R. v. Klco, 2023 BCPC 51

Citation: R. v. Klco 2023 BCPC 51 Date: 20230202 File No: 42499-1 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BRANISLAV KLCO Ban on Publication under s. 486.4(1) of the Criminal Code ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HUTCHESON Counsel for the Crown: N. Grabe Counsel for the Defendant: E. Chesterley Place of Hearing: Courtenay , B.C. Date of Hearing: December 21, 2022 Date of Judgment: February 2, 2023

[1] THE COURT: This is my oral decision on the fitness application before the court. [2] Mr. Klco is charged with three counts of touching a person under the age of 16 years for a sexual purpose contrary to s. 151 ofthe Criminal Code. Each count covers the same period; namely, May 1, 2020, to and including June 15, 2020. Each count applies to adifferent complainant. I was not provided with any of the alleged particulars of the offences. [3] The information was sworn on August 26, 2020, and Mr.

Klco made an election and entered not guilty pleas on or about April29, 2021, just after he changed counsel to his current counsel. [4] Mr. Klco is age 70 and recently became a widower. While not entirely clear when, but a few years ago, Mr. Klco experienced anumber of strokes. Most recently, he has experienced several small strokes causing increased weakness and increased aphasia. Thestrokes have caused a change in Mr. Klco's ability to communicate and comprehend. Mr.

Klco grew dependent upon his wife and reliedupon her to care for him and to complete day-to-day household tasks, including such things as banking, transportation, appointments, andmeal preparation. Given Ms. Klco's recent death, other family members are presently assisting with Mr. Klco's care. [5] Mr. Klco has raised the issue of fitness and the sole issue before the court is whether Mr. Klco is unfit to stand trial. [6] Turning next to the legal principles,

Section 2 of the Criminal Code provides: 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 . . . (

c) communicate with counsel; [7] By virtue of s. 672.22 of the Criminal Code, Mr. Klco is presumed to be fit to stand trial unless the court is satisfied on thebalance of probabilities that the accused is unfit to stand trial. In this case, the burden is on Mr. Klco to prove that he is unfit, and I referto s. 672.23(2) of the Code. [8] In R. v. Kampos, 2020 BCSC 1437 the court reviewed the law with respect to determining fitness. In doing so, the court adoptedthe limited cognitive capacity test as set out in R. v. Taylor (1991), (ON CA), 77 CCC (3d) 551 (ONCA) andreaffirmed and clarified in R. v.

Morrissey, 2007 ONCA 770. [9] In Kampos at paragraphs 16 and 17 the court explained the limited cognitive capacity test as follows: [16] . . . [The limited cognitive capacity] . . . test assesses the accused’s ability to recount the necessary facts related to his or her offenceto counsel in such a manner that his or her counsel may advance a proper defence.

The focus is on the accused’s ability to conduct adefence, communicate and instruct counsel, and whether that ability is impaired by reason[s] of his or her mental disorder. . . . [17] Additionally, the accused must be able to participate in a meaningful way in the proceedings or to meaningfully assist his or hercounsel with his or her defence. (Taylor, at 566; Adam at para. 29). [10] The court in Kampos at paragraphs 19 and 20then went on to further explain how R. v. Morrissey clarified the cognitive capacitytest as follows: [19] . . .

The court upheld the trial judge’s jury instruction that in considering whether the accused is unable to communicate withcounsel, the critical issue is whether an accused is able to “speak with counsel rationally, to understand questions and answer them in anintelligible fashion, and to make critical decisions on counsel’s advice, concerning the offence with which he is charged” (Morrissey atpara. 56).

The Court held that “meaningful presence and meaningful participation at the trial …are the touchstones of the inquiry intofitness” (Morrissey at para. 36). [20] In Adam at para. 29 Justice Trotter (as he then was) adopts the Morrissey approach and observes that “the three arms of the fitnesstest…are not free-standing fitness criteria to [be] mechanically applied; instead, they are tools to assist in determining whether a mentallyill accused person is able to defend him or herself”. [11] It is clear, then, that in considering whether Mr.

Klco is unable to communicate with counsel, the court must consider whetherMr. Klco is able to:

a) speak with counsel rationally;

b) understand questions and answer them in an intelligible fashion; and

c) makecritical decisions on counsel's advice concerning the offence with which he is charged. [12] I will turn next to the position of the parties. Counsel for Mr. Klco submits that Mr. Klco is unfit to stand trial because his mentaldisorder renders him unable to communicate with counsel. More specifically, it is said that Mr. Klco has had a series of strokes whichhas resulted in him suffering from dementia and limited cognitive ability.

It is alleged that as a result of his dementia he is unable tocommunicate with counsel, as he is unable to think flexibly, unable to find words and unable to assess options when asked anddiscussing matters with counsel. [13] Further, it is argued that Mr. Klco does not have the ability to choose options presented to him by counsel that would ensure theleast onerous outcome for Mr. Klco. It was also argued that Mr.

Klco cannot communicate details about the charges to provide sufficientinformation to enable counsel to cross-examine the witnesses or to confront the witnesses, including the complainants, as required underBrowne v. Dunn. [14] Defence counsel related to the court that apart from perhaps one meeting, all of his meetings were with both Mr. and Mrs. Klco,and that Mrs. Klco did all of the talking. Counsel said it is clear that Mr. Klco can state he is not guilty, but he does not seem to have anymemory to flesh out the circumstances of the offences.

[ 15 ] The defence relies on a forensic psychiatric report prepared by Dr. Prior dated August 22, 2022, which report was prepared in response to a request by Mr. Klco and an order of this court. Dr. Prior's report specifically addresses the issue of fitness and Dr. Prior ultimately opines that Mr. Klco is unfit. [ 16 ] At pages 8 and 9 of his report, Dr. Prior summarizes his opinion, in part, as follows: [as read in] Mr. Klco presented with a significant cognitive impairment. This is attributable to a well-established diagnosis of dementia caused by strokes. Mr.

Klco has an impaired ability to learn and deal with new material. He has a profound difficulty with expressive language and there is evidence that his executive function is impaired. Specifically, there is evidence that Mr. Klco lacks the ability to organize and follow a sequence of steps to achieve a goal. Mr. Klco's diagnosis is moderately severe dementia secondary to cerebral vascular disease. There is no evidence of any other psychiatric difficulty. As such, Mr.

Klco seemed to demonstrate a limited cognitive capacity to understand and appreciate the nature and object of the proceedings and possible consequences of those proceedings. Mr. Klco's capacity to participate in his own defence seems significantly impaired with respect to his ability to communicate with counsel. He did not demonstrate any ability to think fluidly or to assess options when asked about possible communication with counsel. As such, on his own it was not clear whether Mr.

Klco could assess counsel's advice and participate in his own defence to the extent that he could choose options that ensured the least onerous outcomes. Finally, Mr. Klco's cognitive deficits are consistent with his presentation; namely, that he is impaired, mainly with respect to communicating with counsel. [ 17 ] The defence also relies on a report dated June 21, 2022, from Dr. Schovanek, a geriatric psychiatrist. Dr. Schovanek was consulted by defence counsel to obtain a diagnosis related to Mr. Klco's mental health, including Mr.

Klco's cognition, communication and capacity. [ 18 ] The Crown takes the position that the court should not accept Dr. Prior's opinion for a number of reasons. First, it is said that Dr. Prior came to his opinion, in part, by making a number of assumptions related to meetings between Mr. Klco and counsel, which assumptions do not appear to be correct. These assumptions were based on what Mr. Klco's wife told Dr. Prior. [ 19 ] Second, the Crown says that the evidence before the court shows that Mr. Klco satisfies the three arms of the fitness test set out in Morrissey and adopted in Kampos , and as a result Dr.

Prior's opinion is incorrect. [ 20 ] Third, the Crown argues that while there is a suggestion that Mr. Klco is unfit because of his dementia and limited cognitive ability, there was no proof put forward of an actual example where he had not been able to communicate effectively with counsel. The Crown says that this is particularly so when the transcript of Mr. Klco's interview with the RCMP is reviewed. [ 21 ] Turning next to my discussion. I note that Dr. Prior is a highly qualified forensic psychiatrist and is an expert in determining whether a person is fit to stand trial.

He has provided somewhere between 50 and 100 expert opinions on fitness. [ 22 ] Dr. Prior noted that the assessment of Mr. Klco was difficult. He said that it was not a clear-cut fitness assessment and that is why he asked Mr. Klco to attend a second time for a second interview. At page 7 of his report, Dr. Prior noted that in the second interview, Mr. Klco told Dr. Prior that he would tell his lawyer that he denies any involvement in the charges. Mr. Klco was also asked about taking advice from the lawyer, particularly about a plea, and Mr. Klco said that it depended on what it was. Mr.

Klco was then asked what he would do in the event the lawyer recommended he plead guilty and in response, Mr. Klco said he would not accept such advice to take any kind of plea indicating his guilt. [ 23 ] In cross-examination, Dr. Prior agreed that these statements I have just referred to that were recorded on page 7 of his report, on their own, addressed the three arms of the cognitive capacity test, and are sufficient to come to the conclusion that Mr. Klco is fit to stand trial. However, Dr. Prior said that in spite of Mr.

Klco appearing to display fitness, there was other evidence beside the noted statements by Mr. Klco that Dr. Prior had to consider, and that when he considered all the additional evidence put before him, his opinion, notwithstanding the statements by Mr. Klco, was that Mr. Klco was unfit. [ 24 ] First, Dr. Prior took Dr. Schovanek's report into account. He said that there were two aspects of Dr. Schovanek's report that influenced him. First, Dr. Schovanek confirmed that Mr. Klco had multiple strokes resulting in dementia. This was further bolstered by Dr.

Schovanek's administering of the Folstein Mini Mental Status examination, which examination confirmed a diagnosis of dementia. [ 25 ] Second, Dr. Prior noted that Mr. Klco was consistent in his communication and answering of questions between Dr. Schovanek and himself. Dr. Prior said that he noticed the same difficulties or features that Dr. Schovanek witnessed and noted in Dr. Schovanek's report at pages 1, 3, 4 and 5. [ 26 ] Dr. Prior said the following at page 8 of his report under the heading "Review of Collateral Information" about his review of Dr. Schovanek's report: [as read in] Mr.

Klco was assessed by Dr. Schovanek, a specialist in geriatric psychiatry, who kindly made his report available for review. Of note, Mr. Klco scored significantly low in a test of cognition. Dr. Schovanek formed the impression that Mr. Klco has significant cognitive and functional impairment consistent with a moderately severe dementia secondary to a series of strokes. Dr. Schovanek also noted that there is prominent disturbance in language and executive function. Finally, Dr. Schovanek offered an opinion that Mr.

Klco would not be able to testify in his own behalf due to problems arising from his dementia. [ 27 ] Dr. Prior said that he did not rely on Dr. Schovanek's opinion as to fitness or capacity to come to an opinion on fitness, as these findings are out of Dr. Schovanek's area of expertise. However, Dr. Prior viewed Dr. Schovanek was an expert in diagnosing dementia. Dr. Prior said that he came to his opinion on fitness based on his own review of all of the evidence. [ 28 ] The next area of evidence considered by Dr. Prior was the evidence of Mr. Klco's wife. Dr. Prior noted that Mr.

Klco's wife's evidence caused him to think that he may not be able to communicate with counsel. In particular, Dr. Prior noted at page 7: [as read in]

Hannah [phonetic] stated that she and Mr. Klco met with his current counsel only once, in contradiction to Mr. Klco's report. She also stated that Mr. Klco seemed puzzled by the encounter and that she answered most of the questions, and that Mr. Klco could not provide meaningful responses. She attributed this to difficulties with Mr. Klco processing the questions as well as to his profound difficulty in finding appropriate words and language. She was most concerned that Mr. Klco, simply put, could not provide appropriate information to counsel. [ 29 ] It was suggested by Crown that perhaps Mr.

Klco's wife was trying to minimize Mr. Klco's actions or conversely, overstate his disabilities. Dr. Prior, in cross-examination, discounted these concerns. He said that Mrs. Klco followed his instructions not to interject at certain points. He said that she did not try to present any particular narrative and was overall helpful to him by offering honest information. It was put to Dr. Prior that Mrs. Klco was wrong in some of the things that she said about Mr. Klco's attendance at lawyers' offices, but again, Dr. Prior did not think that if Mrs.

Klco was in error, that those alleged errors ultimately affected his opinion on fitness. [ 30 ] The Crown was particularly concerned with Dr. Prior not giving full weight to Mr. Klco's earlier statement to the RCMP. The Crown was of the view that Mr. Klco showed in his statement to the RCMP that he could recall the events he was charged with and could explain why, or theorize why, the complainants might not be telling the truth. This, the Crown said, again showed fitness. [ 31 ] Dr. Prior said that he had considered Mr. Klco's statement to the RCMP and Dr.

Prior acknowledged the content of that statement in cross-examination. Dr. Prior declined to vary his opinion on fitness, notwithstanding Crown's urging in cross-examination that the RCMP statement established fitness. Dr. Prior said that he compared the RCMP statement with what Mr. Klco told him, and the two are largely the same. Dr. Prior said that throughout the RCMP statement and the interviews with Dr. Prior, Mr. Klco mostly simply denied the offences and gave very short answers. There were many pauses, ers, ums, and like responses. [ 32 ] Dr. Prior also said that he was focussed on Mr.

Klco's response style as well as whether Mr. Klco was confabulating to fill in gaps. Overall, Dr. Prior said that there was clear evidence of impaired memory, especially for short-term memory. He was of the opinion that Mr. Klco would have problems communicating with counsel over the issues raised in the RCMP statement. [ 33 ] Dr. Prior was of the opinion that Mr. Klco would have a hard time strategizing with counsel over things such as a plea. Dr. Prior said that Mr. Klco has profound difficulties with flexible thinking and finding the right expressive language or words, all of which negatively impact Mr.

Klco's ability to communicate with counsel. [ 34 ] Last, the Crown argued that Mr. Klco had not actually proved or given a specific example of an area where he cannot communicate. [ 35 ] Given the extent of Dr. Prior's opinion and the basis for that opinion, it is my view that there is sufficient evidence to establish on a balance of probabilities that Mr. Klco is unable on account of a mental disorder, which in this case is dementia resulting in loss of cognition, to communicate with counsel. To require any further evidence from Mr.

Klco is to require that he prove his lack of fitness beyond a reasonable doubt, and not simply on a balance of probabilities, as is required. [ 36 ] Dr. Prior was thoroughly cross-examined by Crown and he did not resile from his ultimate opinion on fitness. Dr. Prior was able to answer the Crown's concerns over potential shortcomings with respect to his opinion. There is, in the end of the day, no clear reason to reject Dr. Prior's opinion in whole, or in part, and I accept his opinion as provided in his report dated August 22, 2022. [ 37 ] In conclusion, then, I find that Mr.

Klco is unable on account of a mental disorder to conduct a defence or to instruct counsel to do so, and in particular, is unable on account of a mental disorder to communicate with counsel. I find, then, that Mr. Klco is unfit to stand trial. (JUDGMENT CONCLUDED)