R. v. Butler, 2021 NLSC 146

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Butler , 2021 NLSC 146 Date : November 5, 2021 Docket : 201904G0064 Her Majesty The Queen v. Walter Butler Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.

AND: Restriction on Publication: By court order made under subsection 539(1) of the Criminal Code , the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. Before: Justice George L. Murphy Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: June 17, 2021; June 25, 2021; July 8, 2021; July 22, 2021; and October 7, 2021

Summary: The Court found the Accused was unable on account of a mental disorder to communicate with counsel within the meaning of that phrase in the definition of unfit to stand trial in

section 2 of the Criminal Code . As a result, the Accused was declared unfit to stand trial.

Appearances: Trina D. Simms Appearing on behalf of Her Majesty The Queen Jodi D. MacDonald Appearing on behalf of Walter Butler Authorities Cited: CASES CONSIDERED: R. v. Daley, 2019 NBCA 89; R. v. Morrissey, 2007 ONCA 770; and R. v. Taylor (1992), (ON CA), 11 O.R. (3d) 323, 77 C.C.C. (3d) 551 (Ont. C.A.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] This decision deals with whether the Accused is unfit to stand trial.

By way of background, counsel for the Accused raised theissue of his fitness to stand trial and in connection therewith filed with the Court a report of Dr. Jasbir Gill, MD, FRCPC dated March 29,2021. Dr. Gill is a forensic psychiatrist who conducted an assessment of the Accused regarding his fitness to stand trial. The initialassessment, which gave rise to the March 29, 2021 report of Dr. Gill, was conducted at the request of counsel for the Accused. [2] A hearing was held on June 17, 2021 on the issue of fitness of the Accused to be tried. Both Crown and Defence accepted thatDr.

Gill was an expert in the field of forensic psychiatry and qualified to give expert opinion evidence on the question of the fitness of aperson to stand trial. The Court accepted her as qualified to give such expert opinion evidence. In advance of this hearing and with theconsent of the Defence, the Crown had provided to Dr. Gill certain evidence regarding the charges against the Accused. As a result ofher review of the evidence, Dr.

Gill indicated to the Court at the hearing that she would need to conduct a further assessment of theAccused before she was able to give a definitive opinion on the fitness of the Accused to stand trial. Subsequently, on June 25, 2021, theCourt made an order under

section 672.11 of the Criminal Code, R.S.C. 1985, c. C-46 that an assessment of the mental condition of theAccused be conducted regarding whether he was unfit to stand trial. The assessment of the mental condition of the Accused pursuant tothe court order was conducted at the Forensic Unit of the Waterford Hospital by Dr. Gill and other medical professionals. [3] A second report by Dr. Gill dated July 12, 2021 was subsequently filed with the Court.

It was essentially an update of thereport of March 29, 2021 based on the further assessment of the mental condition of the Accused conducted pursuant to the order of theCourt made on June 25, 2021. This report was presented to the Court by consent of counsel for the Accused and the Crown and neitherparty chose to question Dr. Gill regarding the report. Instead, counsel for the parties simply made submissions to the Court on whetherthe Accused was unfit to stand trial based on the July 12, 2021 report of Dr.

Gill and the applicable law. the law [4] The starting point when examining the issue of fitness to stand trial is found in

section 672.22 of the Criminal Code whichprovides: Presumption of fitness 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. [5] In terms of trying the issue of fitness of the Accused,

section 672.23 of the Criminal Code provides: Court may direct issue to be tried

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 issue of fitness of the accused be tried. Burden of proof

(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. [ 6 ] In this case, it was the Accused via his counsel who applied to the Court asking that the question of fitness be tried. Therefore, the burden of proof lies with the Accused to demonstrate that he is unfit to stand trial. The burden of proof is to the civil standard, namely the balance of probabilities. [ 7 ] The term unfit to stand trial is defined in

section 2 of the Criminal Code as follows: 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; [ 8 ] The term mental disorder which forms part of the definition of unfit to stand trial is also defined in

section 2 of the Criminal Code : 2 In this Act mental disorder means a disease of the mind; [ 9 ] It is based on these Criminal Code provisions and the report of Dr. Gill dated July 12, 2021 that I must decide whether the Accused has established that he is unfit to stand trial. analysis [ 10 ] As can be seen from the definition of unfit to stand trial, there are three situations in which, on account of mental disorder, a person would be unfit to stand trial. In this case there is no argument being advanced in respect of the first or second of these situations.

In other words, counsel for the Accused is not arguing that her client is unable to conduct a defence because he is unable to understand the nature or object of the proceedings or that he is unable to understand the possible consequences of the proceedings. This is consistent with the report of Dr. Gill which indicates that the Accused does not satisfy the test of unfit to stand trial for either of these reasons.

Instead, the sole argument of counsel for the Accused is that her client is unfit based on the third ground, namely that he is unable on account of a mental disorder to conduct a defence because he is unable to communicate with counsel. [ 11 ] There are two divergent lines of authorities in this country on exactly what is encompassed in the phrase “communicate with counsel” in the definition of unfit to stand trial. Richard, C.J.N.B. summarized these divergent lines of authorities at paragraph 2 of the decision of the New Brunswick Court of Appeal in R. v.

Daley , 2019 NBCA 89 : 2 There is a line of cases, based on a Saskatchewan Court of Appeal decision, holding that the ability to communicate with 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": R. v. Jobb , 2008 SKCA 156 , [2008] S.J. No. 764 (QL) , at para. 39 . A more prevalent line of cases, based on an Ontario Court of Appeal decision, holds otherwise.

According to these decisions, it is not the accused's ability to provide a reliable account of the events immediately preceding and surrounding the alleged crime that is the critical issue, but rather whether the accused is able, in real time, to "speak with counsel rationally, to understand questions and answer them in an intelligible fashion, and to make critical decisions on counsel's advice, concerning the offence with which he is charged": R. v. Morrissey , 2007 ONCA 770 , [2007] O.J. No. 4340 (QL) , at para. 56 , quoting the trial judge's charge to the jury, leave to appeal denied, [2008] S.C.C.A.

No. 102 (QL). [ 12 ] The New Brunswick Court of Appeal in Daley preferred and followed the line of cases based on the Ontario Court of Appeal

decision in R. v. Morrissey, 2007 ONCA 770. I too prefer the approach set forth in Morrissey which essentially followed an earlierOntario Court of Appeal decision in R. v. Taylor (1992), (ON CA), 11 O.R. (3d) 323, 77 C.C.C. (3d) 551 (Ont. C.A.). [13] Blair, J.A. for the court in Morrissey reviewed Taylor and explained the relationship between the “limited cognitive capacitytest” discussed therein and the phrase “communicate with counsel” in

section 2 of the Criminal Code. At paragraph 27, he said: 27 In R. v. Taylor (1992), (ON CA), 11 O.R. (3d) 323, [1992] O.J. No. 2394, 77 C.C.C. (3d) 551 (C.A.), this courtrecognized that the new s. 2 definition "statutorily entrenches the extensive case law in this area" and concluded that to be found fit fortrial an accused must satisfy a "limited cognitive capacity test". This threshold is not high.

Indeed, Taylor has been criticized in someparts of the academic and medical communities for setting the bar too low and allowing some individuals to be found fit when theirability to make necessary decisions about their trial is severely affected by mental illness: see the commentaries collected in Barrett andShandler, Mental Disorder in Canadian Criminal Law (Toronto: Thomson Carswell, 2006), pp. 3-6 to 3-7, fn 15. 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, (SCC), [1994] 2 S.C.R. 914, [1994] S.C.J.

No. 69, 92 C.C.C. (3d) 11, at pp. 933-34 S.C.R., pp. 25-26 C.C.C. Itrequires only a relatively rudimentary understanding of the judicial process -- sufficient, essentially, to enable the accused to conduct adefence and to instruct counsel in that [page493] regard. It is in that sense that the accused must be able "to communicate with counsel"and relate the facts concerning the offence. [14] Blair, J.A. noted further at paragraph 36 that “. . .

Meaningful presence and meaningful participation at trial, therefore, are thetouchstones of the inquiry into fitness”. [15] In Morrissey, the issue was the relationship between testimonial competence and the ability to communicate with counsel. Indiscussing the distinction at paragraph 39, Blair, J.A. explained what was encompassed in the phrase “communicate with counsel”: 39 First, as indicated above, the ability to communicate the evidence (for purposes of testimonial competence) and the ability tocommunicate 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 withcounsel for the purposes of conducting a defence, considering counsel's advice, and giving instructions with respect to the defence. AsCarrothers J.A. put it in R. v.

Roberts, supra, at p. 545 C.C.C. -- in language that is still pertinent, albeit pre-Charter, and that was pickedup 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 hispart, he must be physically, intellectually, linguistically and communicatively present and able to partake to the best of his natural abilityin his full answer and defence to the charge against him. (Citations omitted; emphasis added) [16] In light of the foregoing I will now look at whether the July 12, 2021 report of Dr.

Gill demonstrates that the Accused suffersfrom a mental disorder and whether on account thereof he is unable to conduct a defence because of an inability to communicate withcounsel. [17] Counsel for the Accused submitted, based on the law and the report of Dr.

Gill, that the Accused cannot meaningfullyparticipate in his trial and conduct a defence because he is unable to effectively communicate with counsel in the manner in which aperson would need to in order for that counsel to represent him/her at trial. [18] Counsel for the Crown did not dispute that the appropriate test for determining fitness to stand trial was as set forth in Taylorand Morrissey. Neither did the Crown dispute that the Accused suffered from a disease of the mind.

The Crown did however dispute thatthe disease of the mind or mental disorder from which the Accused suffered was such that he was unable to conduct a defence because ofhis inability to communicate with counsel. The Crown suggested that some of the issues of the Accused in terms of his inability tocommunicate with counsel were related to his low level of education as opposed to a mental disorder. The Crown further suggested that itwas for the Court to separate communication difficulties attributable to low education from communication difficulties attributable to amental disorder.

Overall, the position of the Crown was that the July 12, 2021 report of Dr. Gill did not establish that the Accused wasunfit to stand trial as a result of a mental disorder because other factors, such as a low education level, were contributing to the cognitiveand communication difficulties of the Accused. [19] In terms of evidence I have only the July 12, 2021 report of Dr. Gill on which to rely.

The question I must ask myself iswhether based on this evidence it has been established by the Accused on a balance of probabilities that he is unable to conduct a defencebecause he is unable to communicate with counsel to such an extent that he could meaningfully participate in his trial. [20] As I noted earlier, it is not disputed by the Crown that the Accused suffers from a mental disorder. In this regard, Dr.

Gill in herreport of July 12, 2021 opined that he suffered from a “. . . moderately severe Major Neurocognitive Disorder (likely Alzheimer’s type).”As for fitness to stand trial, at page 11 of 14 she said: In my opinion, from a purely psychiatric perspective, Mr. Butler is unfit to stand trial due to his impairments on the third branch of thefitness test. The audio of his 2018 police statement and the results of our various evaluations show that Mr.

Butler’s impairment on thethird branch is more likely than not a function of recent cognitive decline due to a neurocognitive disorder. . . . [21] As for the argument of the Crown that the Court should separate communication difficulties attributable to low education fromcommunication difficulties attributable to a mental disorder, the Crown did not offer any suggestion as to how that should be done. It ismy view that it would be an impossible task to perform without evidence to assist.

It is an area which could have been explored with Dr.Gill on cross-examination; however, as noted earlier, the Crown opted not to cross-examine her on the July 12, 2021 report. In addition,the Crown did not seek to have an assessment of the Accused by another forensic psychiatrist which it also could have done.

[ 22 ] Therefore, I have before me as evidence only the unchallenged report of July 12, 2021 from Dr. Gill who both the Crown and Defence agree is an expert in the field of forensic psychiatry and qualified to conduct assessments and give opinions on a person’s fitness to stand trial.

I recognize this does not abrogate the responsibility of the Court to ultimately make the determination on whether the Accused has established that he is unfit to stand trial; however, in the absence of other evidence which could have been put before the Court by way of evidence from another forensic psychiatrist or by way of cross-examination of Dr. Gill on her report, I am left to decide the matter on the basis of Dr. Gill’s report and the application of the applicable law thereto. [ 23 ] I would note that Dr.

Gill in her report discusses the low education level of the Accused and its impact on the issue of his fitness to stand trial. At page 11 of her report after giving her opinion that the Accused was unfit to stand trial, she added: . . . Mr. Butler’s formal IQ score remains unknown. Still, he impresses as functioning at least in the below-average IQ range.

His lack of education and efforts to remediate and maximize his intellectual functioning likely amplify his more recently developed cognitive deficits. [ 24 ] Later at page 13 after indicating that the Accused suffers from a moderately severe Major Neurocognitive Disorder (likely Alzheimer’s type), she added: . . . His fear, anxiety, poor insight into his deficits, and lack of education compound his cognitive difficulties. [ 25 ] These comments by Dr.

Gill simply indicate that the low level of education of the Accused, as well as other factors, are negatively impacting the cognitive deficits of the Accused; however, there is nothing in Dr. Gill’s report to indicate that if the low level of education or “other factors” were not present, her ultimate opinion on the fitness of the Accused to stand trial would be any different. Neither is there anything in her report to indicate that her ultimate opinion is based on both the mental disorder, which she found to be present, and other factors including the low level of education. [ 26 ] As I read the entirety of Dr.

Gill’s report, she is of the opinion that the Accused is unfit to stand trial based on the third branch of the test for fitness and that this is more likely than not as a result of cognitive decline due to a neurocognitive disorder. While there are other things, such as a low education level, which are compounding the cognitive difficulties of the Accused, there is nothing in the reports of Dr. Gill to indicate that this alters her ultimate conclusion on the fitness of the Accused to stand trial.

Conclusion [ 27 ] It has been established by the Accused that he is unable on account of mental disorder to conduct a defence because of his inability to communicate with counsel within the meaning of that phrase in the definition of unfit to stand trial in

section 2 of the Criminal Code . Accordingly, the Accused is declared unfit to stand trial. _____________________________ George L. Murphy Justice