R. v. Jachetta, 2020 MBPC 21

CITATION: R. v. Jachetta 2020 MBPC 21 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) ) Robert Gosman for the Crown - and – ) ) ) Peter Jachetta, Accused ) ) ) Michael Cook, for the Accused ) ) ) Reasons for Decision ) Delivered: May 4, 2020 Anne Krahn, A.C.P.J. Introduction: [1] Mr. Peter Jachetta had been a lawyer, called to the Bar on June 25, 1974. Mr. Jachetta is 72 years old. On July 20, 2015, hewas disbarred for misappropriation of trust funds in the amount of $307,000. The Law Society directed a letter setting this out to theWinnipeg Police Service. An investigation was launched.

On December 17, 2018, Peter Jachetta was charged with criminal breach oftrust, fraud over $5000, false pretences and theft over $5000. Mr. Jachetta takes the position he is unfit to proceed to trial due to a neuro-cognitive disorder or dementia. The Crown relies on the criminal law presumption all persons are fit to stand trial. The Crown raisesconcerns about the credibility of Mr. Jachetta’s professed lack of memory or current awareness of his criminal charges due to dementia. [2] I have found Mr.

Jachetta is unfit to stand trial because his dementia impairs his ability to understand and meaningfullyparticipate in the criminal proceedings against him. These are my reasons for that decision. The Legal Test for Fitness to Stand Trial [3]

Section 672.22 of the Criminal Code says “An accused is presumed fit to stand trial unless the court is satisfied on the balanceof probabilities that the accused is unfit to stand trial.”

Section 672.23(2) says the onus is on the party who makes the application tohave an accused declared unfit.

Section 2 of the Criminal Code provides the following definition: “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. [4] Crown counsel provided me with R. v. Taylor (ON CA) as the leading case on fitness. This decision wassubsequently referred to with approval by the Supreme Court of Canada in R. v. Whittle, (SCC), [1994] 2 S.C.R. 914. The test is not concisely enunciated in Taylor, however, the Court adopted the “limited cognitive capacity test”. This test did not requirea person to be acting in their own best interests or to have “analytic capacity” in order to be fit to stand trial.

The Court identified therationale for the fitness rules was to strike a balance between the autonomy of an accused person to choose and conduct their owndefence, to have the matter determined on its merits and to make sure the trial process is fair and allows for meaningful participation ofthe accused person. The Ontario Court of Appeal confirmed the standard for fitness was meant to be a low one.

[ 5 ] Mr. Taylor had been a lawyer. He had a chronic mental illness of paranoid schizophrenia which resulted in his suspension from legal practice by the Law Society. In the course of seeking to be re-instated, he stabbed the victim, counsel for the Law Society. Mr. Taylor appealed findings of unfitness in the Courts below to the Court of Appeal. Mr. Taylor was prone to delusions, was extremely paranoid and easily agitated. He had trouble maintaining relationships with defence counsel because of his paranoia that all members of the justice system were conspiring against him. Mr.

Taylor was described as “articulate, was aware of the possible consequences of his trial, and was aware of the nature of an oath and meaning of perjury.” The Court quashed the earlier orders of unfitness and ordered a new trial. [ 6 ] Recently, in R. v. Daley , 2019 NBCA 89 , the Court considered two divergent lines of cases which have considered the meaning to be applied to the requirement of being able to “communicate with counsel.” In R. v.

Jobb , 2008 SKCA 156 , the Court took a narrow view of the phrase, finding the ability to communicate with counsel “is limited to an inquiry whether an accused can recount to his or her counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence” (at para. 39). [ 7 ] The second line of cases followed the Ontario Court of Appeal in R. v. Morrissey 2007 ONCA 770 which held the ability to communicate with counsel should be “interpreted in a purposive and functional manner.” (at para. 29).

Blair J.A. for the Court said, . . . the thrust of the concept of unfitness to stand trial is that the accused is unable to conduct a defence or to instruct counsel to do so. The ability to communicate with counsel in the context of a fitness inquiry speaks to the ability to seek and receive legal advice. Later, the Court put it this way, at para. 36: Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness. The Court in Daley chose to follow the Morrissey line of cases. So did the Court in R. v.

Eisnor , 2015 NSCA 64 . [ 8 ] It is helpful to consider the facts in Morrissey and Eisnor which were similar. In both cases, the accused person shot and killed their domestic partners and then turned the firearm on themselves. In both cases, the victim died but the accused person survived with brain injuries resulting in amnesia or a lack of memory of the events leading up to the shooting. Both courts held the lack of memory did not necessarily result in a finding of unfitness.

Both courts found the accused could still hear, respond and understand the court proceedings such that they could instruct counsel, even without the ability to recall the events immediately surrounding the shooting. I find the legal

interpretation of the test for fitness set out in Morrissey persuasive, for the reasons set out in Eisnor and Daley , and I will apply it to the case before me. [ 9 ] Mr. Jachetta sought to establish he was unfit by calling forensic psychiatrists Dr. Waldman, Dr. Casiano and forensic psychologist, Dr. Hill. Mr. Jachetta also chose to testify. The Crown did not contest the expert qualifications of any of the witnesses. Ordinarily, the basis for an expert report would have to be established in order for the Court to conduct an independent analysis of the weight to be attached to the expert’s opinion.

Given the filing of the reports was by consent and the witnesses’ expertise was uncontested, I have concluded the collateral information referred to in these reports was reliable and accurate. Doctor Waldman’s Evidence [ 10 ] Dr. Waldman practices as a Forensic Psychiatrist and has since 2003. He estimated he had authored between 400-500 forensic fitness assessments. His expert qualifications were not in dispute. Dr. Waldman testified Mr. Jachetta has a number of medical diagnosis which have resulted in dementia, a mental disorder, that in his opinion causes Mr.

Jachetta to be unable to participate in his defence. [ 11 ] The medical illnesses which significantly contribute to Mr. Jachetta’s dementia are atherosclerosis and Parkinson’s disease. Dr. Waldman explained atherosclerosis is a hardening of the arteries and is a complication of diabetes. Sclerotic tissue builds up in the blood vessels which causes problems with blood flow. Mr. Jachetta has a history of stroke and heart disease as a result of the atherosclerosis. Atherosclerosis can result in blockage of the blood flow to the brain, resulting in brain tissue destruction or death. Dr.

Waldman explained the decreased blood flow to the brain was likely contributing to Vascular Dementia or Multi-infarct Dementia. [ 12 ] Dr. Waldman explained Parkinson’s disease is a progressive motor disease but is often associated with Parkinson’s dementia. The physical features of Parkinson’s include physical tremors, flat affect, changes in personality, difficulty with motivation and difficulty getting moving. Dr. Waldman observed these objective physical signs when he first assessed Mr. Jachetta. These physical signs were also evident throughout the court proceedings, including when Mr. Jachetta testified.

Dr. Waldman said destruction of brain tissue is a common consequence of Parkinson’s disease. The hallmark of dementia is a loss in memory, changes in personality and changes in a person’s ability to function. Dr. Waldman testified Parkinson’s disease cannot be reversed or cured with medication. The physical symptoms can sometimes be mitigated with medication but this would have no effect on the dementia. Dr. Waldman explained the disease is progressive meaning the impairments, physical and mental, will increase over time.

In some people the progression of the disease is slower, in others it is faster, but it is always progressive. Typically, the life expectancy of people with Parkinson’s disease is 10 years. [ 13 ] Dr. Waldman interviewed Mr. Jachetta on September 25, 2019 at his office. The meeting lasted approximately one hour. In addition to the information gathered during this interview, Dr. Waldman was provided with police reports related to Mr. Jachetta’s criminal charges, information from the Law Society’s investigations and letters from some of Mr. Jachetta’s other treating physicians, including a neurologist. [ 14 ] Dr.

Waldman said Mr. Jachetta was unaware of the reason for the appointment. He had arrived by Handi-Transit as arranged by his wife. The purpose of the meeting was explained to Mr. Jachetta at the outset but he would forget the purpose throughout the interview. Dr. Waldman reported, despite explanations and education regarding the assessment, Mr. Jachetta had difficulty processing and retaining that information. Mr. Jachetta was able to say Mike Cook (his lawyer of record) was a good friend and a lawyer but could not process that Mr. Cook was representing him on a legal matter. Dr.

Waldman reported he repeatedly advised Mr. Jachetta this was in relation to his outstanding criminal charges but Mr. Jachetta was not aware he was facing criminal charges. Dr. Waldman reported Mr.

Jachetta appeared shocked each time he was reminded or told he was facing criminal charges. Dr. Waldman concluded Mr. Jachetta’s dementia resulted in an impairment in his ability “to lay down or process new memories”, that is, an inability to form new memories. [ 15 ] Dr. Waldman’s opinion was that Mr. Jachetta was unfit because:

a) While he understood what a lawyer and judge do, he was not able to process he had been charged with a criminal offence or what he had been charged with. This lead to a deficit in his ability to understand the nature and object of the criminal proceedings;

b) Mr. Jachetta could only come up with one outcome if asked in general terms what would happen if someone were convicted of a criminal offence - they could go to jail. He could not come up with other outcomes. Dr. Waldman testified he could not assess Mr. Jachetta’s ability to assess particular outcomes as it related to his own circumstances because he could not remember that he was charged with a criminal offence.

c) Mr. Jachetta can communicate, in that he can respond to questions. But he cannot communicate what he cannot remember or process. For the foregoing reasons, Dr. Waldman’s opinion was Mr. Jachetta was unfit to stand trial. [ 16 ] The cross-examination of Dr. Waldman focused on his failure to note in his written report any awareness or assessment of the potential for Mr. Jachetta to be feigning a lack of memory in order to avoid facing serious criminal charges. Dr. Waldman admitted it was not specified in his report as he did not anticipate it as a concern. Dr.

Waldman explained he was not initially asked for a fitness assessment. He was asked for an assessment of how a jail sentence might affect Mr. Jachetta given his mental and physical health. The hope from counsel for Mr. Jachetta, as communicated to Dr. Waldman, was that the psychiatric assessment would support a submission that extraordinary circumstances had been established to avoid a jail sentence. Dr. Waldman explained, only after he conducted the assessment, did he raise with Mr. Jachetta’s counsel his professional opinion was Mr. Jachetta was unfit. Dr.

Waldman testified, “he was not coming to me to say I can’t remember stuff so I am not fit” and therefore he did not expressly comment on feigning in his written report. [ 17 ] Dr. Waldman testified, feigning or faking is always an underlying concern. Therefore he looks for consistency between his own assessment and the observations of other clinicians, as well as collateral information. He pointed out that Dr. Anhang and Dr. Milliken, neurologists, would have more objective tests, including a CT scan to confirm the prior stroke and the diagnosis of Parkinson’s Disease.

These objective tests would be extremely difficult to fake. [ 18 ] Dr. Waldman pointed out that Dr. Sexton, a clinical psychologist who saw Mr. Jachetta over a number of years, saw him get progressively worse. Dr. Sexton began seeing Mr. Jachetta in 2016 when he was referred for difficulties with shame resulting from his disbarment in 2015 and difficulties with mood once his Parkinson’s began to emerge. Dr. Waldman wrote: In January 2019, Dr. Sexton noted that although Mr.

Jachetta has remained oriented to time, place and person, he has “experienced a considerable loss of episodic and autobiographical memory, as well as a loss of working memory.” Dr. Sexton’s documentation dated January 7, 2019, indicates that Mr. Jachetta was unable to retain information regarding the events of his disbarment or charges. Dr. Sexton notes that: “Due to his autobiographic memory collapse there is little (or no) ability to cognitively process events.” As a result of Mr.

Jachetta’s severe memory deficits and inability to process autobiographical events, it was felt that he was no longer a suitable psychotherapy candidate and as such, Dr. Sexton had discontinued treatment at that point. (Dr. Waldman’s report, Exhibit 2, page 4) [ 19 ] Dr. Waldman pointed out collateral information from Mr. Jachetta’s wife was that he has Home Care twice a day to get him dressed and undressed. He cannot use any appliances anymore. He is unable to plan enough to put a meal on a plate, even a pre- prepared meal. She uses Meals on Wheels to have food delivered to their home.

He can no longer use the computer, an Ipad or the television remote control. He has lost interest in seeing family and friends. He simply watches TV but cannot process what he is watching. He will repeat the same simple question, such as ‘How is your day?” three to four times in a five to 10 minute time span. His wife reported to Dr. Waldman that the deterioration of his memory in the last six months had been precipitous. [ 20 ] Dr. Waldman pointed out that Mr. Jachetta demonstrated good effort on the mental status test.

He said it is common for a person who is feigning to exaggerate their symptoms to appear more impaired than they really are. He did not see this with Mr. Jachetta who appeared to put a lot of effort into answering questions. [ 21 ] Based on his own assessment, the reports from other doctors, the collateral information, Dr. Waldman testified he had taken every step possible to rule out feigning. He did concede there is no single, physiological test to provide a 100% guarantee. [ 22 ] It was clear to me that Dr. Waldman was confident Mr. Jachetta is not feigning his memory loss.

I find that belief was well supported by the documentation reviewed by Dr. Waldman and the collateral information. As I will explain below, that opinion was further confirmed by the other evidence before me, particularly Dr. Hill’s testimony and the evidence of Mr. Jachetta. Dr. Casiano’s and Dr. Hill’s Evidence [ 23 ] Dr. Hygia Casiano, a qualified forensic psychiatrist, testified on behalf of Mr. Jachetta. Dr. Casiano assessed Mr. Jachetta after a court-ordered fitness assessment was made. She met with Mr. Jachetta on November 22, 2019. Mr.

Jachetta was not able to explain to her or remember the charges he was facing, even though she repeated it to him a number of times. Dr. Casiano maintained, “with reasonable medical certainty”, Mr. Jachetta was unfit to stand trial, although she was much less confident than Dr. Waldman was, that Mr. Jachetta was not malingering. [ 24 ] Dr. Casiano asked for Dr. David Hill, a forensic psychologist on the Adult Forensic Services team to conduct an assessment, looking specifically at malingering or feigning of his loss of memory symptoms. [ 25 ] The written report was signed by both Dr. Casiano and Dr. Hill.

I will note here, parenthetically, an issue was raised briefly

regarding the ability of Dr. Hill to “co-author” a fitness assessment and testify on fitness to stand trial. Dr. Hill, as a forensic psychologist would not fall within the Criminal Code definition of medical practitioner in s. 672.1 and has not been authorized by the Attorney General as a person qualified to conduct fitness assessments. Dr. Hill, during his training in Florida testified he conducted 25- 30 fitness or competency to stand trial as they are called in that jurisdiction. He has been called on to provide a second opinion on fitness 10-15 times as a member of the forensic services team.

Ultimately, counsel agreed he could testify about the psychological tests he administered and the interview assessment he conducted of Mr. Jachetta. He would not provide any opinion evidence on the fitness to stand trial of Mr. Jachetta. [ 26 ] Dr. Hill performed two validated, psychological tests of Mr. Jachetta. The first was called a Repeatable Battery for the Assessment of Neuropsychological Status (RBANS). Dr. Hill explained he used a number of sub-tests from the RBANS to focus on cognitive domains such as attention, language, visuospatial/constructional abilities and immediate and delayed memory. Mr.

Jachetta’s results were compared with people of similar age in an American normative sample. His score for immediate memory fell in the Extremely low (1 st percentile) range. His score on the language index fell in the Low Average (16 th percentile). Dr. Hill had the benefit of previous testing in 2018 in Mr. Jachetta’s medical file and testified there had been significant decline since then. He noted all scores were lower than would have been expected from Mr. Jachetta prior to developing Parkinson’s or any of his other medical conditions. Dr.

Hill explained, given his education and career, he would have been functioning at a fairly high level compared to the general population, at least at average or higher levels. [ 27 ] Dr. Hill also performed a Test of Memory Malingering (TOMM). Mr. Jachetta demonstrated good effort in completing these tests. Dr. Hill wrote in the report, “Mr. Jachetta’s performance on the TOMM suggests no concerns related to feigning or exaggeration of memory problems.” [ 28 ] Dr. Hill also conducted an interview of Mr. Jachetta and observed that he had no awareness of pending legal charges.

He seemed surprised and confused when informed he did have pending charges and that is why he was being seen at Adult Forensic Services. Dr. Hill said he looked at all sources of data, including all of the medical and psychological reports, the collateral information from his wife, Dr. Waldman’s report and police reports to see if Mr. Jachetta’s presentation was consistent over time. He noted in police reports Mr. Jachetta reported he could not remember the alleged events in June 2017 and November 2018. He pointed out that Dr.

Sexton, in a letter dated January 2019, noted episodic and autobiographical memory loss, as Mr. Jachetta could not recall being disbarred or being criminally charged. He concluded the decline in Mr. Jachetta’s functional abilities was consistent with the diagnosis of a neuro- cognitive disorder and was consistent with how a person with a neuro-cognitive disorder or dementia would typically present. [ 29 ] During cross-examination Dr. Hill was asked if a persons tells the same lie repeatedly and to multiple different people, does that really help establish veracity. Dr.

Hill responded, in his experience, it is extremely difficult and very rare for an individual to maintain a feigned presentation for years. Usually, there is some inconsistency that would come to light. Dr. Hill was questioned about the fact Dr. Casiano had seen a perfectly pleasant social interaction the morning of the court hearing between Mr. Jachetta and his lawyer, just like any other interaction between two people who knew each other. This was a short 30 second greeting. Dr. Hill confirmed Mr. Jachetta is able to have a conversation. His answers are responsive to the questions he is being asked. Dr.

Hill explained the areas of impairment from a neuro-cognitive disorder are very individualized and depend on what areas or domains of the brain have been impacted. Dr. Hill did not find this information inconsistent with Mr. Jachetta’s memory impairment. He said it is quite possible Mr. Jachetta can respond appropriately “in the moment” but still have memory impairment of “historical details” as it related to his legal status. [ 30 ] After Dr. Casiano’s first written report was released, Mr. Jachetta’s lawyer shared with her the Crown Attorney had a concern Mr.

Jachetta’s professed memory problems might not be truthful. Dr. Casiano wrote a second report that offered a further suggestion: In order to best understand Mr. Jachetta’s functioning and to help serve the courts, it is recommended that consideration be given to declaring Mr. Jachetta Unfit, and then to have him be brought to hospital under the Criminal Code Review Board. Having an inpatient assessment with multiple informants from various staff members who can watch the claimant 24 hours a day will be helpful to understand his functioning. Furthermore, having Mr.

Jachetta on the inpatient unit would provide the opportunity to repeatedly teach him about concepts related to court proceedings, with the aim of having him become fit over time. [ 31 ] Dr. Casiano testified and wrote in her second report, her opinion was Mr. Jachetta was unfit, mainly because he was unable to recite his criminal charges. However, she felt Mr. Jachetta had demonstrated the capacity for learning and does have some memory skills because he:

a) remembered halfway through her interview with him, at 9:25 a.m. he needed to take his medication at 9:30 a.m., he then retrieved a list of medications and took the medication. Dr. Casiano was unaware of the medication so he remembered this unprompted;

b) he remembered meeting with Dr. Casiano the previous week (November 22, 2019) when he met with Dr. Hill on November 27, 2019 and asked why he was meeting them on two occasions;

c) one hour into the interview, he recalled one of the four charges he had been told by Dr. Hill he was facing. [ 32 ] Dr. Casiano testified with education, practice and repetition, she felt it would be possible for Mr. Jachetta to learn to recite his criminal charges such that he could meet the “low” or “minimal” standard required for fitness. When Dr. Casiano was asked if Mr.

Jachetta could communicate with counsel (the third subset of the fitness criteria in Criminal Code s. 2 (c)) she said, “that one tends to be more difficult for us as clinicians to assess simply because we are not watching the interaction between clients and their lawyers but in this case, this morning, I was able to witness yourself and Mr.

Jachetta have a lovely conversation, so I did not see that there were any issues with his ability to communicate with counsel.” She agreed when asked further questions, this conversation was on a friendship level and did not delve into any “legalese” so she could not say whether Mr. Jachetta would understand concepts like reasonable doubt and burden of proof. [ 33 ] It appeared to me the legal test being applied by Dr. Casiano was lower than the one that has been expanded upon in the later case law such as in Morrissey and Daley .

The ability to communicate with counsel must be meaningful communication related to the

offences before the Court. [ 34 ] In Morrisse y, even though the accused had amnesia, the Court found Mr. Morrissey did have the oral and communication skills to assist in his defence. The Court said Mr. Morrissey did not fall into the category of people whose loss of memory is so severe they are unable to understand the proceedings against him or to assist in their own defence. The Court found Mr. Morrissey could “absorb, understand, recount and respond to oral testimony. He can communicate with counsel.” (at para. 44) As I will explain further, I find, on the evidence before me, Mr.

Jachetta cannot absorb, remember or respond to oral testimony. [ 35 ] I have also found the decision in R. v. Amey 2009 NSPC 29 helpful. Mr. Amey, a 72 year old, was diagnosed with dementia accompanied with delusions and behavioural disturbances due to multiple causes including vascular causes and substance abuse. One doctor had opined that his short-term memory was almost non-existent and his condition would be progressive and not improve (para. 3). These diagnoses are similar to those for Mr. Jachetta. Mr. Amey was found to be unfit. After he was under the purview of the Review Board, Mr.

Amey sought a second opinion from a psychiatrist who offered the opinion he was fit. All doctors agreed there had been some improvement in his condition while he was in hospital. The review board declared him fit and returned him to the Court. The Court conducted another fitness hearing and again determined he was unfit. Mr. Amey argued he was fit and wanted to have a trial on his criminal charges. Ross J. held: Communication with counsel must be informed, at least on a basic level, by an awareness of the proceedings as they unfold.

Memory of the impugned conduct, as well as the ability to absorb and retain memory of things which unfold at trial are both important to giving instructions. The instructions need not display analytical thinking and do not have to be in the client’s best interests. However, presence and participation suggest that the accused be more than a bystander.” (at para. LXII) The Court concluded, for an accused to be fit, he “must possess the ability to engage with the trial process in a meaningful way.” (para. LXV). The Court found Mr.

Amey’s dementia prevented his ability to process and remember things that would happen during the trial. (para. LXVII). The Court found Mr. Amey would not be able “to retain and process, even at a basic level, what he might be told of these events by other witnesses.” (para. LXVII). Ross J. concluded he was unfit to stand trial. [ 36 ] Another hearing regarding Mr. Amey’s fitness took place within the year, R. v. Amey 2010 NSPC 100 . This time the Court found Mr. Amey had established on a balance of probabilities he was fit. Mr. Amey had been given police reports and given the opportunity to study them.

His treating psychiatrist said with notes and cues he might be able to stay on track and recall things. He had made notes on these reports which were “organized and generally on point.” (para. 22). The treating psychiatrist had also seen Mr. Amey interact with counsel on the morning of the hearing where he acknowledged he could be found guilty and his comments on that point were balanced and coherent. [ 37 ] Dr. Casiano found Mr. Jachetta’s case to be a challenging one. When this same line from Dr. Casiano’s report was put to Dr. Waldman in cross-examination, he disagreed.

He said, to him, this was a very straightforward case of unfitness. Mr. Jachetta’s Evidence [ 38 ] Mr. Jachetta testified in his own defence. He began his testimony by saying he thought he was 73 years old (in fact he is 72). He knew his birthdate was December 24, 1947. He knew he was married to Trudy. He said he had two children who were “around” 26 and 24 years of age. I note Dr. Waldman’s report identifies the children of his current marriage as being 23 and 24. Dr. Waldman’s report also advises he has two sons from a previous marriage whose ages he did not know.

He did not mention these two children in the evidence before me. When Mr. Jachetta was asked if he had ever been suspended or disbarred from the practice of law, he said, “I don’t think so.” He responded with those words frequently in his testimony. He provided a definition of theft (“you take something that is not yours”) but when the theft charge was read to him from the information, he said, “I don’t know what that means.” This was his response, every time he was read the charge directly from the information. He did say, he could remember his lawyer telling him earlier today he was charged with theft.

When asked if he knew what fraud meant, he said ‘fraud is lying about something.’ He said he was not aware he was facing a charge of fraud. He said he did not remember being arrested by the police. [ 39 ] When asked in direct examination, if he knew why we were having this hearing, he said, “I don’t know what everybody is saying…They are saying I am mentally defective. I am ok, I know what’s going on.” He said he forgets a lot of things and has a “real problem with remembering stuff.” At the conclusion of his testimony, I asked him if he understood what I was doing there that day. He responded I was the judge.

When I asked him if he knew what decision I was being asked to make, with some apparent embarrassment or sheepishness, he said, “I don’t know what you’re here for, sorry.” [ 40 ] In direct examination, he said he did not remember meeting any of the three doctors who testified. He said he did understand that people who are found guilty go to jail. He was asked if he understood that if he was found guilty, he could go to jail he said, “I don’t know why I would have to go to jail, I did not do anything wrong.” [ 41 ] In cross-examination, he was asked questions about his legal career.

He could remember he had worked at the Public Trustee’s office. Once the name of his boss was suggested to him, he seemed to recall the name. He provided the name of one other lawyer he worked with but could not come up with the name of a female lawyer or any other lawyers he worked with. He recalled he had worked in private practice for a few years. He testified he did “land deal work, estate work, mental health work.” He said he stopped practicing because he got too old and too tired to do the work.

He could not recall the name of the secretaries he and his one partner worked with. [ 42 ] When it was put to him that his lawyer and two other lawyer friends had told him dozens of times what he was charged with, he said he did not remember that. He added, “I don’t know, why would they tell me that?” He again said, “I don’t know why we are here, I don’t know what you are saying.” [ 43 ] Crown counsel suggested Mr. Jachetta had a reasonable memory of his practice, he could remember some of the people he practiced with, but when it came to his disbarment and charges, one encountered a black hole in his memory.

He suggested this did not have the ring of truth.

[ 44 ] In assessing the credibility of Mr. Jachetta’s testimony, I have to assess it together with all of the evidence I have been provided. His presentation was consistent with the presentation described by the doctors. He has a physical tremor, walks with a slow, stooped gate and takes time to formulate his words. He answered in short, simplistic sentences. He appeared to be answering the questions to the best of his ability. As Dr. Hill testified, I do not find it inconsistent that he has memory of some things and not others.

It could be the emotional turmoil he would feel facing his criminal charges, plays a role in his lack of memory of the charges. However, given the physiological confirmation of diabetes, including physical manifestations described in Dr. Waldman’s report of a foot ulcer and damage to his eyes, which has resulted in vascular complications and contributes to his dementia, given the neurological confirmation of Parkinson’s disease, I find his responses are consistent with dementia and resulting memory loss. Conclusion [ 45 ] In the context of all of the evidence, I believe Mr.

Jachetta when he tells me he does not know what this criminal proceeding is all about. While he appeared to have a momentary understanding that people were saying he was “mentally defective”, by the end of his testimony he could not link that to the decision the Court was required to make. I find he is unfit because he is suffering from a neuro- cognitive disorder or dementia which is a mental disorder. This mental disorder prevents him from understanding the nature or object of the criminal trial proceedings.

While he can understand in a very rudimentary and general way a conviction for a criminal offence can lead to a jail sentence, he cannot apply or rationalize how this would apply to him. I find his memory deficits would not allow him to remember the evidence of witnesses for any appreciable period of time, such that he could meaningfully participate in a trial or the presentation of his defence. I recognize the law does not require him to have a memory of the event, but he needs to have a sufficient working memory to understand and remember the testimony of witnesses. And, finally, while Mr.

Jachetta can communicate, in that he can understand and respond to questions, he cannot retain that he is charged, such that he can communicate with counsel in a meaningful way related to his defence of the criminal charges. [ 46 ] I find Mr. Jachetta has established on a balance of probabilities he is unfit to stand trial. “ORIGINAL SIGNED BY:” Anne Krahn, A.C.P.J.