit to having done things that he clearly had not in fact done. [14] In addition to the evidence of the witnesses, I have had the advantage of observing RCMc on the two different afternoons which the fitness hearing occupied, for periods totaling several hours. Unfortunately, the record will in no way reflect certain significant events which occurred in the courtroom. [15] RCMc was in custody throughout and, therefore behind glass in the prisoner’s dock.

In the courtroom in which the hearing was held, it is a space roughly 15 or 20 feet long and about four feet wide, with a bench down most of its length. [16] On February 7, 2011, the first hearing date, RCMc began the hearing sitting quietly, holding a stuffed toy which had apparently been provided to him by the Deputy Sheriffs. To begin with, although he would occasionally shift or stand, he remained reasonably passive. As time went on, he began to move more, and began to interact more and more with the deputy or deputies who were in the box with him.

In the latter portion of that half day, there began to be more and more contact between RCMc and the deputies, and by the end, two deputies were attempting to restrain RCMc while he was being very aggressive physically including, it appeared, attempting to bite at least one of them. [17] Over the course of that first afternoon, while RCMc would occasionally make an interjection or some kind of gesture or other signal that he was aware that something was happening in the courtroom, those became less frequent as the afternoon wore on.

Certainly for much of the last half of the afternoon, it appeared to me that RCMc was not only not paying any attention to the proceedings, but was actually incapable of so doing.

[18] During the afternoon of April 6, 2011 RCMc’s behaviour was somewhat different in that there were no physical altercations with the deputies, and RCMc was physically less restless. Similar to the previous session, however, his behaviour included pacing, and becoming agitated and having to be calmed by the deputy. Also as previously, he would occasionally shout out in response to something stated by a witness, or seize upon some seemingly random word and act it out.

These interjections appeared random, but they were always connected with something that had just been said in the courtroom, indicating that at least occasionally RCMc had noticed something of what was going on. As the afternoon went on he again became worse, not to the point of violence but to the point of pacing, talking and growling. After the close of evidence, and with the consent of counsel, I excused him from the courtroom.

Argument was therefore conducted in his absence. [19] From observing him throughout the hearing, I have very little confidence that he was able to follow any aspect of the proceeding, other than occasionally taking notice when his name was might be mentioned or when something or someone briefly caught his attention. [20] There is of course no legal requirement that an accused pay attention to his trial, and were there no doubt about RCMc’s mental capabilities or functioning, this would not be an issue. If an accused chooses not to participate in their trial, that is their choice.

The conclusion which I have drawn from the evidence, and from observing RCMc through the course of this hearing, is that he has no choice in the matter. As a result of his mental situation, at this time, for the past significant period and for the foreseeable future he appears to be incapable of paying attention to his court proceeding or participating in it in any way. [21] Through the course of each afternoon’s hearing, breaks were taken. I did not notice a significant change in RCMc’s demeanour, attention or focus after his return from those breaks.

I mention this in particular because if it were otherwise, it might be possible to organize his trial so that frequent breaks could be taken to enable him to regain focus. My observations of him during the hearing, however, suggest that this would not assist.

Although he was better at the beginning of each afternoon, I do not have any information as to how long a break would be required to regain this status: the two months between hearings was apparently enough (even assuming it was the break itself that caused this “reset” in RCMc); ten or 15 minutes during the hearing was apparently not. [22] The evidence of Drs. Obikoya and Brown indicates to me that, under quiet and controlled circumstances in one-on-one conversations with them, RCMc is able to maintain sufficient focus to answer satisfactorily their questions with respect to his fitness to stand trial.

It may be that understanding, a short time prior to trial, both the nature of the trial and its possible consequences is sufficient for those two branches of the fitness test. In this regard, I should mention that at the end of the defence’s case RCMc’s counsel wished to question him. In light of the evidence heard to that point, and my own observations of him, I did not have RCMc sworn or otherwise discuss the necessity of him telling the truth. I am satisfied that his answers were not duplicitous or knowingly false, however. When his counsel asked him who she was, he replied that she was the judge.

When she asked him what my role was, he was unable to answer. This was repeated with respect to the prosecutor. He appeared to have limited insight into why he was in court. [23] The applicable legal standard to be applied to the test for fitness to stand trial is “limited cognitive capacity”. This test was first annunciated by the Ontario Court of Appeal in R. v. Taylor [2] , and was subsequently adopted by the Supreme Court of Canada in R. v. Whittle [3] . This is the standard against which the accused’s abilities are measured with respect to each of the branches of the unfitness test.

Thus, to be fit to stand trial, the accused must have at least a limited cognitive capacity regarding the nature of the proceedings and their possible consequences, and regarding his or her ability to communicate with counsel. [24] I am satisfied that RCMc meets this standard with respect to the first two branches of the test: that is, because with coaching, in a calm and controlled environment, and at least part of the time, he has at least a limited understanding of the nature of the proceedings and their possible consequences, RCMc meets the first two tests of fitness to stand trial, namely (1) understanding the nature of the proceedings, and (2) understanding the possible consequences.

I am also satisfied that under such conditions, RCMc is able to communicate his version of the events surrounding each of the allegations made against him. He would presumably be able to provide that information to counsel, although I recognize that actually obtaining that information from him might well be difficult and time- consuming.

I am also cognizant of the problem, identified by both psychologists, of the possibility of RCMc giving false information, admitting to something he had not done or otherwise complicating his counsel’s role. [25] How the “limited cognitive capacity” standard is to be applied to the third branch of the fitness test, the ability to communicate with counsel, is a matter of some dispute. There are two major streams of thought, represented by recent decisions respectively of the Ontario and Saskatchewan Courts of Appeal.

[26] The Ontario Court of Appeal recently reviewed fitness for trial in the case of R. v. Morrissey [4] . Mr. Morrissey was alleged to have shot and killed his girlfriend and then turned the gun on himself, firing a single shot to the middle of his forehead. Mr. Morrissey suffered a severe brain injury, but did not die. He argued that he was unfit to stand trial, on the basis that he was incompetent to testify. The evidence indicated that Mr. Morrissey, as a result of the brain injury, likely had a memory loss with respect to the events surrounding the shootings.

It was not clear what he might remember, or the accuracy of anything which he purported to recall. [27] The Ontario Court of Appeal rejected Mr. Morrissey’s submission that testimonial competence is a pre-condition to fitness to stand trial. In a detailed analysis of the policy rationale for the requirements for fitness, the Court cited R. v.

Taylor , supra , at para. 50 : In order to ensure that the process of determining guilt is as accurate as possible, that the accused can participate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is maintained, and that, if necessary, the determination of a fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way.

The Ontario Court of Appeal concluded (para. 36) that “meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness.” [28] The Ontario Court of Appeal found that Mr. Morrissey’s inability to testify as to the events of the alleged shooting did not make him unfit to stand trial, as he would still be able to participate meaningfully in the trial. [29] The precise opposite is the case with respect to RCMc. It appears that he has at least some recollection of the events.

However, there is not any possibility that he would be able to participate in his trial in a meaningful way. Observing him with his stuffed toys in the prisoner’s dock, attempting to take things from the deputy, eventually pacing and running back and forth and ultimately attacking the deputies, it was very clear that the accused was only peripherally aware of the proceedings, and even that only for brief portions of the hearing. [30] The other stream of thought is represented by the Saskatchewan Court of Appeal’s decision in R. v. Jobb [5] .

The Saskatchewan Court of Appeal reviewed the history of the “limited cognitive capacity” test for determining fitness. In Jobb , the Saskatchewan Court of Appeal concluded that the limited cognitive capacity test does not require that an accused be able to make rational decisions beneficial to him, or the “analytic capacity” test as it was referred to in Taylor [6] . [31] The Court of Appeal in Jobb addressed the issue before me in the following terms: The focus of concern for the trial judge was the extent to which Mr.

Jobb’s cognitive disability might limit his ability to give ongoing instructions to counsel in relation to and in response to the trial proceedings . . . this concern does not accord with a limited cognitive capacity test.

As determined in Jobb , a court’s assessment of an accused’s ability to communicate with and instruct counsel is limited to an inquiry into whether an accused can recount to their counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence (paras. 38 and 39). [32] The clearest direction possible, with respect to the situation faced by RCMc, is found in paragraph 43 of Jobb : that Mr.

Jobb be able to participate in his defence in “a meaningful way or assist his counsel during the course of a trial” is not, with respect, an accurate application of the limited cognitive capacity test, which requires only that he be able to recount the facts of the offences with which he is charged to his counsel. [33] That definition clearly does not sit easily beside the situation of Mr. Morrissey, as faced by the Ontario Court of Appeal, where Mr. Morrissey appeared to have cognitive faculties but, because of his brain injury, no ability to recount the facts of the offences. It seems that Mr.

Morrissey, with intact mental faculties but a hole in his memory, would fail to meet the test as annunciated by the Saskatchewan Court of Appeal in Jobb and would accordingly be found not fit to stand trial. On the other hand it appears that RCMc,

with a memory but virtually no ability to participate in the court proceeding in any meaningful way, meets the limited cognitive capacitytest as enunciated in Jobb. [34] As RCMc meets the limited cognitive capacity test for the three branches of the test, I find him fit to stand trial. [35] The matter before me is simply a fitness hearing: it is not a trial as such. Defences and Charter issues which might be putforward at trial thus do not arise. I therefore make no comment as to whether or not the accused would be in a position to make fullanswer and defence, whether or not a trial might therefore entail difficulties with sections 7 and 11(

d) of the Charter, or whether thereare any defences that his mental state might afford RCMc. _____________________________ Q.D. Agnew, J [1] See s. 672.32(2) [2] (ON CA), 1992 77 C.C.C. (3d) 551 [1992] O.J. No. 2394 (Ont. C.A.) [3] (SCC), [1994] 2 S.C.R. 914 [4] 2007 ONCA 770 , 2007 Ont. C.A. 770, 87 O.R. (3d) 481, 227 C.C.C. (3d) 1, 54 C.R. (6th) 313, 163 C.R.R. (2nd) 312, 230O.A.C. 145, leave to appeal denied: 231 C.C.C. (3d) vi [5] 2008 SKCA 156, 314 Sask. R. 236 [2009] 1 W.W.R. 193, 239 C.C.C. (3d) 29. [6] Para. 55