THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 156 Date: 20081203 Between: Docket: 1445 Her Majesty the Queen and Christopher Vern Jobb Coram: Richards, Smith and Hunter JJ.A. Counsel: W. Dean Sinclair for the Crown Brenda R. Freriks for the Respondent Appeal: From: 2007 SKPC 129 (CanLII) Heard: October 20, 2008 Disposition: Appeal allowed Written Reasons: December 3, 2008 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Richards The Honourable Madam Justice Hunter Smith J.A. [1] This is an appeal by the Crown from an order of a Provincial Court Judge declaring that the respondent is unfit to stand trial. The Crown submits that the trial judge misapprehended the evidence, misstated the evidence, applied the wrong legal test for fitness, applied the wrong burden of proof and made finding that was unreasonable and not supported by the evidence. [2] The respondent was charged with total of 29 offences committed between March 25, 2006 and August 26, 2007. Most of these were summary conviction offences, in general arising out of multiple failures to comply with various bail conditions including: breach of curfew (five charges), failing to attend school (two charges), failing to reside in designated residence, failing to not possess, keep or consume alcohol (four charges) and failing to keep the peace and be of good behaviour (four charges). He was also charged by information with various offences in relation to drinking, driving, leaving the scene of an accident and possession of stolen vehicle and two charges of obstruction of peace officer by providing false name. The Crown is appealing the finding of unfitness to stand trial on the summary conviction offences to the Court of Queen’s Bench. That appeal has not yet been heard. [3] In addition, the respondent was charged with two indictable offences: two thefts of property of value not exceeding $5,000 arising out of two separate incidents in March and September, 2006. The appeal to this Court relates to the finding that the respondent is unfit to stand trial in relation to these offences. [4] The respondent is 22 years old. He suffers from fetal alcohol spectrum disorder, attention deficit disorder and substance abuse/dependence disorder. He has been diagnosed as mildly mentally retarded. One assessment puts him at grade seven level for reading single words and spelling (a level above the level predicted by his overall IQ) and at grade three to four level in arithmetic. He has deficits in both visual and verbal memory that are greater than one would predict on the basis of his IQ alone. He is easily led. He is considered incapable of handling the responsibilities that would enable him to live independently and it is considered he will always need protected living environment and sheltered employment. [5] Mr. Jobb spent most of his childhood in foster care, as his mother suffered from substance abuse. At the age of 16 he began residing in the foster home of Fran Werezak of Saskatoon, who has provided significant support for him. Unfortunately, as he has grown up, Mr. Jobb has consistently run away from the protected environments sought for him and has begun to abuse alcohol and drugs. [6] He was charged with some property offences in 2002 and, at that time, was found unfit to stand trial. As result, he was, at the time of the current charges, still under the supervision of the Provincial Review Board. [7] The parties filed an agreed statement of facts which summarized the facts of all the offences. The account that follows is intended as summary of these allegations, as set out in the various informations. Mr. Jobb has not, of course, been convicted in relation to any of these allegations, and this summary is not intended to displace the presumption of innocence to which he remains entitled. It does, however, represent the information before the Court in relation to the relevant allegations. [8] The first theft is alleged to have taken place when Mr. Jobb was helping woman move her personal belongings. He picked up the woman’s purse, went into the bathroom and removed $21 in cash and cell phone, and then left the house with the stolen items. He was arrested approximately three weeks later. He falsely identified himself to Saskatoon Police officer before he was arrested. At this time, the respondent was remanded to the Saskatchewan Hospital for an assessment. [9] At the request of the Review Board, Dr. O. Obikoya, psychiatrist prepared report, dated, June 26, 2006 for the Court. Dr. Obikoya concluded that Mr. Jobb was fit to stand trial. He diagnosed him as suffering from dependence disorder in relation to marihuana use and mild mental retardation (marked “query” in this report), and noted that he had no delusions and no perceptual disturbances, was cognitively fully alert and conscious and his attention, concentration, short term and long term memory were all normal. He described Mr. Jobb as answering questions relevantly and spontaneously, albeit hesitantly and said that his speech was slow and low tone, but normal in volume. He concluded that Mr. Jobb was fit to stand trial because Mr. Jobb was able to tell him the nature and circumstances of the charges against him (then, theft and obstruction), and expressed regret. He was able to describe the functions of the court and its key players and, in Dr. Obikoya’s opinion, could instruct his lawyer and defend himself. [10] Mr. Jobb was then released on bail. He repeatedly violated the bail order. He was arrested for shoplifting merchandise from Safeway store and failed to appear in court in September, 2006. He was then arrested on September 26, 2006, in relation to complaint about person who appeared to be stealing items from cars. He admitted stealing CD case and key chain from car. He was under the influence of alcohol. He was charged with three counts of breaching bail conditions and one count of theft. [11] He was again released from custody. In November, 2006, he violated bail by running away from school and failing to abide by curfew. He was arrested on December 15, at which time he was carrying an open bottle of beer. He gave false name and date of birth to the police officer. [12] After release, in January, 2007, he was found by the police in an intoxicated condition. He was charged with violating bail condition and released again. In February he was arrested, and then released, for violating his curfew. In April, he violated condition requiring him to live in designated residence, but was again released. [13] At this time, the Court ordered new psychiatric assessment, by Dr. Robin Menzies, psychiatrist. Dr. Menzies’ report was dated July 25, 2007. He was of the opinion that Mr. Jobb was not fit to stand trial. As the opinion of Dr. Menzies is central to the judgment from which the appeal is taken, will return to it in more detail below. [14] In July and early August Mr. Jobb again violated curfew and was found by the police in highly intoxicated condition, resulting in two new charges of violation of bail conditions. He was released from custody. [15] On August 26, 2007, he drove stolen automobile while impaired. He hit two other vehicles and then abandoned the stolen vehicle and fled the scene on foot. When he was arrested, his blood alcohol level was measured to be 110 and 100 mgs. per cent. He remained in custody until the fitness hearing on November 1, 2007. [16] At the fitness hearing, the reports of both Dr. Obikoya and Dr. Menzies were filed as exhibits. Counsel for Mr. Jobb called Dr. Menzies as witness. The Crown did not call Dr. Obikoya to testify. The hearing judge relied primarily on the report and testimony of Dr. Menzies, noting that the report of Dr. Obikoya had been prepared year earlier and that there were aspects of it that might have been clarified had he testified. In particular, she noted that, while Dr. Menzies advised that Mr. Jobb had been diagnosed with fetal alcohol spectrum disorder and attention deficit disorder, Dr. Obikoya had not mentioned either disorder in his report. Additionally, Dr. Obikoya’s report of Mr. Jobb’s understanding of the charges against him was prepared when there were only two charges of relatively recent vintage. Dr. Obikoya’s description of Mr. Jobb’s understanding of the trial process and relevant participants revealed confusion of names, on the part of Mr. Jobb, between his previous lawyer and previous judge, raising the question of whether he confused only the names of these individuals or their roles in the trial process. Finally, Dr. Obikoya referred to some other psychiatric evaluations without providing any elaboration. [17] In the result, the hearing judge accepted the opinion of Dr. Menzies. It is, in large part, her interpretation and reliance on this report that is at issue before us. The applicable law [18] These provisions of the Criminal Code are governing: s. 2… “unfit to stand trial” means unable on account of mental disorder to conduct defence at any stage of the proceedings before 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 state of the proceedings before verdict is rendered, to believe that the accused is unfit to stand trial, the court may direct, of its own motion or on the application of the accused or the prosecutor, that the issue of fitness of the accused be tried. (2) An accused or prosecutor who makes an application under subsection (1) has the burden of proof that the accused is unfit to stand trial. [19] These provisions make it clear that fitness to stand trial is presumed and that in this case the burden was on the accused to prove, on the balance of probabilities, that he was unfit to stand trial. [20] The policy reasons behind this presumption are described by the Alberta Court of Appeal in R. v. C. (L.S.), 2003 ABCA 105 (CanLII); 13 C.R. (6th) 390 as follows: 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, person accused of crime has right to his “day in court” and to make full answer and defence to the charge. Second, 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. (At para. 12.) [21] In keeping with this policy, the courts have applied test of “limited cognitive capacity” for determining fitness. This test was first set out by the Ontario Court of Appeal in R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551 and was adopted by the Supreme Court of Canada in R. v. Whittle, 1994 CanLII 55 (SCC), [1994] S.C.R. 914. 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 very low threshold for fitness to stand trial in keeping with the policy objectives of the Criminal Code, and, in particular, with the right of the accused to make full answer and defence to the allegations with which he is charged. [22] In R. v. Taylor, while psychiatric examination found that the appellant, former lawyer, was “technically fit” to stand trial in the sense that he was cognizantly aware of the charges against him, the officers of the court, the possible pleas available to him and that he was articulate and aware of the possible consequences of his trial, the nature of oath and the meaning of perjury, he was diagnosed as suffering from paranoid schizophrenia and thus unable to distinguish reality from fantasy. The psychiatrist concluded that he would therefore be unable to instruct counsel in manner that would be in his best interests and that he would, in fact, resist the assistance of counsel altogether. [23] It was conceded by the Crown that the appellant met the first two criteria found in subsections (a) and (b) of the definition in that he fully understood the nature of the proceedings and its possible consequences. Thus, the only question was the test to be applied in determining the accused’s ability to communicate with counsel. It was argued that the appellant could not instruct counsel because of his inability to reason on higher cognitive levels, because of his lack of abstraction, and because of being “locked in his delusional system.” [24] Relying on R. v. Gorecki (No. 1) (1976), 1976 CanLII 833 (ON CA), 32 C.C.C. (2d) 129 (Ont. C.A.) and R. v. Trecroce (1980), 1980 CanLII 2854 (ON CA), 55 C.C.C. (2d) 202 (Ont. C.A.), the Court held that the trial judge had erred in adopting test that required the accused to be capable of making rational decisions beneficial to him in his relationship with counsel. These passages from the judgment of the Court by Lacourciere J.A. are instructive: 48 In R. v. Trecroce, supra, during an appeal against conviction for second degree murder, the accused discharged his counsel and the question arose whether the appellant was competent to do so and to appoint other counsel. Martin J.A., delivering the judgment of the court, stated at p. 216: On the resumption of the hearing both Dr. Fleming and Dr. Coulthard gave evidence on the issue of the appellant's fitness to instruct counsel. They were in general agreement that the appellant suffers from mental disorder. They were of the opinion, however, that he understood the nature of the proceedings and the functions of the persons involved in them. He knew what the issues were and the possible outcome of the proceedings. The appellant, in their opinion, was able to follow the evidence generally, although he might misinterpret it. They were of the opinion that the appellant was capable of instructing counsel although he might disagree with counsel as to how the case should be conducted, and might not act with good judgment. The appellant did not want to be seen as mentally ill, and was opposed to the issue of insanity being considered by the Court. We concluded on the basis of the evidence of Dr. Fleming and Dr. Coulthard that the appellant was competent to instruct counsel: see Reference Re R. v. Gorecki (No. 1) (1976), 1976 CanLII 833 (ON CA), 32 C.C.C. (2d) 129, 14 O.R. (2d) 212. 49 The respondent concedes that the "limited cognitive capacity" test is correct in Canadian criminal law. However, the respondent submits that the law should make allowances for cases such as the present where the accused's mental disorder is so potent and extensive that it cannot be said that the person is capable of following the evidence, communicating rationally with counsel, or giving evidence which is responsive to the case for the Crown. Therefore, the respondent submits that the trial judge was correct in distinguishing R. v. Trecroce, supra, on the basis that the accused in the case at bar suffered from delusions so pervasive and irrational that he was "unable to perceive his own best interests and how those interests should be addressed in the course of trial". 50 To determine whether the test should be modified as suggested by the respondent, one must remain cognizant of the rationale for the fitness rules in the first place. In order to ensure that the process of determining guilt is as accurate as possible, that the accused can participate 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 fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in meaningful way. At the same time, one must consider that principles of fundamental justice require that trial come to final determination without undue delay. The adoption of too high threshold for fitness will result in an increased number of cases in which the accused will be found unfit to stand trial even though the accused is capable of understanding the process and anxious for it to come to completion. 51 In addition, adopting high threshold of fitness, including "best interests" component, derogates from the fundamental principle that an accused is entitled to choose his own defence and to present it as he chooses. In R. v. Swain, supra at p. 970 S.C.R., p. 504 C.C.C., Lamer C.J.C., for the majority, stressed the importance of the accused's s. right to liberty which allows him to control his own defence. An accused who has not been found unfit to stand trial must be permitted to conduct his own defence, even if this means that the accused may act to his own detriment in doing so. The autonomy of the accused in the adversarial system requires that the accused should be able to make such fundamental decisions and assume the risks involved. 52 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 trial within reasonable time. 53 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. 54 Having rejected higher threshold for determining the accused's ability to instruct counsel, the real question to be determined in this case is whether the learned trial judge erred in holding that, although the appellant can communicate with counsel to the extent that he can speak to counsel, and do so in an articulate manner, however ... his delusions are so pervasive and irrational that he is ... not merely capable of disagreeing with counsel with whom he might instruct as to how the case should be conducted, but unable to perceive his own best interests and how those interests should be addressed in the conduct of trial. 55 In my opinion, the learned trial judge erred in adopting the "analytic capacity" test which establishes too high threshold for finding the accused fit to stand trial by requiring that the accused be capable of making rational decisions beneficial to him. (pp. 566-67) [25] R. v. Whittle concerned the admissibility of statements to the police by an accused person who was alleged to suffer from mental incapacity, and whether he had sufficient mental capacity to effectively waive his right to counsel. Sopinka J. derived the applicable test from the test for fitness to stand trial, adopting the interpretation of that test in Taylor. Particularly relevant to the issues before us are these passages, in which Sopinka J. pointed out that the threshold for fitness to stand trial is lower than that for criminal responsibility: The significance of this issue is placed in context by considering the regime in place for the trial of persons alleged to suffer from mental disability. By virtue of s. 16 of the Criminal Code, persons suffering disease of the mind in the circumstances defined in that section are exempted from criminal liability and punishment. The section embodies the policy of the law that such persons are sick as opposed to blameworthy and should be treated rather than punished. See R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] S.C.R. 1303, at p. 1336. These persons are not, however, exempt from being tried. Part XX.1 of the Criminal Code contains detailed provisions providing for mental assessments by physicians and for determination of the fitness of persons suffering from mental disorders to stand trial. Section 672.23 provides that where, at any stage of the proceedings, the court believes on reasonable grounds that the accused is unfit to stand trial, it may direct the trial of that issue. The application can be made on the court's own motion or by the accused or the prosecutor. Many accused persons who are found not guilty by reason of mental disorder are fit to stand trial. The fact that an accused is not criminally responsible within the meaning of s. 16 does not mean that he or she is unfit to stand trial. If the contrary were true there would be little purpose in providing for the plea authorized by s. 16. Most persons who suffered from the mental disorder defined in the section would be exempted from trial and would not get to plead until they had recovered subsequent to the date of the offence. [Italics added.] 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 of mental disorder and focuses on the ability to instruct counsel and conduct defence. That test which was developed under the common law is now codified in s. of the Code …It requires limited cognitive capacity to understand the process and to communicate with counsel. In R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 77 C.C.C. (3d) 551, the Ontario Court of Appeal, after reviewing the authorities, held that the trial judge erred in concluding that the accused must be capable of making rational decisions beneficial to him. At page 567, Lacourcière J.A., on behalf of the court, stated: 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 trial within reasonable time. Accordingly, provided the accused possesses this limited capacity, it is not prerequisite that he or she be capable of exercising analytical reasoning in making choice to accept the advice of counsel or in coming to decision that best serves her interests. (at pp. 932-34) [26] The limited cognitive capacity test for fitness to stand trial was also confirmed in this Court in R. v. Peepeetch, 2003 SKCA 76 (CanLII); (2004), 177 C.C.C. (3d) 37. The evidence of Dr. Menzies [27] In his written report Dr. Menzies reported that Mr. Jobb was able to tell him that the charges he faced were “breaches and thefts.” He said that the theft charges involved taking satellite radio from resident at care home, cell phone, CD case and something from Safeway. He said he was drunk on each of these occasions. When asked about the obstruction charge he replied that he was probably drunk at the time. He appreciated that he faced charges and could face penalty if convicted. He explained that guilty plea meant that “you did it, you know you did it” and not guilty plea meant “you didn’t do it.” He said that the judge “decides what to do to you” and that his lawyer “defends” him. When asked to elaborate he replied “She plans out my work.” He said of the prosecutor, “They are the worst people to have…they try to keep you in there [jail].” He said he planned to plead guilty to the theft charges and would discuss the others with his lawyer, whom he properly named. [28] The written report concluded: Jobb’s intellectual and cognitive deficiencies, inter alia, impact on his fitness to stand trial. While he seems to appreciate the meaning of plea and possesses rudimentary knowledge of the role of the officers of the court, probably thanks to repeated coaching by Fran Werzak, his ability to follow the proceedings is less clear. The fact that he maintains he can follow and understand the proceedings may speak more for his wish to be regarded as normal than it does for his ability to concentrate and comprehend the process. cannot be satisfied that he can follow the proceedings and accordingly consider that he is unfit to stand trial. [29] Dr. Menzies’ testimony at trial elaborated on this opinion. It was clear that, in his opinion, the principal problem posed by Mr. Jobb’s cognitive limitations, insofar as his fitness to stand trial was concerned, was related to his attention deficit disorder—his inability to concentrate and his extreme distractibility. It was on this basis that Dr. Menzies concluded that he was uncertain that Mr. Jobb would be able to “follow the proceedings” sufficiently to instruct counsel. [30] Dr. Menzies frankly and fairly conceded that he was not sure of the legal test for ability to instruct counsel. (Transcript, p. 18, ll. 21-25) These passages from his testimony fairly represent his opinion on this important point. The one of the areas that that find is more difficult to reach the determination on is there is the individual’s ability to instruct counsel, because I’m not sure what the official definition is, but suspect it’s it’s not it dynamic process that the individual’s in court listening to what’s being said. During break or during the proceedings the individual may want to talk to counsel and say add some comments or whatever. And think in that area is where he likely is compromised because of his mental disorders. That it’s not clear how much of what’s going on he’s taking in, and therefore how much part of the process he is. Most of us have the choice whether we want to tune in or tune out, but think someone like Christopher, mean, he still has that choice, but even if he chooses to tune in his capabilities are limited and what he gets out of tuning in is probably well, is obviously lot less than the next person. So that’s where see the the big problem lying. [Transcript p. 16, l. 21 p. 17, l. 15] Dr. Menzies, is it your are you of the opinion that Christopher would be able to communicate with his lawyer, his counsel and adequately instruct them? think it’s question of degree. mean, there’s there’s no doubt he can communicate, he can think his his recollection of things isn’t terribly strong, so depending when when it is or what event he’s talking about, when it happened, whether it was last week or year ago, so think basically he can communicate, but it’s question of what quality of instruction. Because if he’s not fully there for reasons that aren’t his fault, during the process think that’s the the area where he he falls down and where it’s he’s not, in my opinion, fit to stand trial. [Transcript p. 19, l. 23 p. 20, l. 11] Thank you, Dr. Menzies. Another area I’d like you to comment upon is your opinion as to Christopher’s ability to give assistance to his counsel, in in legal proceedings. For example, if if trial were to happen and the normal trial process then ensues, what would Christopher’s ability be to assist counsel in that process? Well, don’t think he would have absolutely no ability. think he would certainly have some ability, but it would be not the degree of ability that somebody who had an IQ of hundred, say, was able to provide. think he has for instance if talked about the charges he faced, he was very vague and, you know, talked about the numbers, he said well, too many. And put it all down to being intoxicated on either drugs or alcohol. Sort of vague stuff, but mean, think as say, with you put the police report in front of him and say, well, does this sound like what happened and and this sort of thing? It would just be longer process and don’t think you can take for granted that just because he said, yeah, know that, that that necessarily is the case. [p. 23, l. 24 p. 24, l. 17] Thank you. Getting back to some direct questions in terms of Christopher’s ability to deal with the court process is that would you be able to offer an opinion as to Christopher’s ability to be examined by prosecutor or myself or by myself, cross-examination and those sorts of things? Well, he could certainly be examined. And as say, think if his deficiencies, if you like, are taken into consideration in terms of the sort of questions or the time he’s given to to respond or whether he understands what he you know, what the question is, then certainly he can he can do those things to to some degree. guess the issue is the degree of these things, you know. He’s obviously not he can communicate, he can share joke, he can remember things, he can come up with original thought, but he’s just he’s got problems which make all those areas more difficult for him to to deal with. [Transcript p. 28, l. 11 p. 29, l. 3] Right. Well, in terms of conceptualizing these these concepts, Dr. Menzies, would it be fair to say that Christopher would be viewing the truth and lies, good and bad, black and white, much more specifically than somebody without his particular deficits? Well, think someone like Christopher, there may be sort of less less grey area there. But he he knows the difference between telling lie and telling the truth and what’s right and what’s wrong. But it may be more of black and white thing for him than it would be the various nuances of that may may escape him. [Transcript p. 32, l. 20 p. 33, l. 5] Okay. So specifically as to your concern as to instructing counsel, do you think there’s some component analysis that Mr. Jobb is not able to do then in that situation? think his his analytical abilities are compromised. You see, in way it may be presumptuous of me to bring into question his ability to instruct counsel because counsel could say, well, I’ve talked with him and can. So, you know and would say, that that’s fine, you know, it’s just that I’m putting things into context here and saying that, you know, if if counsel agrees, and say, you know, can’t it’s not working, we’re not understanding each other properly, then I’ve given the possible explanation for that. But wouldn’t be saying just because think it might be problem if counsel says, well, actually we we got on pretty well, we you know, feel quite comfortable. think, well, that’s fine, because this isn’t a, you know, black and white thing. It’s obviously grey area. [Transcript p. 56, l. 12 p. 57, l. 6] abilities. But he can as give you the examples as to the dates of some of those offences, he can certainly recount some element of the facts? Certainly. And would you say that had he been pressed for details he might have in fact, been able to provide greater details? Yeah. That wasn’t the focus of your interview of him? No, it was more the kind of process, you know, because think lot of individuals don’t know the details of what they’re charged with, especially if it was year ago and two years ago. And think you made comment that his and it’s in the report, that his response to your question about the charges was too much or too many? Yeah. It seemed bit of an odd response? Yeah. Well, bit unusual. If told you there was 27 offences before the Court, would that would that response seem actually appropriate? Well, it was accurate, guess. Yeah. So, again, that might be—even lay person might refer to that type of query Yeah. [Transcript p. 58, l. 15 p. 59, l. 16] [31] When asked about the conclusion expressed in his written report, on cross-examination, Dr. Menzies said this: Well, think think couldn’t think what probably couldn’t satisfy myself that he was, you know, able to handle the proceedings and and the ramifications. It wasn’t to say that, hey, he he definitely can’t or he definitely can, it was, you know, I’m just can’t satisfy myself that he that he can necessarily. And having got to that stage and the it seemed the next logical thing was to say based on that can’t see him as being fit to stand trial. [Transcript p. 66, ll. 9-17] The judgment below [32] It is clear that both Dr. Menzies and the trial judge were satisfied, at the end of the day, that Mr. Jobb met the first two criteria for fitness to stand trial in that he understood the nature of the charges against him and the possible consequences of being found guilty and he understood the difference between guilty and not guilty plea. The focus of the decision was, therefore, on the question of whether and to what extent Mr. Jobb had the capacity to communicate with counsel. [33] In her decision, the trial judge noted, accurately, that Dr. Menzies felt that “while Mr. Jobb’s responses indicated basic knowledge of number of the issues addressed in fitness, he expressed concern about the degree to which Mr. Jobb could take-in the information conveyed in court and provide counsel with instruction in response” (para. 16). She added, When asked if Mr. Jobb could adequately instruct counsel during trial or make informed or prudent choices between guilty plea or trial, Dr. Menzies replied that it’s question of degree and his ability to instruct counsel depends on the event about which Mr. Jobb is speaking and the circumstances in which he is being asked to provide instruction. [34] The trial judge correctly instructed herself on the applicable provisions of the Criminal Code, including those setting out the presumption of fitness and that the burden of proof is on the party who asserts that the accused is unfit to stand trial to establish unfitness on the balance of probabilities. She also referred to number of cases including both Whittle and Taylor, citing part of the passages quoted above, and acknowledged that the test is limited cognitive capacity. [35] She concluded as follows: 40 In conclusion, accept the opinion evidence of Dr. Menzies. Mr. Jobb is unable to comprehend the course of the proceedings so as to assist his counsel in making proper defence. Specifically, he is not able to communicate with his counsel regarding the facts of his charges in such way that counsel may prepare defence, nor can he participate in meaningful way or assist his counsel during the course of trial or other proceedings so that his counsel may pursue defence on his behalf. He does not have the ability to testify as to the facts of the charges against him given the challenges he faces with recollection, comprehension, and attentiveness. The applicant, Mr. Jobb, bears the burden of proving on balance of probabilities that he is unfit to stand trial. find that he has discharged that burden. Accordingly, find Mr. Jobb to be unfit to stand trial on the charges before this Court. [36] The Crown argues that the learned trial judge came to number of findings that were unsupported in the evidence she relied upon, that she did not give effect to the legal presumption of fitness and burden of proof on the respondent, and that she imposed too stringent test in concluding that Mr. Jobb lacked the capacity to instruct counsel. [37] I am in respectful agreement that, on the whole of the judgment, it is apparent that the trial judge applied too stringent a test in concluding that Mr. Jobb was unfit to stand trial, and that, when the proper test is applied, it is apparent that Mr. Jobb had the capacity to instruct counsel within the meaning of the Code. [38] On the question of factual findings, the trial judge indicated that “he [Dr. Menzies] did not think that Mr. Jobb would be able to provide instruction during the trial process due in part to his being very distractable,” (para. 17) and that he was “firmly of the view” that Mr. Jobb could not follow court proceedings sufficiently to instruct counsel (para. 37). With respect, these findings do not accord with the evidence. In fact, Dr. Menzies’ consistent testimony was that he was did not know whether or to what extent Mr. Jobb could “follow” the trial, due to Mr. Jobb’s distractibility and natural tendency he might have to claim to understand even if he did not. Dr. Menzies also made it clear that he believed this to be question of degree, and that he did not know what the legal test for ability to instruct counsel was. Clearly, the focus of his concern, and the focus of concern for the trial judge, was the extent to which Mr. Jobb’s cognitive disability might limit his ability to give on-going instructions to counsel in relation to and in response to the trial proceedings, during what the trial judge described as “the dynamic process of court proceedings” (para. 37). [39] With respect, this concern does not accord with the limited cognitive capacity test. According to that test, the court’s assessment of an accused’s ability to conduct 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 way that counsel can then properly present defence. The trial judge quoted passages from Taylor and Peepeetch that enunciated this test, and from remark by Sopinka J. in Whittle to the effect that it was not necessary that the accused possess “analytic ability” to meet this test. Nonetheless, she did not, in my respectful view, base her decision on an application of this test. Rather, her focus was on the question of whether “the accused can participate in the proceedings or assist counsel in his/her defence” (at para. 39 of the judgment). She quoted and relied upon discussion in R. v. Steele (1991), 1991 CanLII 3882 (QC CA), 63 C.C.C. (3d) 149 (Que. C.A.) which required that the accused be able to “communicate with counsel, converse with counsel rationally or make critical decisions on counsel’s advice.” [40] The approach of the trial judge is reflected in these paragraphs from her judgment: 37 Dr. Menzies discussed Christopher Jobb's ability to adequately communicate with his counsel about the facts of his charges, and specifically questioned his ability to recall events. He was also firmly of the view that Mr. Jobb would not be able to follow court proceedings sufficiently so as to be able to provide instructions to counsel. This difficulty lies not only in limits upon comprehension but also in his distractability. The doctor suggested that the only way to be sure that he was taking in the information conveyed in courtroom, would be to take frequent breaks to check for comprehension. did not understand him to be suggesting that this be done, so much as to express the extent of the challenges that Mr. Jobb faces and perhaps the shortness of his attention span. He repeatedly cautioned against assuming understanding, based on superficial statements or assurances from Mr. Jobb. He could not envisage Mr. Jobb, except perhaps in very controlled setting, being able to converse with counsel about the proceedings and not at all during the dynamic process of court proceedings. 38 Crown counsel was concerned that Dr. Menzies might have been setting the standard for fitness too high, by expecting that, in communicating with counsel, Mr. Jobb required analytical reasoning ability. did not understand his evidence in this way. As reviewed the authorities discussed above, was satisfied that Dr. Menzies' evidence goes to the very heart of what it means to communicate with counsel. He was of the view that Mr. Jobb required coaching and repetition in order to understand the most rudimentary aspects of the justice system. His impairments are such that he has difficulty recalling events, experiences difficulty comprehending what is being said, and is not sufficiently attentive to take in much of what he comprehends. These impairments impact upon his ability to converse with his counsel about the facts, so as to adequately prepare defence, and during the course of proceedings. This does not involve analytic reasoning. [41] Some remark must be made about the description of the evidence of Dr. Menzies in these paragraphs. While Dr. Menzies did, at one point in his testimony, comment that “his recollection of things isn’t terribly strong” (transcript, p. 19, l. 23- p. 20, l. 11), in general, he indicated only that it was difficult to know to what extent Mr. Jobb remembered details (partially because Dr. Menzies had not questioned him about the details of his charges) and that it was, as for anyone, question of degree and how long ago events had occurred. See: transcript p. 14, l. 20-p. 15, l. 10; p. 28, l. 17-p. 29 l. (“he can communicate, he can share joke, he can remember things, he can come up with original thought, but he’s…got problems which make all those areas more difficult for him to…deal with”); p. 44, l. 17-p. 46, l. (his interview, in the summer of 2007, reflected “fair recall” for events of March September of 2006); and p. 58, l. 15-p. 59, l. 11 (“he can certainly recount some element of the facts.”) [42] There was, with respect, no evidence that Mr. Jobb could not comprehend what was said, and the testimony of Dr. Menzies was overwhelmingly to the contrary. He did not express the view that “Mr. Jobb required coaching and repetition in order to understand the most rudimentary aspects of the justice system” although he did express his suspicion that Mr. Jobb’s understanding had, perhaps, been enhanced by “coaching” from his foster mother and his own previous experiences with the justice system. [43] In her concluding paragraph the trial judge found that Mr. Jobb is unable to recount the facts of his offences “in such way that counsel may prepare defence”. There was, with respect, no evidence to support this conclusion and the evidence was to the contrary—that Mr. Jobb was able to recount the facts of his offences. This was evidence in Dr. Obikoya’s report as well as in the passages from Dr. Menzies’ testimony referred to above. That Mr. Jobb be able to participate in his defence in “a meaningful way or assist his counsel during the course of 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 the offences with which he is charged to his counsel. The conclusion, in any case, that Mr. Jobb did not have the ability to testify as to the facts of the charges against him is contrary to the evidence of Dr. Menzies. See, again, transcript p. 28, l. 11 and following. [44] It is my conclusion that the appeal must be allowed, the verdict of unfitness to stand trial set aside and that there be a new trial on the offences which are the subject of this appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 3rd day of December, A.D. 2008. “Smith J.A.” concur. “Richards J.A.” RICHARDS J.A. concur. “Smith J.A.” for HUNTER J.A.
The Crown appeals an order from Provincial Court declaring that the accused is unfit to stand trial. The accused was charged with 29 offences arising out of failures to comply with multiple bail conditions. He was also charged with two indictable thefts. He is 22 years old and suffers from fetal alcohol spectrum disorder, attention deficit disorder and substance abuse. He was diagnosed as mildly mentally retarded and is considered incapable of handling the responsibilities that would enable him to live independently and will always need a protected living environment and sheltered employment. He was found unfit to stand trial on some previous property offences and is still under the supervision of the Provincial Review Board. The trial judge was satisfied that the accused met the first two criteria for fitness to stand trial Ã» he understood the nature of the charges against him and the possible consequences of being found guilty and he understood the difference between a guilty and not guilty plea. The focus of the decision was whether the accused had the capacity to communicate with counsel. The judge found that the accused would not be able to provide instruction to counsel during the trial process due in part to the fact that he is very distractable and could not sufficiently follow court proceedings to instruct counsel. HELD: Appeal allowed. The verdict of unfit to stand trial is set aside and a new trial ordered. The trial judge applied too stringent a test on concluding that the accused was unfit to stand trial and when the proper test is applied, it is apparent that the accused has the capacity to instruct counsel within the meaning of the Code. The trial judge's concern about the accused's distractable nature does not accord with the limited cognitive capacity test. The Courts have applied a test of 'limited cognitive capacity' for determining fitness. This test requires that, with respect to communicating to counsel, the accused is only required to be capable of recounting the fact of the alleged crimes. Limited cognitive capacity does not require analytic ability or the need for the accused to appreciate his own best interests. The authorities establish a very low threshold for fitness to stand trial in keeping with the policy objectives of the Criminal Code and the right of the accused to make full answer and defence.