Her Majesty the Queen - v. -, 2016 SKPC 168

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 168 Date: December 20, 2016 Information: 24516876 Location: Hudson Bay _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wilfred Walter Goyak Appearing: Thomas Healey For the Crown Rosanne Newman, Q.C. For the Accused Pursuant to s. 486.4 of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or a witness, shall not be published in any document or broadcast or transmitted in any way JUDGMENT ON FITNESS HEARING J.F. RYBCHUK , J

INTRODUCTION [1] The accused, Mr. Goyak, is charged with sexual assault and unlawful confinement contrary to ss. 271 and 279(2) of theCriminal Code. A hearing was held pursuant to s. 672.23 of the Criminal Code to determine whether he is unfit to stand trial. AnAgreed Statement of Facts entered into evidence as Exhibit P-1 makes out a prima facie case that the accused committed the allegedoffences. The issue to be determined is whether Mr. Goyak is fit to stand trial.

THE LAW [2] “Unfit to stand trial” is defined in s. 2 of the Criminal Code as: unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instructcounsel 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; [3] “Mental disorder” is defined in s. 2 of the Criminal Code as “a disease of the mind”. [4] Sections 672.22 and 672.33 of the Criminal Code provide: 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. 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.

(2) An accused or a prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to standtrial. [5] The accused brought the application for a fitness hearing in this case, so the burden of proof lies on him to demonstrate on abalance of probabilities that he is unfit to stand trial. [6] The legal standard for fitness to stand trial is the “limited cognitive capacity” test established by the Ontario Court of Appealin R v Taylor, (1992) (ON CA), 77 CCC (3d) 551; [1992] OJ No 2394 and adopted by the Supreme Court of Canadain R v Whittle, (SCC), [1994] 2 SCR 914 at para 32: [32] The test for fitness to stand trial is quite different from the definition of mental disorder in s. 16.

It is predicated on the existence ofa mental disorder and focuses on the ability to instruct counsel and conduct a defence. That test which was developed under the common

law is now codified in s. 2 of the Code . . . . . . It requires limited cognitive capacity to understand the process and to communicate with counsel. In R v Taylor (1992), (ON CA), 77 CCC (3d) 551, the Ontario Court of Appeal, after reviewing the authorities, held that the trial judge erred inconcluding that the accused must be capable of making rational decisions beneficial to him.

At page 567, Lacourcière J.A., on behalf ofthe Court stated: The “limited cognitive capacity” strikes an effective balance between the objectives of the fitness rules and the constitutional right of theaccused to choose his own defence and to have a trial within a reasonable time.

Accordingly, provided the accused possesses this limited capacity, it is not a prerequisite that he or she be capable of exercisinganalytical reasoning and making a choice to accept the advice of counsel or in coming to a decision that best serves her interests. [7] This limited cognitive capacity test has been accepted across the country, including in Saskatchewan (R v Peepeetch, 2003SKCA 76 and R v Jobb, 2008 SKCA 156 [Jobb]) where the Saskatchewan Court of Appeal held in Jobb at para 21: [21] . . .

Limited cognitive capacity does not require analytic ability or, indeed, the need for the accused to appreciate his own bestinterest. In short, these authorities establish a very low threshold for fitness to stand trial in keeping with the policy objectives of theCriminal Code, and, in particular, with the right of the accused to make full answer and defence to the allegations with which he ischarged. [8] Limited cognitive capacity is the standard against which the accused’s abilities are measured with respect to each branch ofthe fitness test set out in s. 2 of the Criminal Code.

An accused person is fit to stand trial if he or she has at least a limited cognitivecapacity to be able to understand the nature, object and possible consequences of the proceedings and to communicate with counsel. Ifan accused person does not have at least a limited cognitive capacity to be able to understand the nature, object or possible consequencesof the proceedings or to communicate with counsel, he or she is unfit to stand trial. ANALYSIS [9] In this fitness hearing Dr. Mansfield Mela, MBBS, FRCPsych, FRCPC, MSc.

Psych testified by video and provided aPsychiatric Report filed as Exhibit D-1 along with his Curriculum Vitae entered as Exhibit D-2. It discloses that he has been a registeredpsychiatrist and consultant to Correctional Services of Canada - Regional Psychiatric Centre (Prairies) since 2000.

Since 2009 he hasbeen one of only two psychiatrists who are members of the Saskatchewan Review Board, an independent administrative tribunalestablished pursuant to the Criminal Code of Canada to make or review decisions and orders (i.e. dispositions) where a verdict of unfitto stand trial on account of mental disorder or not criminally responsible by reason of mental disorder has been made regardingan accused person.

He has conducted over 100 fitness to stand trial assessments for the courts and his responsibilities include ongoingassessment and management of individuals found unfit to stand trial or not criminally responsible. [10] He is also currently employed full-time as an academic at the University of Saskatchewan, College of Medicine - Psychiatry,where he teaches, researches and sees patients at the Royal University Hospital.

His further qualifications, experience, published papersand activities are outlined in his Curriculum Vitae, including: 1999 - Member, Royal College of Psychiatrists (MRCPsych) 2000 - Master in Psychiatry (MSc Psych) University of Wales, Cardiff, UK

2004 - Forensic Psychiatry, Fellowship Training, University of Ottawa 2004 - Certificate in Forensic Psychiatry, University of Ottawa 2008 - Vice President of the Canadian Academy of Psychiatry and the Law 2008 - Associate Lecturer, College of Law, University of Saskatchewan 2009 - Associate Professor, Psychiatry, University of Saskatchewan 2009 - 2011 Acting Head, Forensic Division of Psychiatry, University of Saskatchewan 2013 - Executive Member, Centre for Forensic Behavioural Science and Justice Studies, University of Saskatchewan 2014 - Fellow of the American Psychiatric Association 2014 - Fellow of the Royal College of Psychiatrists, London, UK [ 11 ] Dr.

Mansfield Mela was therefore qualified as an expert in the area of “assessing fitness for the purpose of proceeding with a trial”. He conducted a thorough interview of Mr. Goyak in the presence of his support persons, his sister Linda and brother-in-law Steve. They were not a distraction and provided valuable information that helped facilitate the interview process with Mr. Goyak particularly when he was unresponsive. In my opinion, a proper assessment could not have been conducted without their assistance. [ 12 ] In cross-examination Dr. Mela testified that he communicated with Mr.

Goyak with significant difficulty. There were basic things Mr. Goyak should have understood, but he did not. Mr. Goyak used a range of disparate and confusing terms throughout the interview. He talked about helping and taking care of his brother, but was also described as depending almost entirely on his parents and others for daily living activities throughout his life. He said a former employer described him as “the best worker”. Yet, Dr. Mela was still of the opinion that Mr.

Goyak’s cognitive disabilities were significant enough to disrupt his ability to learn and that he suffers from an inability to learn. [ 13 ] Dr. Mela satisfactorily explained in cross-examination that there are different forms of learning. For example, repetitive activity/tasks requiring subdural memory as compared to assessment/understanding of something complicated which requires explicit memory. Here, Mr. Goyak could not even write his name after 52 years. In my opinion, Dr. Mela did not need to know what specific tasks Mr.

Goyak performed at work on the farm in order for him to express the opinion that he had difficulty learning according to the screening test performed upon him consisting of the mini mental state examination. His opinion was not based on faulty assumptions, nor was he required to explore or investigate further every apparent inconsistency in what Mr. Goyak told him. This simply would not have been possible or practical given the confusing and disparate nature of the interview. Mental Disorder [ 14 ] Dr. Mela testified that Mr.

Goyak suffers from a mental disorder going back to as early as his birth which was described as “rough” and “he hardly made it”. He was born with a low birth weight and required oxygen almost immediately, which posed a significant risk to his brain.

[ 15 ] Mr. Goyak had a history of ‘double pneumonia’ which also would have affected his brain development. He was not able to learn in school. He attended special schools and received a special education. He was picked on while at school. He cannot read or write, not even his name, and he dropped out of school in Grade 5. He was described as slow to learn and easily taken advantage of in life. He depended on social assistance for sustenance. He experienced difficulty obtaining competitive employment. He lived in a supportive environment dependant on others most of his life.

He was also unable to describe his own family composition without having to depend on others to explain it to him. [ 16 ] Dr. Mela conducted a mini mental state examination of Mr. Goyak which correlated with the historical data about his intellectual disability. Mr. Goyak was easily distracted and could not maintain focus. His judgement was below average. His recall of items given to him to test his memory was deficient. The assessment of his cognitive abilities suggested abnormalities. [ 17 ] Dr.

Mela opined that even without a formal assessment of his cognitive ability, which is usually the prerogative of psychologists, Mr. Goyak suffers from an intellectual disability disorder meaning his cognitive abilities are below standard. He was diagnosed with a “significant intellectual impairment”. He has difficulties learning, retaining, recalling and using information. Mr. Goyak qualifies under the Diagnostic Statistic Manual (DSM) for the diagnosis of an Intellectual Disability Disorder. [ 18 ] In addition, Mr. Goyak displayed a sufficient amount of irrational fear for Dr.

Mela to conclude that he also suffers from an Unspecified Anxiety Disorder. The anxiety manifested itself in how worried he got, the stress, the tremors, the shaking, an increased heartbeat and the difficulty he had speaking. (

a) Understanding the Nature or Object of the Proceedings [ 19 ] Dr. Mela testified that Mr. Goyak has difficulty understanding the roles of the various people in court. He had been to court several times and knew who the officers of the court were. For example, he described the court “secretary” as the person who “takes everything down” which is technically correct. He also said of the judge “he asks a bunch of questions, stuff like that” but, he added little to that role even with additional prompting.

He eventually was able to acknowledge that a judge has the authority to sentence a convicted person, including to jail time and probation, but this was only after significant pushing and prodding which Dr. Mela had to do repeatedly throughout the entire interview process. [ 20 ] Dr. Mela was concerned with the ease with which Mr. Goyak intermingled lawyers with previous events and lawyers as if they were current now. He stated at page 4 of his report: It was difficult for him to articulate the difference in the roles of the lawyers. He recalled that his lawyer was female.

Of her role he said “ talk to her and she tells me what to do ”. When he talked about the role of the prosecutor “ ask her information and she tells me ”. He said he trusted the prosecutor because she is nice to him. He further added that the prosecutor was there to help him as “ she seems to help by making me feel happier in the courtroom, stuff like that ”. He repeated that the prosecutor also asked “ a bunch of questions ”. Of the police he thought that they “ stand up for you and they tell the judge about it ”.

He was not able to explain the role of an expert witness called by the court in this matter . . . [ 21 ] Dr. Mela felt Mr. Goyak’s description of the roles of the police and experts were unacceptable. Dr. Mela not only asked Mr. Goyak what he knew about the various processes in court, he went through and explained the processes to him. He then re-evaluated him on what he understood from what he had just explained to him and Mr.

Goyak fell short on the different processes such as what an oath is, what his defences were, what a plea bargain is and who can ask him to speak in court. [ 22 ] He stated further at page 4 of his report: He figured out that the sexual assault offence may be “ a big one ”. Being told to remain silent meant to him that “ if you say nothing then

they have nothing to go by and if you say something then they have something to go by ”. He was able to describe what guilty and not guilty pleas were. He thought he will be able to confront a witness that lied about him on the stand. Even with a description of the process he did not understand the meaning of and utility or implications of the oath. He did not understand what was behind a plea bargain nor did he have the strategic idea of involving himself in a plea bargain. [ 23 ] Dr. Mela went on to opine that based upon Mr.

Goyak’s intellectual difficulties, significant memory problems and difficulties in learning he was unable to understand the roles and purposes of the various players in court. Dr. Mela performed a balancing of the various factors and determined that the balance had been crossed demonstrating Mr. Goyak did not understand the nature or object of the proceedings. (

b) Understanding the Possible Consequences of the Proceedings [ 24 ] Mr. Goyak provided fragmented responses to Dr. Mela’s questions surrounding the meaning of a guilty or not guilty plea. When asked what those terms meant his first usual response was that he did not know. But when Dr. Mela pushed him, Mr. Goyak would talk about a plea meaning “ doing something ” and when pushed further he would say “ something somebody did ”. Dr. Mela opined that although he was able to understand what guilty and not guilty was, he had no idea about the implication of a guilty or not guilty plea. Even after Dr.

Mela tried to explain the consequences of a guilty or not guilty plea to Mr. Goyak, he was still unable to recount the procedures that would follow either plea. [ 25 ] Dr. Mela stated at page 4 of his report: He was asked to explain if he understood what direction the court processes steered at the various pleas. He did not know what will happen if he pled guilty or not guilty. [ 26 ] Dr. Mela used various strategies to prompt Mr. Goyak to explain what the possibilities of his sentence may be, but Mr. Goyak still had difficulties estimating what his potential sentences were for various offences. Mr.

Goyak exhibited considerable confusion which led Dr. Mela to believe that he either had no ability to learn or that he was too anxious to describe to him what the possible outcomes of the charges he was facing would be if he was found guilty. Mr. Goyak lacked the ability to understand he was in an adversarial system. This defeated his ability to prevent consequences from happening to him. Dr. Mela was therefore of the opinion that Mr. Goyak had an impaired ability to estimate or even understand what the consequences were with the possible outcomes of the proceedings. (

c) Ability to Communicate with Counsel [ 27 ] There is a divergence in the law surrounding the application of the limited cognitive capacity standard to the third branch of the fitness test. At one end of the spectrum is the Saskatchewan Court of Appeal decision in Jobb which held that an accused must only be capable of recounting the facts of the alleged offences. The Court stated at para 21: [21] . . .

The Court in Taylor made it clear that the limited cognitive capacity test as it pertains to the requirement of an ability to communicate with counsel requires only that an accused be capable of recounting the facts of the alleged crimes. Limited cognitive capacity does not require analytic ability or, indeed, the need for the accused to appreciate his own best interest. In short, these authorities establish a very low threshold for fitness to stand trial . . . . . . [39] . . .

According to that test, the Court’s assessment of an accused’s ability to conduct a defence and to communicate with and instruct counsel is limited to an inquiry into 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. . . . [43] . . . That Mr. Jobb be able to participate in his defence in “a meaningful way or assist his counsel during the course of a trial” is not,with respect, an accurate application of the limited cognitive capacity test, which requires only that he be able to recount the facts of theoffences with which he is charged to his counsel. [28] In Jobb the Saskatchewan Court of Appeal did not consider the Ontario Court of Appeal decision in R v Morrissey, 2007ONCA 770 [Morrisey]; leave to appeal to the Supreme Court of Canada denied:

(2008) SCC No 102, which represents the other end ofthe spectrum that the ability to communicate with counsel also includes the ability to seek and receive legal advice so that the accusedcan participate in the proceedings in a meaningful way. The Court stated in Morrissey at para 27: [27] . . .

Indeed, Taylor has been criticized in some parts of the academic and medical communities for setting the bar too low andallowing some individuals to be found fit when their ability to make necessary decisions about their trial is severely affected by mentalillness: see the commentaries collected in Barrett and Shandler, Mental Disorder in Canadian Criminal Law (Toronto: ThompsonCarswell, 2006), pp. 3-6 to 3-7, fn 15. . . . 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 beable “to communicate with counsel” and relate the facts concerning the offence. [28] The Taylor test for limited cognitive capacity has been condensed in some authorities and commentaries - in my view, imprecisely -into a simple “inquiry into whether an accused can recount to his/her counsel the necessary facts relating to the offence in such a waythat counsel can then properly present a defence” (Taylor, supra, at para. 44): see R. v. L.S.C., 2003 ABCA 105 , [2003] A.J.No. 388 at para. 10 (C.A.); R. v. Peepeetch, 2003 SKCA 76 , [2003] S.J.

No. 542 at para. 52 (C.A.). . . . [29] . . . The ability to communicate with counsel in the context of a fitness inquiry speaks to the ability to seek and receive legal advice.An inability to recount the facts immediately connected with the event giving rise to the charges is not the same as an inability tocommunicate with counsel in a way that permits an accused to seek and receive effective legal advice.

Moreover, there are instanceswhere an accused may wish to - or may be able to do nothing but - formulate a defence based on the contention that he or she is unable toremember the events in question. [29] The Ontario Court of Appeal also discussed the larger policy considerations surrounding the importance of an accused beingmentally fit to stand trial at para 35: [35] In Taylor, Lacourcière J.A. explained the rationale underpinning the fitness for trial concept.

At para. 50 he said: To determine whether the test should be modified as suggested by the respondent, one must remain cognizant of the rationale for thefitness rules in the first place. In order to ensure that the process of determining guilt is as accurate as possible, that the accused canparticipate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is maintained, and that, if necessary,the determination of a fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in ameaningful way.

At the same time, one must consider that principles of fundamental justice require that a trial come to a finaldetermination without undue delay. The adoption of too high a threshold for fitness will result in an increased number of cases in whichthe accused will be found unfit to stand trial even though the accused is capable of understanding the process and anxious for it to cometo completion. [Emphasis added]

. . . [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. vSteele (1991), (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.) at pp. 172-73 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. [30] Mr.

Goyak does not meet the test at either end of the spectrum in this case. Dr. Mela had to remind Mr. Goyak who thevictim was. Mr. Goyak described at least three different scenarios of how the offence of sexual assault may have occurred, includingstanding up, lying down or sitting down. Dr. Mela simply could not make sense from what he was telling him which of these wasaccurate. [31] Dr. Mela could not judge what the necessary facts and details relating to the charges were (i.e. why the offence wascommitted or where it was committed). Mr.

Goyak’s accounts were unreliable as he was providing different responses to differentquestions. Dr. Mela was unsure if the three different responses were due to Mr. Goyak’s intellectual deficiencies alone or a combinationof intellectual deficiencies and the anxiety he was experiencing. Mr. Goyak’s discordant accounts and his inconsistencies between themplayed into his anxiety and difficulty remembering. [32] Dr. Mela expected a minimum amount of knowledge about the circumstances of the offences and a consistency in recountingthese circumstances. Mr. Goyak lacked both. Dr.

Mela did not have the benefit of the Prosecutor’s Information Sheet or police versionof the events when interviewing Mr. Goyak, but this is of no consequence as the accused should still be capable of recounting andrelating his own version of what happened or did not happen regardless what the Crown says happened. Here, the accused simply couldnot do this. [33] Dr. Mela experienced difficulty keeping Mr. Goyak attentive to the interview in general. At times Mr. Goyak’s responsesseem to be completely off the question that had been asked of him. In the end, Mr.

Goyak’s ability to articulate words and describeevents was so impaired that Dr. Mela judged him incapable of communicating the essential facts of the case to a lawyer. [34] He was unable to register information, store information and recall information necessary to understand the nature of thecharges and communicate with his lawyer. He stated at pages 4 and 5 of his report: His account was difficult to follow. It was not clear where the events happened but he said he did not do anything to stop the victimfrom leaving. Mr.

Goyak’s account of the events related to the charges was simplistic and with minimal detail. . . . he denied anyinvolvement even though he mentioned how he was with the victim when his arm went numb. With a weak arm movement hedemonstrated what he thought may have been the basis of the accusation. He was noted to be confusing the statement about wanting a lawyer as part of his investigation. He provided unnecessary details about aprevious involvement with a lawyer.

His account for what happened changed to include accounts that the victim was touched whenstanding face to face to him and also when the victim was laying down asleep. . . . His anxiety predisposes him to changing his mind if some pressure arises. This will create a heavier burden for his lawyer. Hisunderstanding of the charge and procedure was determined to be lacking. This potentially could interfere with his narration of theevent. The lack of understanding of the extent of the offence and potential consequences may arise from his known symptoms of intellectualdisorder.

These flow from the description of cognitive deficits such as disturbed memory, awareness and planning. The anxiety worsenshis cognitive ability making his participatory performance worse when dealing with the case.

[ 35 ] Thus, Mr. Goyak was also incapable of seeking or receiving legal advice and participating in the proceedings in a meaningful way. Dr. Mela had this to say in the conclusion and recommendations

section of his report at page 6: 2. . . . his explanation left several gaps in knowledge and understanding of the roles of the officers of the courts, what stages the trial followed after significant decisions and plea. Such gaps leave sufficient enough information gaps that Mr. Goyak will be unlikely to participate in his trial. 3. Communication with Counsel: my interviews with him indicated that not only would he not be present in court, it is very unlikely he would follow the sequence of discussion even if he was physically present.

The level of anxiety also interacts with the distracting effects of the low intellect. Specific to the task at hand his account of the offence was difficult to follow. He required sufficient prompting and the accuracy of the tale will more likely than not be interfered with by his distraction, anxiety and poor recall. He may have trouble relaying the details as he struggles to keep the story straight. CONCLUSION [ 36 ] It was therefore Dr. Mela’s overall opinion of reasonable medical certainty that Mr. Goyak is unfit to stand trial.

He was able to determine that the intellectual disability was significant, but he could not determine the precise extent or magnitude of the disability or how permanent it may be. He recommended that a complete neuropsychological assessment be performed to determine whether this is a permanent problem or if it can be ameliorated. [ 37 ] I have no reason to dispute or disagree with Dr. Mela’s findings. In fact, I accept his findings and it has therefore been demonstrated to my satisfaction that Mr.

Goyak does not meet the limited cognitive capacity standard under any of the three branches of the fitness to stand trial test. I find him unfit to stand trial and direct that this matter be remitted to the Saskatchewan Review Board for disposition hearing. __________________ J.F. Rybchuk, J