R. v. Reimer, 2022 MBKB 183

Date: 20220922 Docket: CR 21-01-38804 (Winnipeg Centre) Indexed as: R. v. Reimer Cited as: 2022 MBKB 183 COURT OF king’S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, ) Appearances : ) ) ) Dan Angus, Andrew Slough and Charles Murray - and - ) for the Crown ) KARLTON DEAN REIMER, accused. ) ) ) ) ) ) Leonard Tailleur and Brittney Hoyt for the accused JUDGMENT DELIVERED: SEPTEMBER 22, 2022 Application for Assessment Order GREENBERG J. [ 1 ] Karlton Reimer is charged with two counts of second degree murder.

At trial, he intends to raise a defence of not criminally responsible (“NCR”) because of mental disorder. He has obtained a private psychiatric report to support that defence. Because Mr. Reimer has put his mental capacity in issue, the Crown seeks an order under s. 672.12 of the Criminal Code for the assessment of Mr. Reimer’s mental condition at the time of the offence. The defence is opposed to the Crown’s application. [ 2 ] This is not the first application by the Crown for an assessment order on Mr. Reimer. They were granted an order on March 11 th of this year.

However, because there were no beds available in the unit of the Health Sciences Centre (“PX3”) where forensic assessments are performed, the order expired before it could be implemented. The Crown says that a bed is now available and, therefore, seeks a new order. The defence argues that there is no jurisdiction to grant a second order. The defence says that the wording of the Criminal Code that authorizes assessment orders must be narrowly construed, allowing only one assessment order and that the order can be in effect for a maximum of 60 days.

They say that, once that time period has expired, the court has no jurisdiction to extend the order or to grant a new order. background [ 3 ] Mr. Reimer was arrested on March 25, 2021, with respect to the stabbing deaths of a couple in their home in rural Manitoba. On November 3, 2021, the Crown preferred a direct indictment. At the first pre-trial in this court on December 21, 2021, the defence advised that it would be pursuing an NCR defence and that it had retained a forensic psychiatrist for that purpose. The defence indicates that Mr. Reimer is not disputing the actus reus of the offences.

That is to say, he admits killing the victims. The only issue at trial will be his mental state at the time. [ 4 ] At the December pre-trial, the trial was set to commence on November 21, 2022, two months from now. On March 11, 2022, Champagne J. granted the Crown’s application for an assessment order. The order was stated to be for a period of 30 days with an extension of 60 days, for a total of 90 days. This timeframe did not comply with s. 672.15 of the Criminal Code , which restricts the total period of an assessment order, including extensions, to 60 days.

When counsel realized this, they arranged an appearance before Justice Champagne to address this issue. However, by that time, PX3 had been served with the order and advised counsel that there would be

no bed available to conduct the assessment within 30 days, or even 60 days. As a result, Crown counsel advised the court that they would allow the order to lapse. They indicated that they would re-apply for an order once they knew that a bed was available so that the assessment could be completed within the timeframe stipulated in the Code . [ 5 ] On July 4 th , Crown counsel received an email from PX3 indicating that a bed was available. The Crown then brought this application for a new assessment order. Dr.

Hygeia Casiano, the medical director for the adult forensic psychiatry program, testified at the hearing that Mr. Reimer is at the top of the triage list for admissions to PX3 and that he will stay at the top of the list until an order is granted. That is to say, a bed is now guaranteed. She also said that an assessment can be completed within 30 days. [ 6 ] The defence opposed the initial application by the Crown for an assessment order last March. That is to say, they objected to any order being granted even if the time frames in the Criminal Code were complied with.

I was not told why the defence opposed the initial order, but the argument that they now make is that the Crown had an opportunity to obtain an assessment of Mr. Reimer when the order was granted in March; they allowed that order to lapse; and there is no authority in the Criminal Code to grant a second order. [ 7 ] Delays in obtaining assessment reports have been a problem in Manitoba for many years. Dr. Casiano explained that PX3, a unit with just 15 beds and four psychiatrists (some of whom work in the unit on a part-time basis only), provides services for all forensic requirements in the province.

This includes fitness assessments, criminal responsibility assessments and assessments ordered by the Review Board after an NCR finding. As well, the unit provides treatment to patients in the criminal justice system, whether in or out of custody, where hospitalization is necessary for treatment. Because they have no control over the number of patients who must be admitted for treatment or how long a patient will be occupying a bed before being moved out, it is difficult to predict when a bed will become available.

The availability of beds has been diminished somewhat by the COVID pandemic; although COVID has also led to some improvements by precipitating the use of video conferencing to interview patients. While some assessments can be done without admitting the accused to PX3, Dr. Casiano testified that, where the charges are serious, as they are in this case, the protocol is to do the assessment on an in-patient basis so that the patient can be observed by staff over a period of time.

Criminal code provisions [ 8 ] The Criminal Code allows a court to make an assessment order at any stage of the proceedings on its own motion, on application by the accused or on application by the Crown. However, where the application is by the Crown, the court may only order an assessment where the accused puts his mental capacity for criminal intent in issue (as in this case) or where the Crown satisfies the court that that there are reasonable grounds to doubt that the accused is criminally responsible. The Criminal Code states that initial assessment orders are to be for no more than 30 days.

However, the order may be extended to a maximum period of 60 days. The relevant sections of the Criminal Code read: Assessment order 672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine . . . (

b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1); . . . Contents of assessment order 672.13

(1) An assessment order must specify (

a) the service that or the person who is to make the assessment, or the hospital where it is to be made; (

b) whether the accused is to be detained in custody while the order is in force; and (

c) the period that the order is to be in force, including the time required for the assessment and for the accused to travel to and from the place where the assessment is to be made. . . . General rule for period 672.14

(1) An assessment order shall not be in force for more than thirty days. . . .

(3) Despite subsections (1) and (2), a court or Review Board may make an assessment order that remains in force for sixty days if the court or Review Board is satisfied that compelling circumstances exist that warrant it. Extension 672.15

(1) Subject to subsection (2), a court or Review Board may extend an assessment order, of its own motion or on the application of the accused or the prosecutor made during or at the end of the period during which the order is in force , for any further period that is required, in its opinion, to complete the assessment of the accused.

(2) No extension of an assessment order shall exceed thirty days, and the period of the initial order together with all extensions shall notexceed sixty days. [emphasis added] issues and position of the parties [9] The Crown's application raises two issues. First, do I have jurisdiction to grant another assessment order? Second, assuming Ihave jurisdiction, should I grant an order? [10] As I said, the defence position is that the provisions of the Criminal Code are clear. The use of the word "shall" in s. 672.14and s. 672.15 indicates that the provision is mandatory.

An order is in effect for a maximum of 30 days, or up to 60 days, if an extensionis granted. The 30 days of the initial order in this case has passed and any extension of that order would have to be made at the time orbefore the initial order expires. [11] The Crown says that it is not seeking an extension of the original order. It is seeking a new order that can be completed within30 days. The defence says that there is no authority in the Criminal Code to grant a second order.

The defence says that the Crown getsonly one shot at an assessment order, notwithstanding the fact that the Crown has no control over hospital resources and, therefore, noability to ensure that the assessment is completed within the time frame in the order. [12] In their notice of motion challenging the jurisdiction to grant an order, the defence raised a number of Charter issues.

However, at the hearing, the defence did not pursue those issues, arguing that the matter can be resolved by the principles of statutoryinterpretation and that those principles support the defence position that no further order can be granted. discussion Is there jurisdiction to grant a second order? [13] The modern principle of statutory

interpretation is that words of an enactment are to be interpreted in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament (Rizzo & Rizzo Shoes Ltd.(Re), (SCC), [1998] 1 SCR 27). The legislative provisions in issue in this application are found in

Part XX.1 of theCriminal Code, which sets out the process for dealing with an accused where there is an NCR issue or an issue of fitness to stand trialand the process for dealing with offenders who are found NCR. The twin objectives of

Part XX.1 are “protection of the public and fairtreatment, in the sense of procedural fairness, of the accused” (R. v. Conception, 2014 SCC 60, [2014] 3 SCR 82, at para. 15). Thenarrower objective of s. 672.11 et seq. is to ensure that the court has the necessary evidence to assess criminal responsibility. The timelimits in the provisions are obviously intended to ensure that assessments are done expeditiously.

However, in considering thatobjective, it must be kept in mind that the courts have no ability to control the hospitals or medical personnel who conduct assessments.Prioritizing cases and the allotment of hospital beds falls within the purview of the hospital staff. [14] In R. v. Conception, the court was considering s. 672.58 of the Criminal Code which allows the court to make a treatmentorder for an accused who is found unfit to stand trial if the treating hospital consents to the order.

The contentious issue was whether thehospital was required to consent only to the treatment or also to the time frame for the treatment. The court found that consent wasrequired to both. In the majority opinion, Rothstein and Cromwell JJ. explained: [38] Interpreting consent to exclude the element of timing, as the appellant would have us do, leaves allocation of scarce medical andhospital resources to those needing treatment squarely in the hands of the courts.

This undermines the ability of hospitals to makemedical triage decisions, which could not have been the intent of Parliament in enacting s. 672.62(1) of the Code. In making a"forthwith" treatment order, judges are necessarily deciding who will not get treatment forthwith just as they are deciding who will.Judges would be deciding who should get medical treatment first, but without any overall sense of the needs and priorities of others whotheir "forthwith" orders are displacing.

Judges would, in effect, be making medical triage decisions but without the benefit of beinginformed about the other patients awaiting attention. [15] As I said, the defence argues that the wording of s. 672.14 and s. 672.15 is clear and that the use of the word "shall" makes theprovision mandatory. They say there is no authority to extend an assessment order beyond the 60 days set out in the section. The defencerelies on s. 11 of the

Interpretation Act, R.S., c. I-23, which states that, "The expression “shall” is to be construed as imperative and theexpression “may” as permissive". There are two responses to this argument. First, while the use of the word "shall" makes a legislative provision imperative, it does not necessarily make it mandatory. In her text, Construction of Statutes, 7th ed. (Toronto: LexisNexis,2022), Ruth Sullivan explains the difference (at p. 89): [11] ... The issue that arises in connection with "shall" and "must" is not whether they are imperative, but the consequences that flowfrom a failure to comply.

In some legislation, the consequences are clearly set out, as in the Criminal Code or legislation that regulatesthrough licensing or prohibition. In other contexts the legislation is silent and it is left to the courts to determine whether non-compliancecan be cured. If breaching an imperative provision entails invalidity or a nullity, the provision is said to be mandatory; if the breach can be fixed ordisregarded, the provision is said to be directory. The term "directory" is unfortunate in so far as it implies that "shall" is sometimes notimperative, that it sometimes has the force of a mere suggestion.

The confusion is compounded when "mandatory" and "imperative" areused interchangeably -- that is, when "mandatory" is used to indicate that a provision is binding or "imperative". Properly understood,

mandatory and imperative are distinct concepts. Unless the drafter had made a mistake, "shall" and "must" are always imperative(binding); neither ever confers discretion. But they may or may not be mandatory; that is, breach of a binding obligation or requirementmay or may not lead to nullity.

The mandatory-directory distinction reflects the fact that there is more than one way to enforce anobligation. [16] Where reading the legislation as mandatory would lead to an injustice and would not promote the objective of the legislation,courts have held the legislation to be directory (Montreal Street Railway Co. and Another v. Normandin, (UK JCPC),[1917] A.C. 170 (P.C.) (BAILII)).

While I am not aware of any cases that have considered the use of the word “shall” in s. 672.14 and s.672.15, a series of cases have considered comparable wording in s. 752.1 of the Criminal Code and have concluded that the wording inthe

section is directory in spite of the use of the word "shall". [17]

Section 752.1 deals with assessments in dangerous/long-term offender proceedings. The

section states that assessments "shall"be completed within 60 days and that the assessment report "shall" be filed within 30 days thereafter. The provision reads: Application for remand for assessment 752.1

(1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offenderwho is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(

a) might be found to be a dangerousoffender under

section 753 or a long-term offender under

section 753.1, the court shall, by order in writing, before sentence is imposed,remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform anassessment or have an assessment performed by experts for use as evidence in an application under

section 753 or 753.1. Report

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the endof the assessment period and make copies of it available to the prosecutor and counsel for the offender. Extension of time

(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days ifthe court is satisfied that there are reasonable grounds to do so. [emphasis added] [18] In R. v. McDonald, 2014 BCSC 2131 , Fitch J. (as he then was) granted an extension of the time within which anassessment report was to be filed beyond the 60 days that s. 752.1 stipulates. The report had not been filed within the timeframe set outin the order because of a clerical error - the court office had entered the wrong filing deadline in the order.

Fitch J. held that,notwithstanding the use of the word "shall" in s. 752.1, the provision was directory, not mandatory. Fitch J. found that not allowing anextension would defeat the objective of the provision, which was to ensure that the sentencing court had the widest range of informationto determine whether the offender posed an unacceptable risk to public safety (para. 18). He concluded that, if he did not havejurisdiction to extend the time for filing, he would have issued a new assessment order.

He commented: [68] In addition, and further to the Crown's oral application for a fresh s. 752.1 assessment remand order made on the hearing of thisapplication, I would, in the unusual circumstances of this case, also make a fresh assessment order under s. 752.1. The fresh order is acontingent one that will come into effect today only if there is a jurisdictional defect in the order granting an extension of time for thefiling of the assessment report. [69] Nothing in the statute explicitly prevents a fresh s. 752.1 order.

In addition, there is authority within the existing case law that afresh s. 752.1 order is permissible. The Saskatchewan Court of Appeal in C.B.H. noted that the

section "does not restrict an order to onlyone order" (at para. 15). Similarly, in Acoby Taylor J. opined that "if I were to refuse to extend the time for the filing of the assessmentreport, it seems to me that it would be open to the Crown to make a new application under s. 752.1(1) of the Criminal Code to obtain anorder for a new assessment and have Dr. Woodside file the existing report, with perhaps a brief addendum, as the report for the secondassessment" (at para. 10).

While the remarks of both courts are obiter, they are persuasive, particularly in the absence of any legislativeprovision confining the court to one assessment order. See also R. v. Acoby, [2009] O.J. No. 197 (S.C.) (QL); R. v. W.T.V., [2003] O.J. No. 2272 (S.C.) (QL); R. v. C.B.H., 2004 SKCA 39. [19] The defence relies on R. v. Gow, 2010 ABQB 564 , where Ouellette J. held that the use of the word "shall" in s. 752.1imposes a mandatory time frame and that non-compliance with that time frame renders the proceedings a nullity. Gow has not beenfollowed in other cases.

In McDonald, Fitch J. reviewed the case law under s. 752.1 and noted: [49] First, as is apparent from the foregoing discussion, the decision in Gow is out of step with all the other jurisprudence in this area. Tothe best of my knowledge, it has not been endorsed in any trial or appellate court decision. In fact, the reasoning in Gow was rejected bycourts in Québec, Nova Scotia and Ontario in Gladu, Crowe and Acoby respectively. [20] The second response to the defence argument regarding the effect of the word "shall" is that that word proscribes the length ofan order that is granted.

As Fitch J. pointed out with respect to s. 752.1, nothing in s. 672.11 et seq. restricts the number of orders thatcan be granted. The Crown here is not asking to extend the order of Champagne J. They are seeking a new order.

[21] The defence relies on the principle that, where there is ambiguity, criminal statutes should be interpreted in favour of anaccused (R. v. McLaughlin, (SCC), [1980] 2 SCR 331). That is a principle that is used in interpreting substantiveprovisions that create offences. The policy underlying the principle is that individuals are entitled to clear notice of what conduct isproscribed; a person should not be found guilty where their conduct is not clearly caught by a provision (R. v. D.L.W., 2016 SCC 22,[2016] 1 SCR 402).

I am not sure that the principle has any application to procedural provisions like the ones in issue here. TheSupreme Court has been clear that, when it comes to process issues, the accused is not entitled to the fairest procedure from theaccused’s perspective (R. v. Mills, (SCC), [1999] 3 SCR 668, at para. 72). [22] In any event, the defence argument seems to be based on the premise that s. 672.11 et seq. is a process available only to theCrown and so it must be strictly construed to ensure that it is not abused by the Crown. But s. 672.11 also allows the defence to obtainan assessment to support an NCR defence.

The strict reading of the

section advocated by the defence here could prevent an accusedfrom presenting that defence. Such a reading does not favour the accused. A strict reading could create a serious injustice and woulddefeat the objective of the

section which is to ensure that the court has the evidence necessary to assess whether the accused should befound criminally responsible and would defeat the broader objective of the mental disorder scheme to ensure that those who are notmorally responsible not be found criminally liable. [23] The defence also relies on s. 12 of the

Interpretation Act which states: 12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensuresthe attainment of its objects. [24] Reliance on this provision seems to conflict with the argument that s. 672.11 et seq. must be narrowly construed. A large andliberal

interpretation would allow flexibility in determining whether an order should be granted. It would not constrain the court'sauthority to obtain the evidence necessary to determine the NCR issue. [25] I am satisfied that I have jurisdiction to grant another assessment order. Should I grant the order? [26] As I said, the only contentious issue at trial will be the accused's mental state. In my view, it is in the interests of justice thatthe court should have the broadest possible evidence to assess the accused’s mental state. The defence has not shown how granting anassessment order will cause prejudice to Mr.

Reimer. The order will not delay the trial. Dr. Casiano testified that a bed is available andthat a report can be completed within 30 days. [27] The defence argues that because the assessment is being requested 1.5 years after the offence, it will be difficult to do a properassessment. Dr. Casiano acknowledged that the farther away the assessment is from the event, the more difficult it is to provide anopinion as to the accused’s mental state at the time of the event. But it is open to the defence to use that as a basis to challenge thereliability of or weight to be given to the psychiatrist's opinion.

Of course, the psychiatrists who conduct the assessments actindependently and their report may well support an NCR defence. [28] The accused argues that the Crown’s application in this case is an abuse of process because they allowed the initial order tolapse. But the Crown does not control the process here. They can merely ask that an order be granted. If the Crown cannot justify thegranting of a new order, the court need not issue one. So, if in this case, the Crown “sat on their rights”, if the delay was their fault, thenthat may count against the granting of a new order. But that is not the case here.

The initial order was not implemented because of alack of resources in the health care system. Mr. Reimer was never moved to PX3. He was never detained as a result of the order. Unfortunately, it was several months before a bed became available. But as soon as the Crown was advised that a bed was available,they took steps to obtain a new order. [29] The defence has declined to disclose their psychiatric report to the Crown. Of course, they are not obliged to do so at thispoint.

However, their reluctance to disclose the report means that the Crown is operating in a vacuum in a situation where the only issuebefore the court will be whether the accused is criminally responsible and the onus in that regard is on the accused (s. 16(3)). Section672.12(1) allows the court to order an assessment at any stage of the proceedings. Refusing an order at this time may lead to anapplication by the Crown mid-trial, after the defence evidence is disclosed. A mid-trial application would cause a delay in the trial.

Moreover, an assessment at this time could lead to resolution of the case if the assessment supports the defence. [30] I am satisfied that a second order should be granted. The term of the order will be 30 days. [31] My ruling should not be taken as an endorsement of the systemic delays in obtaining assessments. The system needs fixing. Dr. Casiano testified that her department has been liaising with Justice officials to develop improvements. [32] The practice in Manitoba has been that a request to PX3 for an assessment is not made until the order is granted. The accusedis then put on a triage, or priority, list.

It would make more sense if the request to PX3 for the assessment was made before the order issought so that the time frame in the order takes the availability of a bed into account (see Ontario v. Phaneuf, 2010 ONCA 901, at para. 29). Dr. Casiano agreed that this is a practice that could be implemented. This, of course, would not resolve the issueof delays, merely the issue of compliance with the court orders. J.