HER MAJESTY THE QUEEN Respondent - v. -, 2003 ABCA 105

R. v. L.S.C., 2003 ABCA 105 Date: 20030403 Docket: 9903-0501-A IN THE COURT OF APPEAL OF ALBERTA ____________________________________________________ THE COURT: THE HONOURABLE MADAM JUSTICE RUSSELL THE HONOURABLE MR. JUSTICE BERGER THE HONOURABLE MR. JUSTICE RITTER ____________________________________________________ BETWEEN: HER MAJESTY THE QUEEN Respondent - and - L.S.C. Appellant (Accused) Appeal from the Conviction by THE HONOURABLE MR. JUSTICE V.W.M. SMITH Dated the 19 th day of November, 1999 ____________________________________________________ REASONS FOR JUDGMENT

____________________________________________________ COUNSEL : S. M. L. BILODEAU For the Respondent L.G. ANDERSON, Q.C. For the Appellant ____________________________________________________ REASONS FOR JUDGMENT ____________________________________________________ PER CURIAM : 1 This appeal concerns the appellant’s fitness to stand trial and the effectiveness of his trial counsel. FACTS 2 The appellant was tried and convicted of multiple counts of historical acts of gross indecency, indecent assault and rape between 1961 and 1969.

He was sentenced to a global term of imprisonment for eight years. 3 At the outset of the trial, the fitness of the accused to stand trial was considered. Three witnesses were called: Dr. George M. Pugh, Ph. D., C. Psych., Consultant Psychologist of the Institute of Psychology and Law, for the appellant, and Drs. Mary-Anne Back, Psychologist, Forensic Assessment & Community Services, Alberta Hospital and Dr. Yuri Metelitsa, M.D., Ph.D., Dr.

Sci., Psychiatrist, Forensic Assessment & Community Services Associate Professor, Department of Psychiatry, University of Alberta, on behalf of the Crown. 4 We do not propose to recite the testimony of these expert witnesses. Dr. Pugh’s opinion was that the appellant was unfit to stand trial. Both Dr. Back and Dr. Metelitsa were of the opinion that while the appellant suffered from mental illness he met all the elements of the traditional test regarding fitness to stand trial. 5 The trial judge preferred the evidence of Dr. Back and Dr. Metelitsa and found the appellant fit to stand trial.

ISSUES 6 The appellant argues that counsel at trial was ineffective and that this has resulted in a miscarriage of justice. Further, he argues that, by reason of his condition, he was unable to effectively instruct counsel and was unfit to stand trial, and that this has resulted in a further miscarriage of justice.

7 Hence, the issues for this Court to consider are the following: 1. Did the trial judge err in finding that the appellant was fit to stand trial? 2. In the alternative, was the appellant’s condition during trial such that it warranted a second fitness hearing, or such that there has otherwise been a miscarriage of justice? 3. Did trial counsel’s conduct of the defence result in a miscarriage of justice? 8 On appeal, the appellant applied to adduce fresh evidence, in the form of an affidavit from Dr. Block, attaching a report dated March 14, 2002, commenting upon the appellant’s perceptions of his trial.

Whether this affidavit should be admitted must be considered with respect to each of the issues on appeal, and the appellant’s motion will be considered as part of the analysis of those issues. LEGISLATION 9 The relevant sections of the Criminal Code (the “ Code ”) follow: 2. In this Act, ... “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; ... 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 to stand trial. 672.23

(1) Where the court has reasonable grounds, at any stage of the proceedings before a verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on application of the accused or the prosecutor, that the issues of fitness 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 stand trial. ANALYSIS 1. Did the trial judge err in finding that the appellant was fit to stand trial?

(

a) The test for fitness 10 The test as set out in R. v. Taylor (1993), 1992 CanLII 7412 (ON CA) , 77 C.C.C. (3d) 551 (Ont. C.A.) is the “limited cognitive capacity” test. The Ontario Court of Appeal in Taylor declined to modify this test to require that an accused be able to act in his or her best interests. Lacourciere J.A, for the Court, held at 567: The “limited cognitive capacity” test strikes an effective balance between the objectives of the fitness rules and the constitutional right of the accused to choose his own defence and to have a trial within a reasonable time.

In asking the court to require that the accused be able to act in his own best interests, the respondent is asking this court to adopt the higher threshold “analytic capacity” test for determining the accused’s fitness to stand trial.

This test has clearly been rejected by the courts. 11 He set out the appropriate test as follows, at 564: Under the “limited cognitive capacity” test ... the presence of delusions does not vitiate the accused’s fitness to stand trial unless the delusion distorts the accused’s rudimentary understanding of the judicial process... [U]nder this test, a 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/her counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence.

It is not relevant to the fitness determination to consider whether the accused and counsel have an amicable and trusting relationship, whether the accused has been co-operating with counsel, or whether the accused ultimately makes decisions that are in his/her best interests. 12 There are strong interests, both public and personal, in an accused being fit to proceed to trial. The public interest is in ensuring that persons who are accused of committing crimes are brought to justice. The personal interests of the accused are twofold.

First, a person accused of a crime has a right to his “day in court” and to make full answer and defence to the charge. Second, a person who is declared unfit to stand trial risks being hospitalized indefinitely until considered “fit”.

Depending upon the extent of the person’s condition, such incarceration could theoretically be longer than any sentence the accused might have received if tried and convicted. 13 Thus, the test for fitness must not be so low as to allow accused persons to avoid culpability for criminal offences simply because they harbour irrational beliefs unrelated to those offences or their ability to understand trial proceedings, nor so high as to send to trial those who, due to their condition, can not adequately make a full answer and defence. 14 The “limited cognitive capacity” test in Taylor , supra, sets the bar at a level that effectively balances these considerations.

Moreover, this test was approved by the Supreme Court in R. v. Whittle , 1994 CanLII 55 (SCC) , [1994] 2 S.C.R. 914 at para. 32 . This is the test which must be used when determining whether an accused is fit to stand trial. (

b) The admissibility of fresh evidence 15 In R. v. Lévesque , [2000] 2 S.C.R. 487, 2000 SCC 47 , the Supreme Court affirmed the applicable principles governing the discretion of an appellate court to admit fresh evidence: (1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. 16 Insofar as Dr. Block’s report is adduced with respect to whether the trial judge erred in concluding the appellant was fit to stand trial, it does not meet this test.

The bulk of the report addresses the appellant’s background, which is already covered in the reports before the trial judge, and could not be expected to have affected the result below. 17 The essential element of the report, from the appellant’s perspective, is its description of his perception of the trial process in the following terms: Client’s Perspective : During the court process, Mr. [C] said he just sat and watched the events unfold, “listening to all that bullshit”.

During the course of the proceedings, his lawyer wanted him to take the stand regarding the government involvement. “I agreed, but the lady prosecutor was nearby. She shook her head at the judge and made faces. They wouldn’t let me testify. It would have all come out”. His perception, albeit persecutory in nature, regarded the legal process as being flawed and discriminatory, a logical conclusion in light of these distortions. 18 Had this perception been disclosed to the court no doubt it would have raised a flag regarding the appellant’s continued fitness to stand trial.

In this regard s. 672.23(1) of the Code makes it clear that fitness may be revisited at any stage of the proceedings if there are reasonable grounds to believe that the accused no longer, or never did, meet the test for fitness to stand trial. 19 Doubtless, the appellant’s post-trial perspective as recorded in Dr. Block’s report would not be admissible under the Lévesque test for fresh evidence regarding the initial fitness ruling. Facts arising after that ruling cannot be relied upon retrospectively.

Nonetheless, it may be admissible in relation to the question of whether the issue of fitness should have been readdressed. We will consider that issue later in these reasons. (

c) Application to this case 20 The trial judge correctly applied the test set out in Taylor , supra, in determining that the appellant was fit to stand trial. As stated by the appellant’s own expert, Dr. Pugh, in his report: Mr. [C] realizes that he is facing a number of sexual assault charges. He realizes that there are seven victims alleging inappropriate sexual behaviour. He understands the roles of his lawyer, the crown prosecutor and judge.

He realizes that his sentence, if convicted, could possibly face a lengthy period of incarceration.[sic] He also understands that, if he were to plead guilty, he may receive a lighter sentence. However, he refuses to plead guilty. He states that he is guilty for some but not all of the charges. It was my impression that he acknowledged some guilt. (A.B.

III, E13) 21 Though the appellant harboured, and may continue to harbour, mistaken beliefs concerning why and how the criminal charges against him have been brought, the trial record does not reveal that either his understanding of the judicial process or his ability to communicate with counsel were compromised. There was evidence from which it was reasonable to conclude that he understood the nature, object, and possible consequences of the trial proceedings, could adequately instruct counsel, and was fit to stand trial.

2. In the alternative, was the appellant’s condition during trial such that it warranted a second fitness hearing, or such that there has otherwise been a miscarriage of justice? 22 This issue relates to the conduct of the trial, and not to whether the trial judge erred in a factual or legal determination. Thus, the factors laid out in R. v. Lévesque , supra , do not apply as they are not relevant when the trial process itself is questioned. Rather, the general “interests of justice” standard set out in s. 683(1) prevails: R. v. W.(W.) (1995), 1995 CanLII 3505 (ON CA) , 100 C.C.C. (3d) 225 (Ont. C.A.); R. v.

Sauve (1997), 1997 CanLII 12544 (BC CA) , 121 C.C.C. (3d) 225 (B.C.C.A.); R. v. Barbeau (1996), 1996 CanLII 6391 (QC CA) , 110 C.C.C. (3d) 69 (Qc. C.A.). 23 As discussed above, the report of Dr. Block does not, when read in conjunction with the other reports before the court, indicate that the appellant was not fit to stand trial, when the trial commenced. Nor does it establish that the appellant became unfit during the trial. However, if at the time, defence counsel was aware of his client’s perceptions of the trial, he may have been obliged to ask the Court to reconsider the issue of fitness.

If other factors suggested to defence counsel that the appellant was no longer fit to stand trial, the report could be seen as a stepping stone to establishing that the appellant became unfit as the trial progressed and may be admissible on appeal for that purpose. 24 Unfortunately nothing from defence counsel who conducted the trial was presented at this appeal regarding his conduct or perception of the trial.

This information would be crucial to any determination regarding the appellant’s continued fitness to stand trial. 25 Counsel for the appellant advised that no fresh evidence from counsel who conducted the trial was presented to us because the appellant may be unable to waive privilege because of his mental illness. We accept that this is a legitimate concern and will deal with it later in this judgment. 3. Did trial counsel’s conduct of the defence result in a miscarriage of justice? 26 The appellant argues that trial counsel was ineffective, resulting in a miscarriage of justice. (

a) Admission of fresh evidence 27 This issue also relates to the conduct of the trial, such that the proper inquiry is whether admission of the fresh evidence would be in the interests of justice. The issue is whether the proposed fresh evidence is capable of confirming the appellant’s allegations of ineffective counsel. Again, information from trial counsel would be crucial as we can only speculate on any deficits under which trial counsel operated. The report may be admissible as a stepping stone to establishing ineffective counsel. We therefore defer in deciding its admissibility until we have received the report of the commissioner as requested below. (

b) Effectiveness of counsel 28 In addition to Dr. Block’s report, the appellant relies on the transcript of the proceedings below to support his allegation that trial counsel was not effective. Counsel at trial did not cross-examine most of the witnesses who testified on behalf of the Crown. The limited cross-examination conducted was of questionable relevance. Trial counsel made few closing remarks, and conceded much of the Crown case. His entire final submission was as follows: I don't have a whole lot to say. I certainly echo the comments in the St. Pierre case on page 310.

As to what's happening to our papers and our television and our radio as to what is said or plays, it seems to be getting more common and more common and more common, and our attitudes towards sexual involvement is more liberal and more liberal. As to the difference between indecency, gross indecency, we're dealing with children, and it's pretty difficult objectively to -- to consider it. I don't think there's more that I can add than what my friend has said in the materials that she's provided.

I would respectfully submit that with respect to Counts 7 and 15, it was of a sexual nature, and I would submit that the Court would be hard pressed to -- it's very difficult, but with respect to Count 15 to -- to suggest that a rape was intended as opposed to the sexual interference, and similarly as to whether it was gross involvement with respect to Count 7. Certainly it's conceded there was indecent assault, but I really don't have anything further to add. (A.B. 195/1-24) 29 The Crown argues that it is not merely the actions of trial counsel that must be considered, but the reasons behind those actions.

It submits that the approach taken by counsel might reflect a deliberate strategic choice, or the constraints of ethical and professional responsibility. It urges that the lack of evidence from trial counsel should be fatal to the appellant’s position. 30 We note an increasing tendency on the part of appellate counsel to allege ineffective representation at trial without affording trial counsel the opportunity to respond to that allegation and explain the trial strategy, limitations and instructions. An attack on a lawyer’s competence strikes at the heart of that lawyer’s practice and professional reputation.

Kelly J.A. of the Ontario Court of Appeal considered this issue in the following terms: I consider it most unfortunate that any counsel, carried away by his enthusiastic support of his client’s cause, should permit himself, by reason of his client’s instructions, to make allegations inferring unjust conduct on the part of the Court, or unprofessional conduct on the part of brother solicitors without first satisfying himself by personal investigations or inquiries that some foundation, apart from his client’s instructions, existed for making such allegations.

His duty to his client does not absolve a solicitor from heeding his duty to the Court and to his fellow solicitors. R. v. Elliott (1975), 1975 CanLII 1501 (ON CA) , 28 C.C.C. (2d) 546 at 549. It would be inappropriate for this court to rule on whether the representation provided by trial counsel was ineffective or inadequate, absent an opportunity for input from that counsel. 31 The nature of the onus on the accused also supports the need for evidence from trial counsel. There is a: strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22 at para. 27 .

Absent evidence revealing that the approach of trial counsel was not the result of client instructions, strategic choices, or ethical constraints, it may be very difficult for an appellant to overcome this presumption of competence. 32 However, the way in which counsel handled the trial, as reflected in the transcript, is cause for some concern, particularly given the appellant’s assertion, albeit unsworn, in his Notice of Appeal, that trial counsel “did not question witness when I told him they (sic) were lying”.

This is coupled with evidence of the appellant’s mental condition which, while not, on this trial record, rendering him unfit for trial, would undoubtedly have made him a difficult client. Such a client might require an even greater effort by counsel to fully understand the position being asserted by the client, to consider whether the client's instructions could be followed, and to advise the client if those instructions may be unwise. Together, these factors suggest that it would be unduly harsh to dismiss the appellant’s claim, without first considering the position of trial counsel. 33 Section 683(1) (

e) of the Code allows this Court to appoint a special commissioner and to refer to that commissioner, for inquiry and report, any question that arises on an appeal that involves local investigation and cannot be conveniently inquired into by this Court. We consider it appropriate to appoint such a commissioner to inquire into the trial strategy employed by trial counsel, instructions trial counsel received, any limitations placed upon trial counsel by the appellant, and any ethical restrictions trial counsel considered himself to be under. Included in this inquiry is our direction that the commissioner inquire whether on the basis of the fresh evidence the

issue of fitness to stand trial ought now to be revisited or, ought to have been revisited during the trial. 34 However, this inquiry would require a written waiver of solicitor-client privilege by the appellant with respect to trial counsel. Accordingly, we propose to provide the appellant time to consider whether to provide that waiver. We direct that any such waiver must be filed with the Court within 30 days from the date of this judgment.

Absent such waiver, the lack of essential evidence will be fatal to the appellant’s position, and the appeal will be deemed to be dismissed. 35 If appellate counsel is concerned about the appellant’s ability to waive privilege, we note that to the extent that civil appeal rules apply to criminal matters, Rule 60 provides for court appointment of a Next Friend.

Such a person would be in a position to waive solicitor-client privilege on behalf of the appellant. 36 If a waiver is provided, decision on these aspects of the appeal will be reserved, pending completion of this inquiry and receipt of the commissioner’s report. DISPOSITION 37 The trial judge’s finding that the appellant was fit to stand trial is affirmed. The trial record reveals no miscarriage of justice in this regard.

This aspect of the appeal is dismissed. 38 A written waiver of solicitor-client privilege must be filed with the Court within 30 days of the date of this judgment, failing which the appeal will be deemed to be dismissed. Upon filing of the waiver, a special commissioner will be appointed pursuant to s. 683(1) (

e) of the Code to inquire into the trial strategy employed by trial counsel, the instructions trial counsel received, any limitations placed upon trial counsel by the appellant, any ethical restrictions trial counsel considered himself to be under, and any factor which trial counsel considered or ought to have considered in addressing the issue of whether a further fitness application was required. If a waiver is filed, this aspect of the appeal will be reserved pending the report of the special commissioner. 39 We provide the same direction with respect to the issue of continued fitness to stand trial.

APPEAL HEARD on NOVEMBER 1, 2002 REASONS FILED at EDMONTON, Alberta, this 3 rd day of APRIL, 2003 ______________________________ RUSSELL J.A. ______________________________ BERGER J.A.

______________________________ RITTER J.A.