R. v. R.L.F., 2010 NBPC 35

IN THE YOUTH JUSTICE COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF WOODSTOCK Citation: R. v. R.L.F., 2010 NBPC 35 Date: 2010-11-18 Docket: Y 159007 Between: Her Majesty, The Queen, - and - R.L.F. , Ruling on Motion Before: Date(

s) of hearing: Chief Judge R. Leslie Jackson October 28, 2010 Appearances: Christopher Lavigne - for the Crown Kimberley Monteith - for the Accused JACKSON, C.P.C.J. Introduction: [ 1 ] R.L.F. is charged with assault while carrying a weapon and uttering a threat to his grandmother with whom he lives. An assessment pursuant to

section 672.11 of the Criminal Code was ordered in June of this year and a report prepared by Dr. Holly, a psychiatrist with Restigouche Health Authority, was received by this court on July 16. Defence Counsel disagreed with the report’s conclusions and asked for a hearing pursuant to

section 672.23 on the issue of this young person’s fitness to stand trial, which hearing was held on October 28, 2010. Facts [ 2 ] R.L.F. is a 15 year old boy who suffers from Fetal Alcohol Syndrome, Attention Deficit Hyperactivity Disorder, and Myoclonic Jerky Seizures. Cognitively he operates at the level of a younger child, either 7 or 8 years of age, rather than his chronological age.

He attends a specialised class in school and even then only one hour per day for two days a week. [ 3 ] Although R.L.F. can dress, feed, and bathe himself he needs constant supervision and reminding to attend to such things as routine household chores and personal hygiene. His grandmother, with whom he has lived since he was three months old, his Social Worker and even Dr. Holly describe a boy with limited vocabulary and thought processes, whose answers are generally monosyllabic and who exhibits limited eye contact while speaking. [ 4 ] Dr.

Holly opined that while R.L.F. has a very limited vocabulary and has a deficit in understanding abstract concepts he has “a reasonable understanding but not a competent understanding” of the court process. For example when Dr. Holly questioned R.L.F. as to

the role of the Judge, Defence lawyer and Crown Prosecutor, he was able to get an answer from him only after Dr. Holly drew a sketch of a courtroom showing their relative positions. Even then a lawyer was ”some who helps you” and the Judge’s role was to decide “whether you went home or went to jail.” [ 5 ] In the course of the hearing on this motion Defence Counsel attempted to call R.L.F. to the stand to testify, however he would not do so even when coaxed by his grandmother and Social Worker. That action served as confirmation of his grandmother’s testimony that R.L.F. doesn’t talk when he doesn’t want to.

Analysis and Decision [ 6 ] The test for fitness to stand trial is set out in s. 2 of the Criminal Code as: unfit to stand trial: "unfit to stand trial" means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to (

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

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

c) communicate with counsel; As noted in R. v. Morrissey (207) 2007 ONCA 770 (CanLII) , 227 C.C.C. (3d) 1 , the concept of fitness to stand trial is different from that of testimonial competence. At paragraph 25 of Morrissey Blair J.A. says: "Testimonial competence" is not a component of that definition. Rather, the ability to "communicate with counsel" is. Although one of the elements of testimonial competence is the ability "to communicate the evidence ", communicating the evidence and communicating with counsel are not necessarily the same things.

Moreover, testimonial competence and fitness for trial are different, albeit related, concepts, and are founded upon different rationales.

In my view, therefore, although factors relating to an accused person's ability to testify may be relevant to the fitness inquiry -- as, indeed, the trial judge instructed the jury in this case -- the testimonial competence of the accused, as contemplated at common law and pursuant to s. 16 of the Canada Evidence Act, is not a condition precedent to the accused being declared fit to stand trial.” In Morrissey the Defendant was asserting he was unfit to stand trial as he could not recall the facts relating to the charge and therefore could not properly instruct counsel. [ 7 ] Blair J.A. goes on to say at paragraph 27: “ In R. v.

Taylor (1992), 1992 CanLII 7412 (ON CA) , 77 C.C.C. (3d) 551 , [1992] O.J. No. 2394 (QL) (C.A.) , this Court recognized that the new s. 2 definition "statutorily entrenches the extensive case law in this area" and concluded that to be found fit for trial an accused must satisfy a "limited cognitive capacity test." This threshold is not high. …… Nonetheless, the "limited cognitive capacity" test has been accepted across the country and was adopted by the Supreme Court of Canada in R. v. Whittle (1994), 1994 CanLII 55 (SCC) , 92 C.C.C. (3d) 11 at pp. 25-26 .

It requires only a relatively rudimentary understanding of the judicial process -- sufficient, essentially, to enable the accused to conduct a defence and to instruct counsel in that regard. It is in that sense that the accused must be able "to communicate with counsel" and relate the facts concerning the offence.” and continues later at paragraph 31: “ … Taylor stands for the propositions that (

a) the "limited cognitive capacity" test governs the determination of fitness to stand trial, and (

b) that this test does not require the accused person to be capable of giving instructions to counsel that are in his or her best interests.” [ 8 ] While an accused must only have a rudimentary understanding of the judicial process, the right to make full answer and defence requires something more than mere physical presence at the trial.

Blair J.A. touches on these issues at paragraphs 36 and 39 of Morrissey (Supra): “[36] An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles 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), 1991 CanLII 3882 (QC CA) , 63 C.C.C. (3d) 149 (Que. C.A.) at pp. 172-173 and 181; R. v. Roberts (1975), 1975 CanLII 1394 (BC CA) , 24 C.C.C. (2d) 539 (B.C.C.A.) . Meaningful presence and meaningful participation at

the trial, therefore, are the touchstones of the inquiry into fitness. [39] First, as indicated above, the ability to communicate the evidence (for purposes of testimonial competence) and the ability to communicate with counsel (for purposes of fitness for trial), are not the same concepts. The former evokes the capacity to perceive, recollect, and communicate matters relating to the issues before the court. The latter contemplates the ability to communicate with counsel for the purposes of conducting a defence, considering counsel's advice, and giving instructions with respect to the defence.

As Carrothers J.A. put it in R. v. Roberts , supra , at p. 545 -- in language that is still pertinent, albeit pre- Charter , and that was picked up by the trial judge in this case in her charge at the fitness hearing: It is a prerequisite to any criminal trial that the accused be capable of conducting his defence. Subject only to disruptive conduct on his part, he must be physically, intellectually, linguistically and communicatively present and able to partake to the best of his natural ability in his full answer and defence to the charge against him. [Citations omitted.

Emphasis added].” [ 9 ] The Quebec Court of Appeal in R. v. Steele (1991) 1991 CanLII 3882 (QC CA) , 63 C.C.C. 3d) 149 , a decision written by Fish J.A.(as he then was), came to a similar conclusion as to the necessary qualities an accused must have in order to be able to conduct his defence describing them thus: “5. An accused is incapable of conducting the defence, within the meaning of s. 615 of the Criminal Code , if he or she: (

a) cannot distinguish between available pleas; (

b) does not understand the nature or purpose of the proceedings, including the respective roles of the judge, jury and counsel; (

c) does not understand the personal import of the proceedings; (

d) is unable to communicate with counsel, converse with counsel rationally or make critical decisions on counsel's advice; or (

e) is unable to take the stand, if necessary” [ 10 ] Given the clear limitations of R.L.F. in vocabulary, in conversing with strangers, and in comprehending abstract concepts such as guilt, innocence or motive, it is clear to me that he is incapable of participating in any meaningful way in the trial process including his inability to discuss options with counsel and to give or receive instructions through the course of the trial. I am therefore satisfied on a balance of probabilities that R.L.F. is unfit to stand trial. Dated at Woodstock this 18 th day of November, 2010. ______________________________ R. Leslie Jackson C.P.C.J.