Gagnon, Gagné, Lavallée

Application for leave to appeal from the sentence. Allowed. Appeal. Allowed in part.

The applicant was found guilty of sexual assault against a minor. His counsel wishes to contest the trial judge’s interlocutory decision dismissing his application to reopen the hearing to present evidence on the applicant’s mental state with a view to obtaining an order to determine his fitness to be sentenced, after which the judge sentenced the applicant to 5 years of imprisonment.

The definition of “unfit to stand trial” in s. 2 of the Criminal Code (R.S.C. 1985, c. C-46) and the wording of ss. 672.11(a) and 672.23(1) leave little room for interpretation: the scheme concerns only the situation of an accused whose fitness is raised as an issue before the verdict is rendered. The sentencing judge is therefore in an untenable situation when a mental health problem is raised at sentencing. Nevertheless, the silence of the law should not diminish the constitutional guarantees of a person charged with an offence. Indeed, the same standards relating to the accused’s cognitive abilities apply throughout the judicial proceedings. The sentencing judge remains bound to ensure that all the proceedings are taking place before an offender who is mentally present. At sentencing, the accused, now known as the offender, benefits from the same right to a determination of whether there are reasonable grounds to believe his fitness is at issue. Moreover, the judge’s power of inquiry, which is based on his residual discretion to ensure a fair trial, may be exercised at all stages of criminal proceedings.

In short, if a question about the offender’s fitness is asked at sentencing, it must be answered at the first stage according to the standard of “reasonable grounds to believe”. The judge will then have two options. The first is to find that there are no reasonable grounds to believe that the offender’s fitness needs to be examined, in which case sentencing proceedings will continue. Should the opposite be determined, the issue of ordering an assessment will be raised. Such an order is not covered by the legislation at the sentencing stage. The power of a Court of Québec judge to suspend the application of certain provisions deemed to be unconstitutional does not include the power to create a positive right as a remedy.

However, if a judge of the Court of Québec has reasonable grounds to believe that evidence concerning the offender’s mental state is necessary to determine his or her fitness to be sentenced, ss. 721 and 723(3) Cr. C. confer on the judge the power to request a report dealing primarily with the accused’s mental state, in the nature of a psychiatric assessment. If this assessment finds that the offender is unfit, the only possible solution is a stay of proceedings because, first, the person most affected does not have access to the scheme in Part XX.1 (ss. 672.1 to 672.95) of the Criminal Code and, second, sentencing proceedings cannot continue without infringing the offender’s constitutional rights. A stay of proceedings should be ordered only if the evidence shows that there is no possibility of the offender’s fitness being restored within a reasonable time. If the unfitness proves to be temporary, sentencing should be postponed until the offender can recover a sufficient mental state within a reasonable time. In the event of a stay, the matter will concern the care to be given the person and must be dealt with under the civil regime.

In this case, the trial judge should have reopened the hearing and permitted an official hearing to verify the allegations of counsel for the applicant regarding his client’s unfitness. This case should therefore be referred back to the Court of Québec.

Text of the decision: http://citoyens.soquij.qc.ca