Her Majesty the Queen - v. -, 2011 SKPC 128

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 128 Date: August 8, 2011 Information: 36876695, 32978170 , 33383072 , 36877789 , 42402016 , 43397108, 36878902 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrew Joseph Proulx Appearing: D. Black For the Crown S. Kozakavich For the Accused JUDGMENT S. P. WHELAN , J I Introduction [ 1 ] A fitness hearing was conducted. Mr. Proulx has been seeing a psychiatrist for many years and over that time has acquired a

criminal record and has been sentenced to community based sentences as well as incarceration. Over a six month period, during the course of a number of his earlier appearances on these charges, three different judges ordered psychological and psychiatric assessments. The psychological assessment received by the Court was ordered at the time that guilty pleas were entered with respect to six of the eight charges. This assessment placed Mr. Proulx’s full scale IQ at 44 and his working memory at the .1th percentile.

On the basis of this report, this Court ordered a psychiatric report to assess fitness to stand trial. The information and opinions expressed in the two reports caused this Court, on its own motion, to direct an inquiry into fitness. [ 2 ] Both the Crown and Defence took the position that Mr. Proulx is fit to stand trial. At the hearing an Agreed Statement of Facts was jointly filed with the intention that it establish a prima facie case. Crown and Defence also filed a one page document which contained the observations of four peace officers, pertaining to Mr.

Proulx’s apparent understanding at the time of arrest. Only the examining psychiatrist was called to testify at the fitness hearing. The assessment of cognitive ability by the psychologist and psychiatrist raised questions concerning all three aspects of the fitness test found at s. 2 of the Criminal Code : whether on account of a mental disorder he is able to: (

a) understand the nature or object of the proceedings, (

b) understand the possible consequences of the proceedings, or (

c) communicate with counsel? Mr. Proulx was found on a balance of probabilities to be unfit to stand trial. Several issues were raised during the course of proceedings which are set out below. Contents Page I Introduction 1 II Charges 3 III Background of Court Appearances 3 IV Evidence 8 V Argument 24 VI Discussion of the Law and the Issues 26

a) Directing an inquiry into fitness to stand trial 26

i) Jurisdiction after a guilty plea 27 ii) How should the discretion be exercised? 28

b) In determining whether an accused is fit to stand trial, what weight if any should be given to: wishes of the accused, the nature of the offences, the existence of a criminal record, the entry of guilty pleas, or possible dispositions if found to be unfit? 31

c) Applying the fitness test 35

i) Understanding the nature or object of the proceedings 43 ii) Understanding the possible consequences of the proceedings 43 iii) Communicating with counsel 43 VII Conclusion 45

a) Alternative approaches 45

b) Decision 47

i) Understand the nature or object of the proceedings 47 ii) Understand the possible consequences of the proceedings 47 iii) Communicating with counsel 48

II Charges [ 3 ] Mr. Proulx was charged with eight offences contained in seven Informations between April 3, 2008 and May 9, 2009. All but two of the guilty pleas were entered February 19, 2009 and at that time the Court ordered a psychological assessment. The last two guilty pleas were entered, subject to the Court’s findings, at the fitness hearing on April 27, 2011:

i) Theft under $5,000.00 - offence date - April 3, 2008 - Information #36876695 - guilty plea - February 19, 2009 - Crown proceeded by way of indictment. ii) Failure to attend court - offence date - May 21, 2008 - Information #32978170 - guilty plea - February 19, 2009. iii) Theft under $5,000.00 - offence date - August 6, 2008 - Information #33383072 - guilty plea - February 19, 2009. iv) Theft under $5,000.00 - offence date - September 13, 2008 - Information #36877789 - guilty plea - February 19, 2009.

v) Attempted theft under $5,000.00 - offence date - December 5, 2008 - Information #42402016 - guilty plea - April 27, 2011 - subject to Court’s decision. vi) Possession of stolen property under $5,000.00, and vii) Breach of undertaking - keep the peace and be of good behaviour - offence date - December 18, 2008 - Information #43397108 - guilty plea - February 19, 2009. viii) Theft under $5,000.00 - offence date - May 15, 2009 - Information #36878902 - guilty plea - April 27, 2011 - subject to Court’s decision.

III Background of Court Appearances [ 4 ] Information #36876695, concerning a theft under on April 3, 2008, was first in time. This Information and those that followed bear a total of 32 court appearances, set out below. (Arrests have been bolded):

i) April 22, 2008 Mr. Proulx appeared on an Appearance Notice - Information #36876695. Crown proceeded by way of indictment. ii) May 12, 2008 Adjourned.

iii) May 21, 2008 - Failure to appear - bench warrant issued - Information #32978170. - June 22, 2008 - Arrest on bench warrant - released by an officer in charge on a $300.00 recognizance to appear in court July 9, 2008. iv) July 9, 2008 Mr. Proulx appeared on two Informations: #36876695 - Theft under on April 3, 2008, and #32978170 - Failure to attend court on May 21, 2008.

He has a letter from Legal Aid, requesting an adjournment to August 27, 2008. - August 6, 2008 - Arrest on a charge of theft under and released by an officer in charge on a $500.00 recognizance to appear August 20, 2008 - Information #33383072 sworn August 7, 2008. Condition not to go to Mulberry’s Lounge - place of the alleged theft.

v) August 20, 2008 First appearance by Mr. Proulx - Information #33383072 - theft under on August 7, 2008. Adjourned to August 27, 2008, a date already set on the previous matters. vi) August 27, 2008 Three Informations before the court: #33383072 - Theft under on August 7, 2008, #32978170 - Failure to attend court on May 21, 2008, and #36876695 - Theft under on April 3, 2008. Defence Counsel appeared, Mr.

Proulx did not, and a bench warrant was held to September 30, 2008. - September 13, 2008 - Arrest on a charge of theft under and released by an officer in charge on a $500.00 recognizance - Information #36877789. vii) September 30, 2008 Mr. Proulx appeared with Counsel on three Informations: #33383072 - Theft under on August 7, 2008, #32978170 - Failure to attend court on May 21, 2008, and #36876695 - Theft under on April 3, 2008. Adjourned. viii) October 16, 2008 Mr. Proulx appeared with Counsel on the above named three Informations. Adjourned.

ix) October 29, 2008 Counsel appeared on the above named three Informations, Mr. Proulx did not and a bench warrant was held to November 27, 2008.

x) October 30, 2008 Mr. Proulx appeared on Information #36877789 - Theft under on September 13, 2008 and #33383072 - Theft under on August 7, 2008, #32978170 - Failure to attend court on May 21, 2008, and #36876695 - Theft under on April 3, 2008. Adjourned to November 27, 2008. xi) November 27, 2008 The Court ordered an assessment by Dr. Nicholaichuk. A plea has yet to be entered.

This report was not received by the Court. - December 5, 2008 - Arrest - Attempted theft - arrested at the scene - 1:18 pm - appeared before a justice of the peace 9:52 pm - released on an undertaking with conditions: keep the peace - appear in court, first appearance December 30, 2008 - not go to victim’s business - appear for purposes of identification. Information #42402016. - December 18, 2008 - Arrest - charges of possession of stolen property and breach of undertaking - released by an officer in charge on a recognizance to appear January 21, 2009.

Information #43397108. xii) December 30, 2008 First appearance on Information #42402016 - Attempted theft under on December 5, 2008. Mr. Proulx did not appear and a bench warrant issued. xiii) January 21, 2009 First appearance on Information #43397108 - 2 charges of possession of stolen property and Breach of undertaking on December 18, 2008. Mr. Proulx did not appear. Bench warrant held to January 29, 2009. xiv) January 29, 2009 Mr.

Proulx appeared on five Informations: #43397108 - 2 charges of possession of stolen property and breach of undertaking on December 18, 2008, #36877789 - Theft under on September 13, 2008, #33383072 - Theft under on August 7, 2008, #32978170 - Failure to attend court on May 21, 2008, and #36876695 - Theft under on April 3, 2008. Information #42402016 - Attempted theft on December 5, 2008 - not before the court again until April 21, 2009.

Adjourned for plea. xv) February 19, 2009 Guilty pleas were recorded on all pending Informations, but #42402016.The judge recording the guilty pleas ordered a psychological assessment. Endorsement notes: Mr. Proulx seeing a psychiatrist - suggested writer contact Community Living to set up an appointment. Adjourned for sentencing.

Dr. Helmer’s psychological report was received March 24, 2009. - May 15, 2009 - Arrest on charges of theft under and breach of undertaking - released on a $500.00 recognizance with conditions: appear in court - first appearance June 2, 2009 - not to go to victim’s business. xvi) April 21, 2009 First appearance - Information #42402016 - Attempted theft on December 5, 2008 - having been arrested on a bench warrant issued December 30, 2008, (see above) and released by an officer in charge on a $500.00 recognizance. Adjourned to April 23, 2009 for plea. xvii) April 23, 2009 Adjourned for sentencing.

Endorsement note: Defence to speak to Dr. Prasad. xviii) May 14, 2009 Adjourned for sentencing and plea. - May 15, 2009 - Arrest - Information #36878902 for theft under and breach of undertaking - released on $500.00 recognizance with conditions: appear in court, first appearance June 2, 2009 - not to go to victim’s address. xix) June 2, 2009 All Informations before the court. Endorsement: court ordered a psychiatric report to determine if accused is fit to stand trial - psychiatric report to be conducted by Dr. Mela.

Adjourned for receipt of report, sentencing and plea. xx) June 17, 2009 Endorsement: Defence looking into sources of information regarding maternal drinking. Attendance waived. xxi) June 24, 2009 Adjourned for sentencing and plea. Attendance waived. July 14, 2009 - Dr. Mela’s July 7, 2009 report received by the court. xxii) August 4, 2009 Adjourned for sentencing and plea. Attendance waived. xxiii) August 25, 2009 Endorsement: Crown and Defence to advise of position on fitness. Adjourned for sentencing and plea. Attendance waived. xxiv) September 10, 2009

Court directed a hearing into the issue of fitness. Set for hearing June 24, 2010. Endorsement: Case management date to be obtained - Defence to confirm Dr. Mela’s availability. Bench warrant held to June 24, 2010. xxv) May 4, 2010 Case management conducted - Crown and Defence to proceed with prima facie case. Crown not prepared to proceed with an agreed statement of fact given issue as to ability to give instructions. Fitness hearing to follow. Crown to confirm ability to present a prima facie case by June 4, 2010. xxvi) June 24, 2010 Hearing did not proceed. Defence Counsel unavailable for personal reasons.

Adjourned. Attendance waived. xxvii) August 11, 2010 Adjourned. xxviii) September 14, 2010 Second fitness hearing set for April 27, 2011. Case management February 4, 2011. xxix) February 4, 2011 Case management. xxx) April 27, 2011 Fitness hearing commenced. Counsel file an Agreed Statement of Facts to establish a prima facie case. Evidence completed. Adjourned to consider if Exhibit P-2 may be filed as a full exhibit. xxxi) May 17, 2011 Exhibit P-2 admitted. Argument heard. Adjourned for decision to July 18, 2011. xxxii) July 15, 2011, brought forward at Court’s request to adjourn for a week.

Adjourned to August 8, 2011. [ 5 ] All but one of the seven Informations before the Court were sworn between or in the months of April and December 2008. Each of the six recognizances, bear Mr. Proulx’s name printed at the bottom where the “X” would indicate his signature. The recognizance in Form 11 is 8 ½ by 14 inches densely printed and written in French and English.

It repeatedly calls upon the person being released to sign their name, indicating an understanding and acknowledgment of the obligations imposed. [ 6 ] Pains have been taken to outline the nature of the 32 appearances on these matters; but not to place blame on any one or more participants in the justice system. There are any number of good reasons for many of the adjournments, including that the first date for hearing set September 24, 2009 for June 10, 2010 spelled an 8 ½ month delay and the second hearing date, set September 14, 2010 was for April 27, 2011, a delay of more than 6 months.

Trial delay has become much more manageable in this Court in Saskatoon since that first trial date was set and with it counsel’s availability. Taken as a whole the number of adjournments and the length of time that has passed is unsatisfactory and is not typical to the experience with most matters in the Provincial Court in Saskatoon. Quick resolution is a goal, appropriate to all matters prosecuted in the justice system. This goal is particularly important when working with someone who suffers from significant cognitive impairment such as Mr. Proulx.

If, when he appeared on his own behalf, it was with the assistance or in the company of support persons, the record does not reflect it. It does seem however, that his challenges might have been identified much earlier on and steps might have been taken to approach his situation with greater coordination and planning. This will be discussed further below under the heading: Conclusion.

IV Evidence [ 7 ] The Crown and Defence filed two documents: i. An Agreed Statement of Facts, dated April 27, 2011, Exhibit P-1. ii An untitled document, containing additional information from police officers regarding Information numbers: 43397108, 42402016, 36878902, and 36877789, Exhibit P-2. [ 8 ] Exhibit P-1, the Agreed Statement of Facts, and Exhibit P-2, the untitled document containing additional information from police officers, were considered together. The Agreed Statement of Facts, which provides

summary information was filed to support a conviction with respect to each of the charges before the Court. Exhibit P-2, provides impressions regarding Mr. Proulx’s understanding concerning the following four incidents. #3687789 concerned a September 13, 2008 charge of theft of a purse from a woman who was sitting on her porch. Arrested a short time later in a neighbour’s yard he told the police he’d put the purse in a trash can. The arresting officer opined that Mr. Proulx had the capacity of a 5 year old and he modified the information pertaining to rights and warnings accordingly. Mr.

Proulx acknowledged stealing the purse but didn’t know why. He spoke to a lawyer at the police station. # 42402016 concerned the December 5, 2008 incident of attempted theft. According to the Agreed Statement of Facts, he was found in the office of the manager of a Shoppers Drugs rummaging through the office and attempting to take personal items belonging to people who worked there. According to the arresting officer, who was aware that Mr. Proulx may have some sort of mental disability, he had a fluent conversation with him during which time it was apparent to the officer that Mr.

Proulx was aware of what was going on around him and of the seriousness of the offence. # 43397108 concerned the December 18, 2008 offences of possession of stolen property and breach of probation. Mr. Proulx took two wallets, one from the room of a patient and another from an employee in a hospital. The Agreed Statement of Facts indicated that he admitted having taken the wallets and assisted in the recovery of the wallets from where he had put them, in a garbage can. According to the officer, Mr. Proulx had difficulty immediately locating the garbage cans where he had hidden the wallets.

He said he took the wallet because he needed money for cigarettes. When read his rights to counsel, he said he understood, asked to speak to a lawyer, and did speak to a lawyer in detention. He expressed concern over what would happen to him as a result of the charges. # 36878902 concerned the May 15, 2009 incident of theft under of money at an insurance office. He was seen loitering near a table where a bank deposit was sitting. He left the office and was then quickly detained by staff. While waiting for the police to arrive he asked to use the washroom.

The staff found the money where he had placed it in a garbage can. The arresting officer read him his rights and he said he understood and asked her questions about what would happen to him. He said he wanted to speak to a lawyer and did in fact speak to one. He said he wanted money for cigarettes, coffee and a dinner and he was repeatedly apologetic. [ 9 ] The Defence filed the criminal record and it was marked as Exhibit D-1. There are material differences between the CPIC and local criminal records filed as Exhibit D-1. Both were admitted and the following is a compilation of both records.

The local record discloses that charges have been stayed or withdrawn from time to time. Mr. Proulx has been sentenced to incarceration on five occasions. He was twice sentenced to 30 days incarceration followed by probation and three times he received sentences of time served. The lengths of the time served were not specified.

Date Charge Sentence Feb 21/90 Theft under Conditional discharge & probation 3 months Nov 13/90 Theft under Suspended sentence & probation 9 months Jan 16/92 Theft under Public mischief Suspended sentence & probation 9 months on each May 12/92 Theft under Time served June 4/92 Breach of probation Theft under Assault $30.00 Fines on each Mar 4/93 Uttering forged document 3 Thefts under 2 Assaults Breach of probation Fail to comply Time served & probation 1 year on each June 17/93 2 Thefts under Failure to comply Fine & probation 1 year on each Aug 31/93 Theft under 2 Breaches of probation 30 days concurrent on each Jan 11/94 Break & enter & theft Breach of probation 30 days & probation 9 months Mar 10/94 Theft under 2 Breaches of probation Time served [ 10 ] The Court received the following exhibits, marked as Court Exhibits: Psychiatric report of Dr.

Mansfield, dated July 7, 2009 - Exhibit C-1 Curriculum Vitae of Dr. Mansfield - Exhibit C-2 Psychological report of Dr. Helmer, dated March 23, 2009 - Exhibit C-3 [ 11 ] The Court left it to Counsel, albeit it was discussed in case management, to decide upon the witnesses to call. Dr. D. Helmer was not called to testify. His report provided pertinent information regarding Mr. Proulx’s overall intellectual ability, attention, distractibility, and disinhibition: Mr. Proulx’s overall intellectual ability was measured as within the extremely low range (FSIQ=44, < .1th percentile).

Calculated index score results were: verbal comprehension < .1th percentile, perception reasoning .4 th percentile, working memory .1th percentile, and processing speed 8th percentile. . . .

This data suggests that Mr. Proulx’s intellectual function is at the “basement” of cognitive functioning. Attention was assessed on the GDS vigilance and distractibility conditions. These data suggest that ninety-nine percent of his age matched peers were able to sustain attention better than he was. Similarly, on the distractibility condition, ninety-nine percent of his age matched peers were less distractible than he was. . .

Practically, this meant that he would have tremendous difficulty sustaining attention, that he would typically be very distracted by extraneous environmental stimuli, and that he was very disinhibited. [ 12 ] Dr. Helmer measured Mr. Proulx’s working memory: . . . Working memory was also measured as impaired on the WAIS-IV (VM index .1th percentile). [ 13 ] Dr. Helmer discussed Mr. Proulx’s difficulty with learning, including long-term retention of verbal information and visual information storage and the implications for “forgetting”: Mr.

Proulx’s ability to learn was measured as 2.5 standard deviations below his age matched peers (CVLT-II). There was no long-term retention of verbal list information (-3.5 s.ds.) and with cuing the results were no better (-4.0 s.d.s). This meant that there was significant forgetting. Practically, Mr. Proulx would be a “hands on learner”, and would require referent materials to direct his behaviour. The other important implication would be that automating behavioural routines would be important. Overall there appears to be problems with verbal information registration, storage, and retrieval.

Visual information storage on the figure copy task of the NAB was also impaired (< 1 st percentile on copy and immediate recall conditions). [ 14 ] In his

summary, Dr. Helmer noted that his behaviour is highly focused on obtaining cigarettes, candy and coffee. He provided recommendations:

Summary and Implications . . . His behaviour is highly focused on attaining the reinforcers of cigarettes, candy, and coffee. These theft behaviours, in a very highly structured setting, could likely be managed on a tightly managed contingent reward system. Recommendations . . . 2. Behavioural therapy with reward contingencies, in a highly managed setting, would be the treatment of choice in this case. . . . 4. It is unlikely that incarceration would assist with this situation because of Mr. Proulx’s cognitive status, treatment needs, as well as his vulnerability as a person. [ 15 ] Since 2000, Dr.

Mela has been the consultant psychiatrist to the Correctional Services of Canada - Regional Psychiatric Centre (Prairies). He is one of two psychiatrists who are members of the Saskatchewan Review Board, established pursuant to the Criminal Code of Canada . His curriculum vitae discloses further qualifications, experience, published papers, and activities including: 2000 - Master in Psychiatry (MSc.

Psych) University of Wales, Cardiff, U.K. 2004 - Certificate of Forensic Psychiatry, Fellowship Training, University of Ottawa 2004 - Fellow in Forensic Psychiatry, ROH Ottawa, ON 2006 - Accommodating fetal alcohol spectrum disorder in the DSM V. International Journal of FAS, 4; e23: 1-10. 2008 - Vice President of the Canadian Academy of Psychiatry and the Law

[ 16 ] Dr. Mela’s 13 page report is thorough. He listed the information available to him regarding Mr. Proulx’s charges and functioning, including: Dr. Helmer’s report, extensive discussions with Dr. Prasad, his previous psychiatrist for approximately 12 years, Mr. Lane Carrick, his then group home caregiver with whom Mr. Proulx spent a significant amount of time during the last 30 years, and Mr. Alan Clark, his case manager for eight years at Community Living Division. His interview with Mr. Proulx in preparation for the report lasted about three hours. [ 17 ] Dr.

Mela organized his report under a number of headings, and with respect to his current psychiatric presentation, wrote after reviewing Dr. Helmer’s psychological report regarding his intellectual functioning at page 4: Intellectual Functioning Mr. Proulx has been known to have difficulty following direction and remembering things adequately. Mr. Proulx behaves in challenging ways that are not premised in logical thinking. He referred to the report of Dr. Helmer including the full scale IQ of 44 and concluded: This essentially equates to a mental age of a 6 year old or so. [ 18 ] At page 10, Dr.

Mela turned to the subject of fitness to stand trial. His remarks were pertinent to all three aspects of the fitness test, the ability or inability to:

a) understand the nature or object of the proceedings,

b) understand the possible consequences of the proceedings, and

c) communicate with counsel. He discussed Mr. Proulx’s understanding of the roles of the protagonists in the courtroom, and his ability to recount the circumstances of the offence, possible pleas and outcomes: Fitness to Stand Trial: Mr. Proulx was asked the role of the various protagonists of the courts. He indicated that the judge in court would ask him what his name is. The judge will also reveal if he was the one and then ask him to go free.

When asked about the defence counsel, he said that the defence counsel’s role was to try to get him to go to court, calls his name and tells him when “to come in or when to go out”. With regards to the prosecutor, he indicated that the prosecutor was there to talk to the judge about what he had done badly and would try to see if he could get a probation order. . . He was asked about what charges he faced. Mr. Proulx indicated that he did not know how many charges he had.

With prompting, he was able to go put the pieces of the account through the understanding that he has been stealing, which he knew was not good. . . He did not seem unwilling to recall but had difficulties putting the piecemeal account together. . . . When asked to give the difference between a guilty and not guilty plea, he indicated that guilty meant “doing things”. He was unable to articulate clearly what not guilty meant but seemed to have the superficial understanding that it meant not doing things.

When asked to describe how he planned to defend himself, he was unable to indicate if he would use a lawyer or if the lawyer had any role when that was brought to his attention. He only said “I don’t want to go to jail”. Mr. Proulx was unable to articulate what a plea bargain or an insanity defence meant. Dr. Mela doubted Mr. Proulx’s ability to provide a narrative of the events with which he was charged: It was difficult to conceptualize him being able to articulate, in a narrative sense, the events that he was charged with.

Given a diminished intellectual functioning, articulation is difficult at the best of times and abstract thinking was not his strength. He concluded that Mr. Proulx was not fit to stand trial: It is, therefore my opinion of reasonable medical certainty that Mr. Proulx is not fit to stand trial. It is also likely that Mr. Proulx’s fitness it not a temporary one. The evidence for this stems from the existence of the long standing chronic maladaptive behaviour pattern that has been based on an intellectual dysfunction. Mr.

Proulx’s current medication may dampen his cognitive functioning but the impact of the mental retardation is sufficient on its own to cause the permanency of his cognitive dysfunction. The impact of very likely prenatal alcohol exposure on the permanency of his mental retardation is equally significant.

[ 19 ] Dr. Mela re-examined Mr. Proulx on April 20, 2011, just days prior to the hearing. He was cross-examined first by the Crown and then Defence Counsel, followed by a questions from the Court. [ 20 ] During testimony regarding intellectual function, Dr. Mela referred to the neurocognitive assessment of Dr. Helmer, noting his full scale IQ of 44: As well one of the areas of importance in his manifestations is his level of intellectual function. The level of intellectual function was assessed based on his history and the neurocognitive assessment that was completed by Dr. Darcy Helmer.

The results are highlighted in my report to show that his intellectual quotient, intelligence quotient, I.Q. is said to be of a full scale of 44. That puts him in the range of moderate mental retardation according to the diagnostic and statistical manual. His manifestations is of simplicity in his approach, lack of comprehension, and significant executive functioning problems. By that I mean, inability to plan, to sequence events, to organize events, were quite noticeable in the assessment. [ 21 ] Dr. Mela examined Mr.

Proulx for fitness to stand trial with the assistance of a fitness interview test device, which he adapted for an interview of someone who suffers from cognitive impairment. He observed that his level of understanding was so simple that there would be problems with his ability to articulate: what happened and his role in it, his understanding of what happens in Court, and instructions to his lawyer: When I specifically focused on the area of fitness I used the framework of a tool known as the fitness interview test device.

While for somebody who is cognitively impaired it’s difficult to follow that framework strictly, I adopted parts of it to answer some of the questions that accesses understandability of the charges, of the consequences, and his ability to instruct counsel. Based on his responses, I interpreted his level of understanding to be such it was so simple that his ability to articulate what he actually did would be problematic in describing, what his role was, in understanding what exactly happens in courts, and also to make his counsel receive the right instructions to act on his behalf . . . [ 22 ] Dr.

Mela acknowledged the role that anxiety played in his responses and moved to a discussion of Mr.

Proulx’s understanding of the roles of the judge, his counsel, and the prosecutor: When he’s asked about the officials that work in court there’s an apparent anxiety that immediately sets in that leads to repeated answers of “I don’t know” but passing that and actually trying to pin him down to the role of the judge, for instance on two different occasions has assumed that the judge’s role was to call him to come to court and whether those decisions in court are entirely made by the judge could not be affirmed by his responses.

When asked about his lawyer, what the role of lawyer is, he indicates, and I quote, “to help other people to get better, not to get worse.” When asked to expand on that he appears to not be able to articulate exactly what the purpose of his own lawyer would be, even though he asserts that he trusts his lawyer. Then when asked about the role of the prosecutor, he says, and I quote, “they are there to help you.” While in an abstract sense that is true, it is my

interpretation that his assumption that everything that happens in court is not adversarially determined falls short in my opinion about his ability to understand exactly what happens in court and the roles of the functionaries of court. [ 23 ] He discussed Mr. Proulx’s understanding of the consequences for his offending behaviour: When I move onto the consequences of his offences there was a challenge in understanding all the things that he was charged with. In a very simplistic way he said he has done lots of bad things. He said he has done lots of stealing and he has set fire.

And then when asked about the outcome of this if found guilty, first and foremost at several times of the interview he would confuse the relationship between admitting guilt and admitting not guilty. Very clearly in my view he was that far from understanding of: what a plea bargain is, despite repeated explanations, of what an insanity defence is, and some of the other things that could be available to him to defend himself.

He also added that all he’s interested in is that he does not want to go to jail.When asked what strategy he would have to employ with his lawyer to make that possible, he didn’t seem to come up with anything that was tangible enough to say that he was aware of the steps to take. [ 24 ] Dr. Mela turned to Mr.

Proulx’s understanding of the role of witnesses: I also asked him about the role of witnesses in the court He indicated that he, and I quote, “what they want is to stop things.” This was very difficult to relate to the question per se and then upon further explanation he indicated that he didn’t know how to confront a witness that could be lying against him.

. . . But what I then did about five days ago, was to try and repeat this test because of the time sensitive nature of fitness and I found that nothing had really improved despite his mental stability in the new place where he’s living and in fact some of the responses seemed to actually give in to the fact that apart from feeling more anxious in responding, I do know he was unable to produce any explanation of what would happen in court and what his like punishment would be. . . .

So it is based on this that I formed the opinion that his understanding of the court processes, the possible consequences and his ability to instruct counsel would fall below the standard that has been set and my opinion with a reasonable medical certainty is that he is unfit to stand trial. Dr. Mela advised that since he was asked to examine Mr. Proulx he has become his patient. [ 25 ] The Crown Prosecutor, Ms. Black, followed with a number of specific questions of Dr. Mela. Q And was he able to provide that information to you in a manner that you could understand?

A In a general sense I would say yes, I mean it wasn’t detailed enough but he gave a coherent in terms of what he does from the morning till he goes back to bed, yes. . . . Q When you spoke to Mr. Proulx about the charges that he’s facing, did you ask him to tell you what he was charged with? A Yes. Q And what was he able to tell you? A If I take the first interview because the charges were quite a number, what he seemed to indicate then was that he had stolen from a pub and he had also stolen from an insurance company. He seemed to have an idea where this was.

Most of this information came with significant prompting and encouragement and reminders because I had already gotten the information from his caseworker. . . . Q Mr. Proulx would be capable of doing that wouldn’t he, if you sat down with him and said, Mr. Proulx on this date someone says you went into an insurance company and you stole money, you could, you could have that conversation with Mr. Proulx? A That’s exactly what I did yes. Q And if you have that conversation with him he can provide you with some information about whether he did or did not do what was said? A Yes. . . . Q . . .

Is there any reason why the court system as it is if it needed to be explained to Mr. Proulx, is there any reason that it couldn’t be explained to him in very simplistic terms? A There’s no reason why it couldn’t. Q And if one spent a sufficient period of time with him he would come to some basic understanding of what goes on in the courtroom?

A I think it would depend on his level of ability to learn, it depends upon his attention, his memory, and his comprehension so for instance for the purposes of what the prosecutor does and what the judge does can be presented to him as information but he has to have the ability to retain that information and recall it at another time which is one of the problems he has cognitively. So for instance I did describe to him at least on two or three different occasions what an oath is and during the same interview about 5 minutes later, I

repeated again, what is an oath, and he wasn’t able to learn that. And the same thing was done again. . . . The question would be whether he has that ability to learn, retain and reproduce the material. Q In terms of his ability to retain the information you were concerned about him retaining it from one visit to you to the next? A That’s correct. Q.

But isn’t it possible that he could retain it for a short period of time, for instance if you spoke with him this morning and explained in very simplistic terms what goes on here and then followed that up with his trial he could likely retain that information long enough to follow it with the trial following right after? A While it is possible that that would happen, based on the results that I have from the neurocognitive assessment, I would defer on the fact that you know, do I actually know how much he is able to retain. Like memory tests that Dr.

Helmer completed put him at actually, I think something like the third percentile and that is really low. And especially with an IQ of 44. . . I can’t tell how long he can retain any information. I mean the test that I did was for immediate recall. So for long term recall we’ll have to see. . . . It should be noted that Dr. Helmer placed Mr. Proulx’s working memory at .1th percentile. Q When you talked to Mr. Proulx about his charges and whether he should plead guilty or not guilty, how did you, what information did you get from him about the meaning of guilty and not guilty?

A. . . . of course the two interviews that we’re referring to. The first one I did refer to in my notes. My sense was that he knew what guilt means and he said “doing it”, “doing something” and not guilty meant. He gave me one answer then I prompted and then he corrected his answer and said “not doing anything”. Now on the 20 th when we talked about guilt. . . the first response, again was I don’t know how. I have to indicate that most times Mr. Proulx says I don’t know. I almost ignore it because I know he’s very anxious so I push a little bit more. But sometimes I still don’t get the right answer.

In fact in this case he again indicated that guilt means “doing something”so there seems to be some understanding of the word guilt and not guilty. [ 26 ] Mr. Kozakavich posed a number of questions. Q From your review of the information or the review of the police reports rather, you’ll note that a lot of the offence dates are from 2008, some almost a year before you did the interview? A That’s correct. Q For somebody with Andrew’s level of intellect or cognitive ability and the memory issues, he would most likely require a great deal of prompting in order to recall those specific events, is that fair?

A That’s fair, yes. Q But if you spent enough time with him on that particular event, he would be able to provide you with some information in relation to it? A With some reconstruction, I’d say yes. Q In terms of his explanation for the stealing, he indicated to you that he does it for money and cigarettes, is that correct? A That’s correct. Q And his primary concern in relation to obtaining money to get cigarettes and I think at some point in time in your report you indicated chicken? A That’s correct.

Q He’s concerned with food or a specific food and cigarettes? A That’s correct. . . . Q In terms of his ability to interact with counsel, I think perhaps what you’re describing is more of an analytical ability in terms of being able to tell the defence counsel what he could or couldn’t do to avoid a certain outcome or to assist himself to a certain outcome? Isn’t that more of an analytical ability than it is simply not understanding the process?

A Based on his level of cognitive functioning and my understanding of him, my question to him was, describe to me what happened and even with prompting, I did not get a description to be able to tell what exactly he did along the way. With prompting you can make some, you can piece things together. This is separate from trying to indicate whether he understands even the consequences of the action, but just a description, I didn’t get that. And that’s usually the test. You describe it to me because that’s the way you’re going to describe it to your lawyer.

Q If in Andrew’s case the incidents when you had reviewed them are well over a year, he’s going to require a significant amount of prompting in terms of dealing with the particular information you’re providing him correct? A I think to some level he needs the prompting but . . . I always go back to the level of cognitive function and he has got an IQ of 44 so I expect a minimum level of requirement to recall that information especially when you keep prompting us.

I get the sense that you know you should be able to recall more than what he is telling me within the interview and that’s how I make my judgment that he’s not able to. . . . [ 27 ] After Counsel concluded their questions, the Court posed a few questions. Q You’ve spoken of reasonable certainty that he’s not fit and the instruction that I get as a judge is that a person is presumed to be fit. Are you aware of that instruction? A Yes, your honour. Q So, I’m trying to marry that level of decision making or opinion that you have with a presumption that somebody’s fit. Are you able to assist me with that?

A My understanding is that first and foremost Mr. Proulx does have a mental disorder recognized by the DSM but there is also an abnormality in his ability to process information, retain information, recall information and be able to, I guess, consider the outcomes of his processing. When I asked him the questions and what I understand fitness to be, that it is based on the balance of probability.

There are certain things that he seems to understand apparently okay but in coming up to the sum total of his responses and in addition to the awareness of his cognitive limitations, I’m left with the fact that it is difficult to say that he will do a good job of putting up a defence for himself, which I thought that’s what fitness means. So when I consider these and most of the people that I interview in this kind of setting Mr. Proulx falls short of those who I would say are fit to stand trial because he has a mental disorder not just because he’s not aware of the court processes.

So there’s a reason for the fact that he’s not able to retain information, he’s not able to recall it, and that’s why I feel he’s from a medical perspective unfit. Q What I’m struggling with is that the report of Dr. Helmer puts his full scale IQ at 44 and yet what counsel seem to be suggesting by their questions is that even with that IQ that he’s got an understanding that’s sufficient for our purposes. Can you give me an idea of what that IQ means in the context of Mr. Proulx and his functioning? A Yes. The psychologists have a way of representing that level of IQ with. . .

They rate it with the level childhood chronological age. In fact Dr. Helmer will say that Mr. Proulx is operating at an age 6 level of cognitive processing. While that’s not a sample of what we use, we do understand that below the IQ of 70 people are recognized as mentally retarded. The second issue is that there are 4 different levels of mental retardation: mild, moderate, severe and profound. From the level of below 70, most people access services because they are not able to independently get after themselves. So when you go lower than 70, close to 44 you’re bordering close to severe.

And in that level, I mean there’s no doubt that one of the challenges with cognitive assessments is that how do you actually translate that into day to day functioning. And there are unfortunately some people who may appear to have a good understanding of

something but generally that level is still impaired. So my assessment of Mr.

Proulx is that his actions, his professed answers, could be interpreted as if he understands what is going on but it’s very difficult to beat an IQ of 44 and assume that he actually understands what is going on because during the interviews I do check-ins with him, for instance I have documented here that I did explain to him what plea bargaining is in very simple terms, using hands to describe it to him and just 3 minutes after I ask him again what it is and I don’t think it’s anxiety because his careworker is there comforting him and he is still not able to recall that.

So yes, things that he has over-learned like walking from home to Cosmopolitan can be described as over-learning. But simple things like coming to court and actually understanding what happened many years ago, my opinion of reasonable medical certainty is that he’s not able to do that. Q Your testimony and the questions have been surrounding the test that I am governed by regarding unfitness to stand trial. I’ve heard you talking about generally this area of understanding the nature or object of the proceedings.

I believe it can be sort of a difficult thing to take that and put it into a concrete example but that’s what I’m trying to ask you now so when you talked about your questions in your interview of him about the role of the participants and the consequences what did that say to you about the understanding, his understanding of the nature or object of the proceedings? A I draw my deductions based on questions and responses so while I can understand other explanations of his responses I have to compare his responses with what is generally seen as the usual responses of most people when you ask them about court.

So for instance it is the understanding that really most people who enter court who will have had a visitation or two, which Mr. Proulx has had several should be able to know that the person who they see visibly is a judge and that a judge’s role is to make the final decisions. Again the role of the defence is seen by most respondents as to be protective of the individual and clearly the prosecutor is usually seen as somebody who is trying to get punishment for the offender.

As well the consequences coming out of it are usually proportionate to the offence so you have to know the level of the offence, what it actually means and what kind of level of punishment would be ascribed to that offence not just the wish of having probation or the wish of not going to jail but it is understood that most respondents realize that there is some range of years that are given for such offences, the more the offences the more the punishment or the more the level of involvement with the court system. So it’s based on the anticipated responses of that, that I make this judgement.

And I also ascribe his cognitive level that because he is simple in his thinking, I’m not talking about analytical, but just being aware of what the court is there to determine and establish that makes me think that he is really sitting in court and not a significant participant of the proceedings against him. . . . Discussion with his counsel; obviously there’s a relationship enhances their discussion with that individual. The better relationship you have the easier . . . the easier it is to relate things to you.

But there’s still some level of intellectual prowess that is required for you to describe something especially something that has happened many years ago, that could make some sense in advancing a defence. Again it is my view that because of his limited ability I did not get the sense that he possessed that capacity of describing things to the point where somebody could use it adequately. Q When you were comparing his responses to the responses of others what, who were the others, what group would that represent? A The others would be what most assessors have assessed in the courts, not just normal people.

These are people who have gone into court for fitness assessment; what are their responses before people, before they are determined or judged by assessors as fit. These are the usual responses that we get. We can capture these by some of the answers you get in the “fit test”, for instance. So an example is that, it’s not just the clinical but research has been done about what are the usual responses that you can take as being adequate to that question or not adequate to the question. So if I can just advance, for instance if I ask you, when the police came to your house, what did they say?

You may be able to tell me, they asked me, “Do I know who lives next door”, which is an appropriate answer. But I’m asking in relation to your charges, what did they say to you? They said, I shouldn’t say anything or else. So the response could be appropriate, or it may be correct but it may not be appropriate for the situation. Q So when you say that you’re comparing it to this other group, you’re relying on research and your experience? A That’s correct.

Q . . . his level of attention and how it may interfere with following what’s going on in the proceedings and I’m wondering if you took that away, if you somehow could accommodate the proceedings so that his attentional problems could be dealt with, slow things down, check to see if he’s following, things like that, if you took that away, would that change your assessment of his fitness? A I would say no for the following reasons. I’m still unfortunately, I have a report that puts his IQ at 44. That is quite significant.

But I also realize the problems of his memory because during the court proceedings apart from attending, there is a requirement for you to recall stored material in the past. And that memory problem in Mr. Proulx’s case has been found to be deficient. Now I did consider the fact that he was 1) on a medication that could affect his memory. That medication has since been stopped and it has not made a difference to his memory.

So based on those and the fact of development and the years that he has spent under supervision, I believe that while accommodation for attention could be made in terms of taking short breaks, improving the medication he’s on, we’re still left with a general cognitive inability to recall material that has been shown by an objective test and a clinical test that I’ve done by asking him to

tell me what I’ve told him 5 minutes ago. So he may be attending but he will not be able to recall. Q . . . If he’s got such a problem with memory how is it that he can say he stole from maybe an insurer or someone’s purse or whatever it was, how can he account for that? A Right. Memory as we understand it right now is guided by a number of things when it comes to recall. You get an information, you store it, you rehearse it, and then you would recall it. And during recall sometimes you can give queues to the individual to help the person to recall.

So I can postulate, I cannot be certain for sure, because this requires individual testing of these three components of the memory that the fact that he hid money somewhere clearly would require some rehearsing. He would have to be recalling because if he’s planning to go back and get it then he has to rehearse it in his head and because you rehearse it many times it becomes learned. Now whether that is something he does in courts probably depends on how serious he takes courts and the rest of it. So memory is not just the fact that you remember one event, you are automatically going to recall the other.

There are different components of memory and the ways of recalling it also vary. There’s things that we call dependent memory. So depending on the situation you are in. So something that happens here will only be recalled when he is in this environment, for instance. So it may be that you take him back to where he offended, he will be able to recall then. So I’m not able to tell what kind of deficiency he has. All I know is that the general memory test is quite deficient. And then when I tested it in my clinic it was also deficient. V Argument [ 28 ] Crown and Defence Counsel relied on the presumption that Mr.

Proulx is fit to stand trial and argued that the evidence does not rebut that presumption on a balance of probabilities. [ 29 ] The Crown argued that Mr. Proulx understands the nature of the proceedings in a rudimentary way and that there was nothing in the evidence to indicate difficulty in communicating with counsel. The Crown maintained that the evidence supported the conclusion that Mr. Proulx was able to communicate, without much prompting, the very nature of the charges that he is facing. Specifically, she pointed to Mr. Proulx’s ability to report to Dr.

Mela that he stole from an insurance company and that he stole a purse. This, it was argued, pointed to an ability to sufficiently remember what he did and to tell his lawyer what he did and did not do. When asked about the ability to instruct counsel as to pleas; she maintained that he need not be able to utter any magic words. It is sufficient if at the end of the conversation his lawyer will feel comfortable with what is the appropriate thing to do. [ 30 ] Defence Counsel argued that once his anxiety is addressed and Mr.

Proulx is comfortable with his environment, he has demonstrated an ability to recount facts about the offences. He asked the Court to make allowances for the fact that Mr. Proulx was having to recount dated offences and to consider his responses in that context. He noted that Mr. Proulx has an appreciation that stealing is wrong and that he fears jail. Further, he maintained that his responses to Dr.

Mela regarding his understanding of the nature or object of the proceedings and possible consequences of the proceedings were consistent with his experience to date in the justice system. [ 31 ] The Crown and Defence expressed concern that Dr. Mela’s approach to examining Mr. Proulx was one which required analytical ability. In this regard Crown Counsel pointed to a number of phrases that Dr. Mela utilized, including his comment about his understanding that he was doubtful that Mr.

Proulx would do a good job of putting up a defence for himself (paragraph 27 above). [ 32 ] Much of Counsel’s arguments were directed at the third aspect of the fitness test, the ability to communicate with Counsel. In this first passage, the Crown misunderstood the amount of prompting required. The Crown maintained: What he was able to tell Dr. Mela, in the Crown’s view, without much prompting was the very nature of the charges which he’s facing. He was able to say that he stole from an insurance company. He was able to say that he stole a purse. And in the Crown’s view that information provided to Dr.

Mela indicates that this gentleman has the ability to remember what he did and to be able to tell his lawyer in a very basic way what he did and what he did not do. [Emphasis added] . . . As the cases indicate, it’s not necessary that the individual be able to make rational decisions about his own defence. . . it’s not necessary that he calls the shots and tells his lawyer what to do. What those cases say is that he must be able to communicate with counsel in a way that will assist counsel in determining what is the right decision to be made in terms of pleas to be entered or trials to be run. . . .

During this argument, concern was expressed that ultimately the decision-making about such matters as plea, must be made by theaccused. The Crown continued: . . . it’s not necessary for Mr. Proulx to be able to say, I want a trial, he need not be able to utter any magic words in making a decision.What is necessary is for him and his counsel to be able to have a discussion, the result of which his lawyer will feel comfortable withwhat is decided to do. [33] The Crown asked the Court to make inferences and consider matters of societal interest in reaching the decision regarding fitnessto stand trial.

They are outlined only briefly now and will be addressed more fully below. - The Court may draw conclusions from the existence of a record beginning in the 1990s, his dealings with police, and Defence Counseland the entry of guilty pleas; that there has been no concerns about fitness to stand trial in the past and that Mr. Proulx has someunderstanding of the court system. - The Court should weigh the minor nature of the offences and possible outcomes if found fit, against the possible outcomes if foundunfit and give effect to Mr.

Proulx’s right to his day in court; stating that it is not in anyone’s interests that he be found unfit. VI Discussion of the Law and the Issues [34] The following cases were considered: R. v. Swain, (SCC), [1991] S.C.J. No. 32 R. v. Whittle, (SCC), [1994] 2 S.C.R. 914 R. v. Demers, 2004 SCC 46 , [2004] 2 S.C.R. 489 R. v. Peepeetch, 2003 SKCA 76 , [2003] S.J. No. 542 (SKCA) R. v. Jobb, 2008 SKCA 156 , [2008] S.J. No. 764 (SKCA) R. v. Trecroce (1980), (ON CA), 55 C.C.C. (2d) 202 (ONCA) R. v. McLeod, Pinnock and Farquharson (1983), (ON CA), 6 C.C.C. (3d) 29, 66 N.R. 309 (Ont.

C.A.), affd as toFarquharson, (SCC), [1986] 1 S.C.R. 703n, 27 C.C.C. (3d) 383n R. v. Steele, (QC CA), [1991] A.Q. No. 240, 36 Q.A.C. 47 R. v. R.T., (ON CA), [1992] O.J. No. 1914 (ONCA) R. v. Taylor, (ON CA), [1992] O.J. No. 2394 (ONCA) R. v. Morrissey, [2007] O.J. No. 4340, 2007 ONCA 770 R. v. G.B., (ON SC), [2003] O.J. No. 784, 173 C.C.C. (3d) 547 (Ont Sup. Court) R. v. Bain, 1994 NSCA 84 , [1994] N.S.J. No. 194 (NSCA) R. v. L.S.C., [2003] A.J. No. 388, 2003 ABCA 105 R. v. Wolfson, (AB CA), [1965] 3 C.C.C. 304, 46 C.R. 8 (ABCA) R. v.

Kolbe (1974), 1974 ALTASCAD 44 , 27 C.R.N.S. 1, [1974] 4 W.W.R. 579 (ABCA) R. v. J.A.P., (SK PC), [2000] S.J. No. 260 (SKPC) R. v. Fontaine, [2003] S.J. No. 685, 2003 SKPC 143 R.`v. Sewap, [2008] S.J. No. 795 (SKPC) R. v. I.B.B., 2009 SKPC 76 R. v. R.C.Mc., [2011] S.J. No. 243, 2011 SKPC 61

a) Directing an inquiry into fitness to stand trial [35] There are several provisions of the Criminal Code pertinent to the decision to direct an inquiry into fitness.

Section 672.22 of theCriminal Code provides for a presumption of fitness: 672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit tostand trial.

Section 2 of the Criminal Code defines “mental disorder” and “unfit to stand trial”: "mental disorder" means a disease of the mind; "unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict isrendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (

a) understand the nature or object of the proceedings, (

b) understand the possible consequences of the proceedings, or (

c) communicate with counsel; As in this case, pursuant to

section 672.23(1), a court may direct that the issue of fitness be tried: 672.23

(1) Where the court has reasonable grounds, at any stage of the proceedings before a verdict is rendered, to believe that theaccused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issue offitness of the accused be tried.

i) Jurisdiction after a guilty plea [36] It is worthwhile to set out the Court’s jurisdiction for directing this inquiry. The issue arose after guilty pleas were recorded forall but two of the charges before the Court.

Section 672.27 directs that the court may try the issue of fitness at any stage of theproceedings and pursuant to s. 672.31 any plea that has been entered may be set aside: 672.27 The court shall try the issue of fitness of an accused and render a verdict where the issue arises (

a) in respect of an accused who is tried or is to be tried before a court other than a court composed of a judge and jury; or (

b) before a court at a preliminary inquiry or at any other stage of the proceedings. 672.31 Where the verdict on trial of the issue is that an accused is unfit to stand trial, any plea that has been made shall be set aside and any jury shall be discharged. [37] However, s. 672.31 has not been interpreted to my knowledge to apply after a guilty plea has been entered. In R. v. G. B., supra,the Court held that sections 2 and 672.23 of the Criminal Code were unconstitutional to the extent that they would limit an inquiry intothe issue of fitness, only before a verdict was rendered. The Court relied upon R. v.

Gardinar, (SCC), [1982] 2 S.C.R.368, at page 415, in support of its reasoning that sentencing is a phase of the trial process. It followed the recommendation of theStanding Committee on Justice and Human Rights, 14th Report. At paragraph 34, the Court wrote:

34 ... The principles of fundamental justice are to be found in the "basic tenets" of our legal system" (Ref. Re. s. 94(2) of the MotorVehicle Act (SCC), [1985] 2 S.C.R. 486 at 503). It follows then that Mr. G.B.'s present position as "unfit" and unable tocommunicate with counsel deprives him of fundamental justice. If he had been found "unfit" before the verdict, he could have beenassessed and treated. That is not an option for him now - and there is no logical reason why. There appears to be no valid purpose for thislegislative gap. Mr. G.B.'s liberty rights pursuant to

section 7 of the Charter have been infringed. [38] The pleas were entered, with the exception of Informations #42402016 and #36878902, before a different judge on an earlieroccasion. No issue was taken with whether the pleas had been accepted by that judge, nor with respect to the jurisdiction of this Court todirect a trial of the issue at this stage of the proceedings. It may be so, having regard to R. v. G.B., supra, or an earlier decision of thisCourt, R. v. I.B B., 2009 SKPC 76, which addressed the recording and acceptance of a plea at paragraphs 48 to 63.

I noted that theendorsements disclose that the judge who recorded the pleas on February 19, 2009, also ordered a psychological assessment. ii) How should the discretion be exercised? [39] This Court finds itself in a unique situation in directing an inquiry into the question of fitness of its own motion.

While greatdeference is accorded the wishes of the accused person, in this case exercised through his counsel, there is an overriding concern for theaccused’s rights, and first and foremost as guaranteed by s. 7 of the Charter; the right to life, liberty and security of the person and theright not to be deprived thereof except in accordance with the principles of fundamental justice. [40] Pursuant to s. 672.23, a court has a discretion to direct an inquiry. See R. v. Wolfson, supra, and R. v. Kolbe, supra. Thepredecessor to s. 672.23 was held to envisage a two-stage process.

At the first stage it is for the judge alone to decide whether there issufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence. The second stage is only pursuedif the first stage is answered affirmatively. In the first stage, it is not for the judge to determine any conflict of evidence. See R. v.McLeod, Pinnock and Farquharson, supra. There is a discretion only in the limited sense that a court is not bound to try the issue wherethere is no real basis for the request. See R. v. Steele, supra. [41] In the 1994 decision of R. v.

Bain, supra, the Nova Scotia Court of Appeal upheld the decision of the trial judge, declining todirect a trial of the issue. At paragraph 57, it discussed the two-stage process with respect to a potential fitness inquiry. 57 Justice Fish, on behalf of the Quebec Court of Appeal, in R. v.

Steele (1991), (QC CA), 63 C.C.C. (3d)149 described the test to be considered by the trial judge when faced with such an application: Where there is reason to doubt the fitness of the accused, the trial judge has no discretion: he or she must direct the trial of a special issue. . . in deciding whether to direct the trial of a special issue, the judge's function is to see if there is doubt as to accused's fitness. Thejudge, at this stage, does not determine whether the accused is fit or not.

That question is answered by the verdict concluding the trial ofthe special issue. [42] Crown Counsel quoted a paragraph from the Alberta Court of Appeal decision in R. v. L.S.C., supra, referred to with approval bythe Saskatchewan Court of Appeal in R. v. Jobb, supra, at paragraph 20, while maintaining that this Court give deference to Mr. Proulx’s“right to his day in court”: 12 There are strong interests, both public and personal, in an accused being fit to proceed to trial. The public interest is in ensuringthat persons who are accused of committing crimes are brought to justice.

The personal interests of the accused are twofold. First, aperson accused of a crime has a right to his "day in court" and to make full answer and defence to the charge. Second, a person who isdeclared unfit to stand trial risks being hospitalized indefinitely until considered "fit". Depending upon the extent of the person'scondition, such incarceration could theoretically be longer than any sentence the accused might have received if tried and convicted.

Our Court of Appeal referred to this passage, in the context of the policy reasons for the presumption that an accused person is fit;thereby placing the onus on anyone who wishes to rebut that presumption. Smith J.A. went on to state that it is in keeping with thispolicy that the courts have applied the “limited cognitive capacity test” for determining fitness. The Alberta Court of Appeal in R. v.L.S.C., supra, continued on by stating at paragraph 13:

13 Thus, the test for fitness must not be so low as to allow accused persons to avoid culpability for criminal offences simply becausethey harbour irrational beliefs unrelated to those offences or their ability to understand trial proceedings, nor so high as to send to trialthose who, due to their condition, cannot adequately make a full answer and defence. [43] In the Supreme Court of Canada decision of R. v. Swain, supra, the Court wrote that while the right of the accused to control hisor her defence is a basic tenet of fundamental justice pursuant to s. 7 of the Charter, it is not an absolute right.

The Supreme Courtfashioned a new common law rule which would allow the Crown to raise the insanity defence after a prima facie case has beenestablished in two instances:

i) to avoid the conviction of a person who was insane at the time of the offence, and ii) to protect the publicfrom a person who may be dangerous at the time. [44] In R. v. Peepeetch, supra, at paragraphs 51 to 53, the Saskatchewan Court of Appeal referred to R. v. Taylor and R. v. Swain,supra, affirming that a person who is fit to stand trial must be permitted to conduct his own defence: . . . In R. v. Swain, supra, at p. 504, Lamer C.J.C., for the majority, stressed the importance of the accused's s. 7 right to liberty whichallows him to control his own defence.

An accused who has not been found unfit to stand trial must be permitted to conduct his owndefence, even if this means that the accused may act to his own detriment in doing so. The autonomy of the accused in the adversarialsystem requires that the accused should be able to make such fundamental decisions and assume the risks involved. . . . [45] In R. v.

Morrissey, supra, the Ontario Court of Appeal discussed the importance of the accused being mentally fit to stand trial: 36 An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords withprinciples of fundamental justice such as the right to be present at one's own trial and the right to make full answer and defence: see R. v.Steele (1991), (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.) at pp. 172-173 and 181; R. v. Roberts (1975), (BC CA), 24 C.C.C. (2d) 539 (B.C.C.A.).

Meaningful presence and meaningful participation at the trial, therefore, are thetouchstones of the inquiry into fitness [46] In R. v. XU, 2007 CarswellOnt 9972 (Ont. C.J.), Schneider J. addressed the very issue that Crown Counsel raised, when speakingof Mr. Proulx’s entitlement to his day in court. 9 The court in Taylor felt that this standard struck 'an effective balance' between the objectives of the fitness rules and the right ofthe accused to choose his own defence and have a trial within a reasonable time.

While expediency must be considered in setting thefitness standard, it may be the case that the 'right to choose' is a rather empty right where the accused does not have a rationalunderstanding of his legal predicament; where choice is not rational choice. The right to choose must be read as 'rational choice'otherwise, from a protection perspective, it is a 'right' of questionable worth. Against the concern for expediency is the rationale for therules in the first place.

Principally, the rules are in place to ensure that an accused who is ill-equipped as a result of mental disorder is notsubject to the prosecution machinery of the state. The rules are to protect the accused. They operate to hold the prosecution in abeyanceuntil the accused is fit to respond. [47] Having directed a trial on the issue of fitness, there are no procedural rules. As both counsel took the position that Mr. Proulxwas fit, they were in a position to cross-examine. This accounts for a good deal of narrative from Dr. Mela, followed by cross-examination.

The Court, was concerned that the inquiry be balanced while maintaining a position of neutrality and independence. Hencequestions from this Court were limited and posed at the end of cross-examination by counsel. Counsel were then invited to ask anyquestions that may have arisen out of questions from the Court.

b) In determining whether an accused is fit to stand trial, what weight if any should be given to: wishes of the accused, thenature of the offences, the existence of a criminal record, the entry of guilty pleas, or possible dispositions if found to be unfit? [48] To the extent that the Crown sought to have this Court consider societal interests in exercising its discretion with respect to theultimate issue of fitness to stand trial, that argument is misplaced. In R. v. Swain, supra, at paragraph 46, the Supreme Court of Canada

emphasized the importance of separating societal interests from the exercise of the s. 7 Charter right to fundamental justice. 46 It is not appropriate for the state to thwart the exercise of the accused's right by attempting to bring societal interests into the principles of fundamental justice and to thereby limit an accused's s. 7 rights. Societal interests are to be dealt with under s. 1 of the Charter, where the Crown has the burden of proving that the impugned law is demonstrably justified in a free and democratic society.

In other words, it is my view that any balancing of societal interests against the individual right guaranteed by s. 7 should take place within the confines of s. 1 of the Charter. [ 49 ] If Mr. Proulx is fit to stand trial; he has the right to conduct his own defence, choose counsel of his choice, or defend himself. But first, there must be a determination that he is fit to stand trial. Perhaps then after the acceptance of guilty pleas when imposing sentence, arguments as to Mr.

Proulx’s knowledge of the justice system and the nature of the offences may be considered when determining the appropriate disposition or sentence. [ 50 ] The Crown asked this Court to draw inferences from the existence of a criminal record, suggesting that there was nothing in that record to indicate a previous concern with fitness to stand trial.

She suggested that the existence of the record supports a finding of fitness because it’s an indication of numerous previous interactions with the police, defence counsel, and the system at which time he must have exhibited sufficient ability that he was believed to be fit to stand trial. It is beyond the ability of this Court to draw such inferences and is not desirable to draw conclusions based upon matters that are not in evidence and which are open to many variables and questions. For instance, the record does not indicate whether Mr.

Proulx was represented by counsel with respect to any of the entries on his record. [ 51 ] The record of endorsements referred to above indicates that on two occasions, November 27, 2008 and February 19, 2009, two different judges in the Saskatoon Chamber, earlier ordered psychological assessments. Just as the reasons for those assessments are not known, this Court cannot now draw inferences from other court appearances in other matters not before this Court. Further, while Mr. Proulx has been under the care of a psychiatrist for a reasonably long period of time, having started to see Dr.

Prasad in December 1996, I am unaware that this Court at any time previously has received psychological and psychiatric assessments such as were produced by Dr. Helmer and Dr. Mela. I am not able to revisit the circumstances of earlier decisions to accept guilty pleas and I do not expect that Counsel was suggesting same.

Accordingly, I attach no weight whatsoever to the evidence of previous convictions for the purposes of the decision before me. [ 52 ] The Crown argued that the Court should be reluctant to embark upon the process of a fitness hearing or to determine someone to be unfit given the potential for being hospitalized indefinitely until considered “fit” and in this regard referred to R. v. L.S.C. , supra, discussed above. [ 53 ] Neither the Saskatchewan Court of Appeal in R. v. Jobb , supra , nor the Alberta Court of Appeal in R. v.

L.S.C. , supra, intended, in my view, that this brief discussion about the policy considerations for the presumption of fitness, be taken to be a consideration of the Criminal Code provisions governing decisions by the Review Board with respect to the risks of indefinite hospitalization; nor did they suggest that a trial judge disregard an issue of fitness or that it tailor its decision having regard to that potential.

The Criminal Code sections governing decisions of the Review Board which may affect the liberty of an accused contain significant safeguards outlined below. [ 54 ] First, the Court that finds an accused to be unfit to stand trial may make a disposition and if it does not do so any order for interim release in the community remains in place until such time as the Review Board makes a disposition. Sections 672.45 and 672.46(1) provide: 672.45

(1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered in respect of an accused, the court may of its own motion, and shall on application by the accused or the prosecutor, hold a disposition hearing.

(2) At a disposition hearing, the court shall make a disposition in respect of the accused, if it is satisfied that it can readily do so and that a disposition should be made without delay. 672.46

(1) Where the court does not make a disposition in respect of the accused at a disposition hearing, any order for the interim release or detention of the accused or any appearance notice, promise to appear, summons, undertaking or recognizance in respect of the

accused that is in force at the time the verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered continues in force, subject to its terms, until the Review Board makes a disposition . [ 55 ] The Review Board is obliged to hold a hearing to determine fitness and disposition within forty-five days of a finding that an accused is unfit to stand trial, unless an extension of time is ordered pursuant to s. 672.47: 672.47

(1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered and the court makes no disposition in respect of an accused, the Review Board shall, as soon as is practicable but not later than forty-five days after the verdict was rendered, hold a hearing and make a disposition.

(2) Where the court is satisfied that there are exceptional circumstances that warrant it, the court may extend the time for holding a hearing under subsection (1) to a maximum of ninety days after the verdict was rendered. [ 56 ] After a trial judge has made a determination that an individual is unfit to stand trial, the Review Board must make its own decision regarding fitness to stand trial and it may send an accused back to the court to try the issue and render a verdict. 672.48

(1) Where a Review Board holds a hearing to make or review a disposition in respect of an accused who has been found unfit to stand trial, it shall determine whether in its opinion the accused is fit to stand trial at the time of the hearing.

(2) If a Review Board determines that the accused is fit to stand trial, it shall order that the accused be sent back to court, and the court shall try the issue and render a verdict. [ 57 ]

Section 672.54 of the Criminal Code gives directions to the court or Review Board for making a disposition after a person has been found “unfit to stand trial”, which disposition may include a community disposition, a discharge with conditions, or detention in a hospital. 672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or

section 672.47 or 672.83, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused: (

a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely; (

b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or (

c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate. [ 58 ] It is important to emphasize that the overriding direction is that a disposition imposed by the court or Review Board must be the “least onerous and least restrictive to the accused”. The Review Board is required to review a disposition every 12 months. 672.81

(1) A Review Board shall hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge under paragraph 672.54 (a). [ 59 ]

Section 672.72 of the Criminal Code provides for an appeal from a disposition decision of a Review Board or a court. [ 60 ] Importantly, pursuant to s. 672.851, a Review Board or court may, of its own motion, where a person has been found to be “unfit”, who is not likely to ever become fit and does not pose a significant threat to the safety of the public, recommend to a court that a stay of proceedings be entered, permitting the release of the accused. Indeed a court may of its own motion direct an inquiry to determine if a stay of proceedings should be entered. See R. v. Demers , supra .

Section 672.851 provides:

672.851

(1) The Review Board may, of its own motion, make a recommendation to the court that has jurisdiction in respect of the offence charged against an accused found unfit to stand trial to hold an inquiry to determine whether a stay of proceedings should be ordered if (

a) the Review Board has held a hearing under

section 672.81 or 672.82 in respect of the accused; and (

b) on the basis of any relevant information, including disposition information within the meaning of subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(a), the Review Board is of the opinion that (

i) the accused remains unfit to stand trial and is not likely to ever become fit to stand trial, and (ii) the accused does not pose a significant threat to the safety of the public. s. 672.851(4) A court may, of its own motion, conduct an inquiry to determine whether a stay of proceedings should be ordered if the court is of the opinion, on the basis of any relevant information, that (

a) the accused remains unfit to stand trial and is not likely to ever become fit to stand trial; and (

b) the accused does not pose a significant threat to the safety of the public. [ 61 ] This section, enacted in

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