R. v. Thompson, 2011 ONCJ 209

Information No. 10 – SR2289 Citation: R. v. Thompson , 2011 ONCJ 209 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - WAYNE THOMPSON Ms. H. Nickel for the Crown Mr. S. Darroch for the Defendant RULING ON FITNESS TO STAND TRIAL NADEL, J.: Introduction [ 1 ] Wayne Thompson will turn 72 on June 13, 2011. He is charged with a series of historical allegations of indecent assault on males. The nine charges that he is facing are alleged to have occurred between 35 and 39 years ago. Mr.

Thompson maintains that he is unfit to stand trial due to a cognitive disorder that may be the result of a stroke or a progressing dementia or both. His daily consumption of half of a bottle of sherry may be an additional contributing factor to his cognitive decline. The Crown maintains that Mr. Thompson is fit to stand trial, notwithstanding his cognitive disorder. There is no issue about whether Mr. Thompson’s cognitive problems are the result of a mental disorder. Each party called expert evidence in support of their respective position. The experts called, Dr. Derek Pallandi, for Mr. Thompson, and Dr.

Gary Chaimowitz, for the Crown, are both respected forensic psychiatrists. Each is eminently qualified and thoroughly experienced. [ 2 ] Each doctor had ample opportunity to interview and assess Mr. Thompson and each doctor did so on two occasions separated by a significant period of time. Dr. Pallandi saw Mr. Thompson on December 29, 2009 and again on March 14, 2011. Dr. Chaimowitz saw Mr. Thompson on November 25, 2009 and March 15, 2011. It is noteworthy that each doctor saw Mr.

Thompson for the second time within a day of each other in March of 2011. [ 3 ] The doctors’ clinical approaches and their clinical examinations resulted in many similar findings, as I shall outline later in this ruling. There were some differences in their interviewing or investigative techniques and there were some differences in their findings. I will review some of those differences later, too. Ultimately, Dr. Pallandi’s and Dr. Chaimowitz’s disagreement about whether Mr.

Thompson is fit to stand trial comes down to their respective assessment of the extent of cognitive impairment currently being suffered by Mr. Thompson and the effect of that impairment on Mr. Thompson’s ability to communicate with counsel. The Law

[4]

Section 672.22 of the Criminal Code provides that “[a]n accused is presumed fit to stand trial unless the court is satisfied on thebalance of probabilities that the accused is unfit to stand trial.” The state of being “unfit to stand trial” is defined in s. 2 of the Code. The term “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.” [5] There are two controlling authorities that have discussed this definition. The leading authority is R. v. Taylor, (ON CA), [1992] O.J. No. 2394 (C.A.) which accepted the following summation of the s. 2 definition as being apt: “... The definition of ‘unfit to stand trial’ statutorily entrenches the extensive case-law in the area.

Any individual who is unable tounderstand either the nature or object of the proceedings, the possible consequences or to communicate with counsel as a result of amental disorder is rendered ‘unfit to stand trial.’ The terminology provides clarification ... by requiring the issue of fitness to be raisedsolely in the context of a mental disorder and at any stage in the proceedings prior to the rendering of a verdict.” (Taylor at [40]) That is to say that the s. 2 definition codifies the existing common law.[1] This was the submission of Alan Young, the amicus curiae inTaylor, whose submission, to that extent, was accepted by the Court. [6] In Taylor, as in many of the cases where the issue of fitness is joined, there was a concession that Mr.

Taylor both (

a) understoodthe nature or object of the proceedings and (

b) the possible consequences of the proceedings. The same can be said for Mr. Thompson. While Dr. Pallandi did testify that Mr. Thompson’s failing memory precluded him from being able to securely and correctly identify thecharges he was facing, based upon the combined effect of the evidence of both psychiatrists, I am satisfied that Mr. Thompson is notunable on account of mental disorder to (

a) understand the nature or object of these proceedings and (

b) the possible consequences ofthese proceedings. Like Taylor, the real issue before me is whether Mr. Thompson is unable on account of mental disorder tocommunicate with counsel. [7] The issue in Taylor was whether or not trial fitness required the ability to reason on higher cognitive levels. Mr. Taylor’s mentalillness included a pervasive paranoia that precluded him from making decisions that were objectively in his best interests. As a result, hehad been found unfit to stand trial.

On appeal, the Court of Appeal rejected the proposition that trial fitness required the accused to havethe ability to make decisions that were in his best interest objectively. Instead they propounded a “limited cognitive capacity” test but, itis important to note, not precisely the one propounded by the amicus curiae that appears at paragraph [44] of the decision.[2] Rather, theOntario Court of Appeal in Taylor adopted the test for fitness contained in two prior Ontario appellate decisions: R. v. Gorecki (No. 1), (ON CA), [1976] O.J. No. 2307 and R. v. Trecroce, (ON CA), [1980] O.J. No. 1352.

Taylor holdsthat trial fitness does not require that an accused’s mental state must be such as to allow him to act in his own best interests. In doing sothey adopted and followed R. v. Robertson (1968), 52 Cr. App.

R. 690, a decision of the English Court of Appeal (Criminal Division),which held that it was not a necessary component of trial fitness that an accused be capable of acting in his own best interests. (Taylor at[46] and [47]) [8] Instead, Taylor directs that the mental capacity that an accused must possess to be fit for trial is merely that “... he is of sufficientintellect to comprehend the course of the proceedings in trial, so as to make a proper defence ... and to comprehend the details of theevidence ...” (Taylor at [47]) Likewise, Trecroce provides that an accused is fit for trial: • if he understands the nature of the proceedings and the functions of the persons involved in them; • if he knows what the issues are and the possible outcome of the proceedings; • if he is able to follow the evidence generally, even though he may misinterpret it; • if he is capable of instructing counsel although he may disagree with counsel as to how the case should be conducted and he (theaccused) may not act with good judgment. (Taylor at [48]) [9] Taylor confirmed and adopted the existing common law test, the limited cognitive capacity test, now codified in s. 2 because theCourt felt that it struck the appropriate balance among the right of an accused to choose his own defence and to have a trial within areasonable time and the objectives of the fitness rules.

Those objectives are 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 defence; • that the dignity of the trial process is maintained; and, • if necessary, the determination of a fit sentence. (Taylor at [50] and [52])

[10] In sum, Taylor “stands for the propositions that (

a) the “limited cognitive capacity” test governs the determination of fitness tostand trial, and (

b) that this test does not require the accused person to be capable of giving instructions to counsel that are in his or herbest interests.” (R. v. Morrissey, 2007 ONCA 770 , [2007] O.J.

No. 4340 (C.A.) at [31]) [11] Morrissey is the second controlling authority on the issue of fitness to stand trial; it contains a detailed discussion of Taylor.[3] The Court made a number of decisions in Morrissey beginning with the ruling that the ambit of being able to “communicate withcounsel”, an essential element of trial fitness, does not extend to or require that an accused be competent to testify about the criticalevents of the charge and relate those critical events to his counsel. (Morrissey at [26]) In order to arrive at that ruling the Courtnecessarily had to closely examine what is entailed by the requirement that an accused be able to “communicate with counsel” as thosewords are used in s. 2. [12] Morrissey holds that the limited cognitive capacity threshold is not high. “It requires only a relatively rudimentary understandingof the judicial process – sufficient, essentially, to enable the accused to conduct a defence and to instruct counsel in that regard.

It is inthat sense that the accused must be able “to communicate with counsel” and relate the facts concerning the offence.” (Morrissey at [27]) [13] The capacity to recount only needs to be a capacity for a general recounting. The capacity does not need to be a focused and factspecific one. It does not require an ability to relate the immediate events surrounding the alleged crime. Moreover, the extent of theability to communicate with counsel required for trial fitness is simply the ability to seek and receive legal advice.

Briefly put, if anaccused can be meaningfully present and participate meaningfully at the trial, then that accused is fit to stand trial. (Morrissey at [29],[34] and [36]) [14] More fulsomely, Morrissey describes the “ability to communicate with counsel as the ability to communicate for the purposes ofconducting a defence, considering counsel’s advice, and giving instructions with respect to the defence.” Put otherwise, the accused“must be physically, intellectually, linguistically and communicatively present and able to partake to the best of his natural ability in hisfull answer and defence to the charge against him. (Morrissey at [39]) [15] Morrissey contains a portion of Madam Justice Fuerst’s jury charge on the question of whether Mr.

Morrissey was fit to standtrial for murder. The Court approved her charge and found it to be error-free. Hence, I shall charge myself in like terms on the questionof whether or not Mr. Thompson is unable, on account of mental disorder, to communicate with counsel, bearing in mind that the test isone of “limited cognitive capacity” as described above and that the threshold is not high. [16] The general question is whether he can recount to counsel the necessary facts relating to the offence in such a way that counselcan then properly present a defence.

To that end he must be able to speak with counsel rationally, to understand questions and answerthem in an intelligible fashion, and to make critical decisions on counsel's advice, concerning the offence with which he is charged.Amnesia of the events underlying the criminal charge will not, by itself, render an accused "unable to communicate with counsel". Morespecifically I must ask myself: • can Mr.

Thompson can understand the evidence that is given by various witnesses so that he can confer with his counsel and giveinstructions? • does he have the mental capacity to instruct his counsel upon the evidence in order to make full answer and defence to the charge? • is he able to understand advice given by his counsel and to reach a decision as to whether he should or should not testify? • does his mental condition prevent his counsel from obtaining a factual and truthful account of the event from him, given thatamnesia for the events underlining the criminal charge will not, by itself, render an accused "unable to communicate with counsel.”[Emphasis in original] The Evidence [17] Prior to hearing from the doctors, Beverly Thompson, the accused’s younger brother testified.

Beverly recently turned 69. He isa retired plumber. He has given his older brother a lot of his time in the past year taking him to doctors and lawyers appointments. While Wayne Thompson lives on his own, his brother feels that he doesn’t live “very good” (sic) as his house is a mess, he drinks wineand his habits have deteriorated.

He does not do his own laundry and is having his grocery shopping done for him by the husband of hisdeceased partner’s sister. [18] Beverly feels that his brother’s memory is deteriorating and he is sometimes confused about locations, thinking that he is in adifferent hospital or clinic than the one he has been brought to. He will sometimes confuse a scheduled appointment with a doctor andthink that the appointment is for a meeting with his lawyer. [19] Since his brother has short term memory problems Beverly feels there is no point in reminding him too far in advance ofupcoming appointments.

So, for example, he will call him and remind him about an appointment and tell him to be ready to be pickedup in 20 minutes. Despite his short-term memory issues, his brother does seem to recall his prostate cancer appointments. Beverly saidthat his brother’s memory for past events was intact and that he can recall events from their childhood but that his ability to retaininformation is poor so that he can only remember recent events for a few minutes. [20] Beverly Thompson testified that his brother is completely opposite to what he was like 10 years earlier.

The changes in hisbrother first became noticeable about four years ago. His house became messy and his dress sloppy; he began to eat poorly and drink toomuch. [21] Despite these concerns about his brother’s ability to care for himself Beverly said that no one in the family is following theaccused’s prostate cancer treatments, other than taking him to his doctor. Beverly said that what he notices most about his brother is hisinability to remember his future appointments because that is the area that he helps his brother with.

The Expert Evidence [ 22 ] Dr. Pallandi outlined his approach to conducting a fitness interview. After appropriate cautions and warnings about the potential dissemination of the information he was collecting he proceeds to obtain demographic data and tombstone data ( my word ), including educational accomplishments of the subject. In addition he asks questions to screen the subject and his family for mental health concerns and substance abuse, together with questions about the subject’s medical and legal history. He then moves on to inquire into the subject’s emotional, cognitive and memory functioning.

That assessment, when time and circumstances permit, includes the administration of a Folstein Mini-Mental Status (FMMS) examination, which is a screening tool designed to assess the subject’s level of cognitive and intellectual functioning. [4] [ 23 ] The FMMS accesses a number of functional domains including: memory, concentration, abstraction, language use and orientation. A perfect or near perfect score signifies the absence of any cognitive issues. Using it repeatedly over time allows one to assess whether the subject’s cognitive functioning has changed. However, Dr.

Pallandi was anxious to note that the FMMS is not a stand-alone instrument but, nonetheless, it can point to areas that are problematic for the subject. [ 24 ] Dr. Pallandi was struck by the gaps in Mr. Thompson’s memory. Despite Mr. Thompson’s lack of recall during their conversation and despite saying some things that did not “jive” when Dr. Pallandi administered the FMMS to Mr. Thompson on December 29, 2009, Mr. Thompson scored 28 out of a possible 30 points. Dr. Pallandi interpreted this score as demonstrating a very minor degree of functional impairment.

However, when he administered the same test on March 14, 2011, Mr. Thompson’s score was 24 out of 30. This decreased score may be evidence of a longitudinal deterioration in Mr. Thompson’s cognitive abilities, although Dr. Pallandi fairly observed that it is not unusual for a subject’s score to fluctuate in both directions on repeated administrations of the test. Moreover, if the result is indicative of a cognitive decline, such declines often appear “saw-toothed” when graphed. [ 25 ] According to Dr. Pallandi, there were a number of factors that may account for Mr.

Thompson’s poorer performance on the FMMS including his use of alcohol and his prostate cancer. Notwithstanding, this result demonstrates that Mr. Thompson is showing signs of a declining capacity for concentration and the exercise of abstraction, although his language skills and his capacity for repetition remained reasonably well preserved.

He did demonstrate problems with his memory and he was clearly confused about some aspects of “orientation.” He said it was November when it was March, so he had the season wrong; he picked the date as being the 20 th and it was the 14 th ; and, he said he was at the Henderson Hospital, which is in Hamilton, when the test was being conducted at CAMH, in Toronto. These errors amounted to serious problems in Dr. Pallandi’s opinion. Likewise, Mr. Thompson could not recall Dr. Pallandi’s name or his position halfway through the interview, despite both pieces of information having been given to Mr.

Thompson, initially. [ 26 ] Turning to the specifics of the Criminal Code test for being unfit to stand trial, Dr. Pallandi found that Mr. Thompson could articulate most of the technical or what Dr. Pallandi called the “mechanistic” aspects of fitness; viz the pleas available, what an oath was, what perjury was, the roles of the officers of the court, and the possible outcomes of a trial. He had some difficulty recalling and accepting the nature of his charges. Nonetheless, Dr. Pallandi did not dispute that Mr.

Thompson had the intelligence and cognitive wherewithal to distinguish between the pleas available to him and to understand the nature or purpose of the proceedings, including the respective roles of the judge and counsel. He understood, at least “hypothetically” (sic) the import of the proceedings. Despite all of that Dr. Pallandi was of the opinion that Mr. Thompson would be unable, by virtue of his mental disorder (namely, a progressing dementia manifesting itself in a cognitive decline as described previously), from instructing counsel and from communicating with counsel. [ 27 ] Among other domains Dr.

Pallandi characterized Mr. Thompson’s capacity for memory as fragile and patchy, noting that his capacity for memory could vary from moment to moment. As a result, Mr. Thompson would present a challenge to his counsel since Mr. Thompson’s level of functioning would make it hard for counsel to conduct a defence. This would especially be so in a case where the allegations are said to have occurred more than 30 years ago. Additionally, it was Dr. Pallandi’s opinion that Mr. Thompson would not have the cognitive ability to follow the evidence, recount it and discuss it with his counsel. It was Dr.

Pallandi’s opinion that Mr. Thompson would be unable to recount the facts from years ago and that, when his failing memory is taken together with his other deficits, his cognitive functioning puts him below the minimum level that would permit him to be described as fit to stand trial. In essence, although he did not use these precise words, Dr. Pallandi’s opinion was that Mr.

Thompson is, on account of his mental disorder, unable to be intellectually, linguistically and communicatively present at his trial and that he would be unable to partake to the best of his natural ability in his full answer and defence to the charges against him. [ 28 ] Dr. Pallandi’s opinion did not change despite an aggressive cross-examination by Ms. Nickel. Although Ms. Nickel obtained an admission from Dr. Pallandi that much (though not all) of his conclusions were based upon self-reports from Mr. Thompson, the Crown’s suggestion that Mr. Thompson might be malingering was not accepted. Indeed, Dr.

Pallandi’s riposte was that he saw no malingering in Mr. Thompson and neither did Dr. Chaimowitz. Further, Dr. Pallandi maintained that the similar FMMS results obtained in his March 14 th examination and Dr. Chaimowitz’s March 15 th examination are compelling evidence that Mr. Thompson is not cognitively intact. Finally, Dr. Pallandi’s concern, that Mr.

Thompson would be unable to follow the evidence and comment on it, was not allayed by the prospect that the Crown’s case-in-chief might be introduced through s. 715.1 recordings, which could be replayed and paused during consultations with his counsel. [ 29 ] Despite all of these concerns Dr. Pallandi did concede in cross as he effectively admitted in-chief that Mr. Thompson was “technically fit” subject to the caveat that he did not easily or correctly recall all of his charges. Notwithstanding, it was Dr. Pallandi’s consistent opinion that Mr.

Thompson’s failing capacity for memory made this technical knowledge and ability to talk about the court process and the parties to it a mirage of fitness [5] since, he would be unable to utilize that knowledge in any effective way, that is to say, he would be unable to communicate with counsel. [ 30 ] Dr. Chaimowitz’s opinion was to the opposite effect despite his approach and observations being markedly similar to those of Dr. Pallandi. As noted above, he saw Mr. Thompson on March 15, 2011, which was the day after Dr. Pallandi saw him. Dr. Chaimowitz provided the same kind of cautions to Mr. Thompson as Dr.

Pallandi. In addition, he advised Mr. Thompson that he was conducting his fitness examination by court order. Having spoken with Mr. Thompson’s brother and with Mr. Farrell, Dr. Chaimowitz asked Mr. Thompson to update him on his life and how things were going.

Mr. Thompson did not volunteer and perhaps did not recall his prostate cancer until reminded of it by Dr. Chaimowitz. Like Dr. Pallandi, Dr. Chaimowitz also did a mental status examination of Mr. Thompson to screen out or identify any active mental illness. Dr. Chaimowitz also performed a Folstein Mini-Mental Status examination, on which Mr. Thompson scored 25 out of a possible 30 points. This was very close to the 24½ points that Dr. Pallandi had Mr. Thompson scoring the prior day. [ 31 ] Dr. Chaimowitz asked Mr.

Thompson questions about his upcoming court date and the litany of inquiries required on the issue of fitness; viz charges, roles of the officers of the court, the pleas available, the potential outcomes and consequences, the meaning of an oath and perjury. Dr. Chaimowitz’s opinion was that Mr. Thompson’s answers to these questions demonstrated that he was fit to stand trial. His face-to-face interview with Mr. Thompson lasted for about an hour and during the clinical assessment portion of the interview Mr.

Thompson was alone in the room without outside support. [ 32 ] Their discussion included references to current events. Dr. Chaimowitz noted that Mr. Thompson was aware of the tsunami that had inundated Japan. In particular, Mr. Thompson knew the, then current, estimated death toll as contained in news media for that day and that Reactor No. 4 was in serious jeopardy. On the other hand, as noted above, Mr. Thompson did not volunteer information about his cancer until he was prompted to discuss it. [ 33 ] Dr. Chaimowitz was of the view that while his opinion differed from that of Dr.

Pallandi, the clinical presentation of Mr. Thompson was, relatively speaking, similar for both despite each differing in their respective

interpretations of their observations. They differed to some extent in approach. Dr. Chaimowitz would prompt Mr. Thompson if he could not or did not spontaneously offer a response to a question or area. Dr. Pallandi did not do that. A further difference between their interviews was that Mr. Thompson was able to relate the charges alleged against him much better to Dr. Chaimowitz than he had been able to do the prior day. Mr. Thompson knew that he was being charged with allegations of sexual impropriety although he got the number of counts wrong.

He believed he was only facing four charges and not the nine now before the court. Dr. Chaimowitz noted that at one time in the course of this prosecution one information did, in fact, only contain four counts. Further, Dr. Chaimowitz said that Mr. Thompson blushed as he discussed what he was charged with and Dr. Chaimowitz inferred that Mr. Thompson was displaying a sense of shame at the allegations. [ 34 ] While Mr. Thompson was mistaken about the total number of charges he was aware of the names of some of the complainants and when Dr.

Chaimowitz inadvertently transposed the surnames of two of the complainants, Mr. Thompson was able to and did correct the doctor’s naming error. As a matter of policy and so as not to trench on solicitor and client discussions, Dr. Chaimowitz did not ask Mr. Thompson to give him his view of the allegations or to comment on the propriety of the charges having been laid. As a result, in cross Mr. Darroch suggested that Dr. Chaimowitz’s opinion suffered by not engaging Mr. Thompson in a test of his ability to discuss the substance of the allegations.

Nonetheless, based upon the totality of his observations and examinations Dr. Chaimowitz’s opinion was that on the day that he examined Mr. Thompson, Mr. Thompson was fit to stand trial. Indeed, Mr. Thompson told Dr. Chaimowitz that he would not be going to jail because he would commit suicide rather than endure a jail sentence. [ 35 ] Dr. Chaimowitz agreed that Mr. Thompson is suffering the effects of cognitive decline that is not merely insignificant so that he is not functioning at the level one would expect for a man with a university education who spent his working career as a teacher.

However, his level of impairment was not so great as to make him unfit to stand trial. In Dr. Chaimowitz’s opinion Mr. Thompson can communicate with counsel as required by Taylor and Morrissey despite fluctuations in the behavioural expression of his dementia. [ 36 ] In the face of a focused and detailed cross-examination, that covered and challenged both aspects of the particulars reported by Dr. Chaimowitz and his method of examination, Dr. Chaimowitz maintained his opinion that Mr. Thompson was fit to stand trial. Moreover and contrary to Mr. Darroch’s suggestion, Dr.

Chaimowitz testified that this was not a close call. Notwithstanding the orientation errors picked up by the FMMS, Dr. Chaimowitz opined that Mr. Thompson’s understanding is substantial enough and nuanced enough to be able to communicate with counsel. Based upon his mental status in general and on the totality of his presentation, Mr. Thompson was, on the date of his examination, fit to stand trial. Decision [ 37 ] Two eminent experts have come to radically opposite positions based upon substantially similar evidence. Both doctors are credible, indeed impressive witnesses.

Both doctors marshal the evidence that they have relied upon in a compelling fashion. The major point of departure between them is the extent to which Mr. Thompson’s admitted cognitive decline from a progressing dementia will interfere with his ability to communicate with counsel. [ 38 ] Dr. Pallandi’s concerns also include Mr. Thompson’s failing memory. He believes that Mr. Thompson’s memory issues will make it very difficult for him to instruct counsel. Dr. Chaimowitz identified a more current and subsisting memory for the allegations than Dr.

Pallandi saw but neither psychiatrist attempted to delve into the actual extent of Mr. Thompson’s recollections about the named complainants or into any associations they shared.

In addition, as explained in Morrissey amnesia of the critical events giving rise to an allegation will not per se amount to trial unfitness; i.e., the test for trial fitness does not extend to or require that an accused be competent to testify about the critical events of the charge and relate those critical events to his counsel. [ 39 ] Given the test for fitness as described and explained earlier in these reasons at paragraphs [12] to [16] it is my view that, at the end of the day, the scales remain balanced at best, or perhaps at worst depending upon one’s perspective.

Despite the intellectual decline that Mr. Thompson is suffering I cannot find that it is more probable than not that: • Mr. Thompson cannot understand the evidence that is to be given by various witnesses so that he can confer with his counsel and give instructions; • does he does not have the mental capacity to instruct his counsel upon the evidence in order to make full answer and defence to the charge; • is he unable to understand advice given by his counsel and to reach a decision as to whether he should or should not testify;

• does his mental condition prevents his counsel from obtaining a factual and truthful account of the event from him, given that amnesia for the events underlining the criminal charge will not , by itself, render an accused "unable to communicate with counsel. The result is that the presumption has not been displaced and so I find Mr. Thompson fit to stand trial. All of that having been said, I hasten to note that my decision on Mr.

Thompson’s fitness to stand trial can be revisited at any time before verdict, either upon the application of counsel or as a result of my own concerns on the issue, should they arise. Dated at St. Catharines this 8 th day of April 2011 _____________________________ J.S. Nadel (O.C.J.)