2011 QCCA 803, 2011 QCCA 803

Kaluza c. R. 2011 QCCA 803 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004704-100 et 500-10-004710-107 ( 500-01-010709-076 ) MINUTES OF THE HEARING DATE: April 27, 2011 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A. MARIE-FRANCE BICH, J.A. NICOLE DUVAL HESLER, J.A. N o : 500-10-004704-100 ( 500-01-010709-076 ) APPELLANT ATTORNEY(

S) LELAND KALUZA Mtre Gaétan Bourassa DES LONGCHAMPS, BOURASSA, TRUDEAU & LAFRANCE AVOCATS RESPONDENT ATTORNEY(

S) HER MAJESTY THE QUEEN Mtre Geneviève Dagenais. CRIMINAL AND PENAL PROSECUTING ATTORNEY

On appeal from a judgment rendered on May 6, 2010 by the Honourable Mr. Justice Martin Vauclair of the Quebec Court, district of Montreal. NATURE OF THE APPEAL : Unfit to stand trial N o : 500-10-004710-107 (500-01-010709-076) APPELLANT ATTORNEY(

S) LELAND KALUZA Mtre Gaétan Bourassa DES LONGCHAMPS, BOURASSA, TRUDEAU & LAFRANCE AVOCATS RESPONDENT ATTORNEY(

S) HER MAJESTY THE QUEEN Mtre Geneviève Dagenais. CRIMINAL AND PENAL PROSECUTING ATTORNEY On appeal from a judgment rendered on June 18, 2010 by the Honourable Mr. Justice Martin Vauclair of the Quebec Court district of Montreal.

NATURE OF THE APPEAL : Order (treatment) Clerk: Marcelle Desmarais Courtroom: Antonio-Lamer HEARING 9 h 36 Submission by M. Leland Kaluza. 9 h 59 Submission by Mtre Gaétan Bourassa. 10 h 19 Submission by Mtre Geneviève Dagenais. 10 h 26 End of arguments of both parts. 10 h 26 Suspension. 11 h 03 Resumption. BY THE COURT: Judgment, see page 3. Marcelle Desmarais Clerk BY THE COURT JUDGMENT [ 1 ] On July 7, 2010, the Appellant was granted an extension of the delay to file a notice of appeal from a judgment rendered on May 6, 2010, concluding that he was unfit to stand trial.

By then, he had also filed an appeal against a subsequent judgment rendered on June 18, 2010, ordering confinement for the purpose of a forced treatment. [ 2 ] During the hearing, the Appellant testified before the Court and some exhibits were filed, the whole as authorized by ss. 672.73 and 683 of the Criminal Code . The Appellant has made it clear that he understands the consequences of undergoing a trial for the offences with which he is charged.

He has also made it clear that he is one person who goes by two names, the one given at birth (Leland Kaluza) and a more recent one (Yoseph Yisrael) revealed to him when he became an adherent of the Hebrew-Israelite faith, a religious movement which is listed in Melton's Encyclopedia of American Religions .

On a balance of probabilities, the Court considers that the Appellant has shown to be now fit to stand trial under s. 672.32. [ 3 ] Moreover, with great respect, the Court is of the opinion that the evidence below was insufficient to rebut the presumption of fitness (s. 672.22) and to justify the order that the Appellant was unfit to stand trial (s. 672.78 (1)). From the first judgment, it appears that the judge thought that while the Appellant did not necessarily exhibit a double personality, he was confused as to who would be

affected by the proceedings (par. 57 of the judgment a quo). Though certain statements made by the appellant before the judge of firstinstance may be understood that way, others indicate that he assumes full responsibility for his acts.

In addition, the medical evidencewas ambivalent on the seriousness of his "psychosis", "the nature of this pathology would remain to be precised", (transl.) (M.A. p. 231).When asked by the Crown's attorney whether the Appellant was fit or unfit to appear in front of the Court as of today (March 29, 2010),the sole psychiatrist who saw the Appellant answered: "This decision does not belong to me. I would rather leave that to the Court"(M.A. p. 195).

In light of the weakness of the medical evidence, the judge should have considered ordering a second expertise beforeconcluding that the Appellant was unfit. [4] On the whole, the Court considers that there was not enough evidence to conclude that Appellant was unfit to stand trial,considering the teachings of Fish J.A. (as he was then) in R. v.

Steele (1991) (QC CA), 63 C.C.C. (3d) 149 (C.A.).The first judgment appealed from must be set aside under s. 672.78(1)(a). [5] Although the issue is now moot, the Court adds, with regards to the second judgment, ordering treatment under s. 672.58, thatthere is no doubt that antipsychotic treatments are most intrusive and that the order for treatment in detention at Institut Pinel, as opposedto an external clinic, makes the ordered treatment all that more intrusive. [6] Such an order was unwarranted, particularly in light of the requirements of

section s. 672.59 and of the psychiatrist's assertionthat he could not predict the impact of the antipsychotic treatment he was suggesting on Appellant's pathology. In the Court's opinion,there was insufficient medical evidence to order such an invasive treatment procedure. [7] FOR THESE REASONS, the appeals are allowed, both judgments are set aside and the Appellant is declared fit to stand trial(s. 672.78(3)(c)) and proceedings shall continue as if the issue of fitness of the Appellant had never arisen (s. 672.28). PIERRE J. DALPHOND, J.A. MARIE-FRANCE BICH, J.A. NICOLE DUVAL HESLER, J.A.