PROVINCE DE QUEBEC
DISTRICT DE LAVAL
NUMÉRO DU GREFFE : 540
No. DE DOSSIER: 540-01-048499-118
No. D'EVENEMENT: LVL-110221-041
SUPERIOR COURT
(CRIMINAL DIVISION)
______________________________________
Danny HUNT;
APPELLANT – Accused
v.
HER MAJESTY THE QUEEN, Palais de Justice Laval, 2800, boulevard Saint-Martin Ouest, Laval (Québec) H7T 2S9;
RESPONDENT – Prosecutrix
______________________________________
MOTION FOR ABUSE OF PROCESS;
ASSESSMENT ORDERS FOR NON-CRIMINAL RESPONSIBILITY ARE TO BE MADE AT THE END OF TRIAL, R. v. SWAIN;
THE CROWN AND COURT DID NOT PROVIDE EVIDENCE TO SUPPORT THEIR ASSESSMENT ORDER FOR NON-CRIMINAL RESPONSIBILITY, R.v. DOBROTIC;
THE DEMAND, FORM 48, WAS MADE WITHOUT JURISDICTION, R. v. CREIGHTON;
CANADIAN CHARTER OF RIGHTS AND FREEDOMS INFRINGED, s.2(b) FREEDOM OF EXPRESSION, s.15(1) EQUALITY, s.7 LIBERTY AND SECURITY OF PERSON, s.8 UNREASONABLE SEARCH AND SEIZURE, S.11(d) PRESUMED INNOCENT UNTIL PROVEN GUILTY, S.12 CRUEL AND UNUSUAL TREATMENT, S.24;
TO ONE OF THE HONORABLE JUDGES OF THE SUPERIOR COURT, CRIMINAL DIVISION, IN THE DISTRICT OF LAVAL, THE APPLICANT PRESENTS THE FOLLOWING:
INTRODUCTION
[1] On February 21, 2011 Danny Hunt was arrested and charged with uttering threats on facebook, the Laval Police entered his home and seized computers and some hard drives without warrant; P-1
[2] The Laval Police dept. made a demand that Danny Hunt remain incarcerated for a psychological evaluation, Laval Police dept. first to raise the issue of a psychological evaluation; P-2
[3] On February 23, 2011 Judge Lauzon ordered an assessment for non-criminal responsibility for Danny Hunt and he was released on conditions; P-3
[4] Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see R. v. Jewitt,1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure "that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society" (Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, at p. 689, per Lamer J.). It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.
There is a residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings. This is a power, however, of special application which can only be exercised in the clearest of cases.
R. v. Swain
[5] Assessment orders for non-criminal responsibility are to be made at the end of trial as to not interfere with the defense of the accused, if the accused is found innocent there is no need of it; R. v. Langlois, R. v. Wells, R. v. Swain; P-5
The Court concluded that the common law rule that allowed the Crown to raise the accused’s mental state before a verdict had been rendered violated the accused’s rights to have control over his own defence. In so deciding, the Court confirmed (at p. 972): R. v. Langlois;
The Crown’s ability to raise the issue of an accused’s mental capacity is governed by the decision of the Supreme Court of Canada in Swain. Swain confirmed that when an accused does not want to rely on a s. 16 defence of NCRMD, the Crown may raise the issue independently. By doing so the Crown helps ensure that an accused is not wrongly convicted. However, in order to be minimally intrusive on the accused’s right to control the conduct of his defence, the Crown must wait to raise the issue until the trier of fact has decided the accused is guilty of the offence. If the accused is acquitted, the Crown cannot raise the issue. R. v. Wells;
I believe, moreover, that conferring on the prosecution a conditional right to raise the issue of insanity during the course of the trial infringes upon the equality rights of the mentally disabled under s. 15 of the Charter. It denies the mentally disabled, a group in our society which has been negatively stereotyped and historically disadvantaged, the control over their defences reposed in other accused persons and does so in a way which is discriminatory. In denying the mentally disabled personal autonomy in decision making it reinforces the stereotype that they are incapable of rational thought and the ability to look after their own interests. In a word, it denies them equality with other accused persons under the guise, putting it at its best, of a benign paternalism. The prosecution's conditional right will only pass constitutional muster, in my view, if it can be shown that there exists no alternative that achieves the same objective without limiting the accused's s. 7 or s. 15 rights or at least limiting them to a significantly lesser degree. R. v. Swain;
It seems to me that the principle advanced in support of the prosecution's right to introduce evidence of insanity can be effectively implemented by having the issue of the accused's insanity raised at the conclusion of the trial in cases where the defense put forward by the accused have been rejected and the essential elements of the offence have been established by the prosecution beyond a reasonable doubt. R. v. Swain;
R. v. Dobrotic
[6] The Crown and Court did not provide evidence to support their demand for an assessment order for non-criminal responsibility; R. v. Muschke, R. v. Dobrotic; P-6
In the case of R. v. Dobrotic, 1995 N.B.J. No. 222 (Q.L.), the New Brunswick Court of Appeal concluded that even with the consent of the accused to assessment, an order should not be made unless there was sufficient evidence before the judge to provide reasonable grounds to doubt the accused's criminal responsibility. R v Muschke;
Even if they could have been relied upon to establish reasonable grounds for belief, the recitation of facts by counsel disclosed unusual and quite possibly unacceptable conduct on the part of the applicant but did not provide reasonable and probable grounds for believing that the accused was incapable of appreciating the nature and quality of his acts in the form of the alleged threats or of knowing that his acts were wrong. R v Muschke;
R. v. Creighton
[7] The form 48 given to Danny Hunt on February 23, 2011 did not contain the correct specific information and did not comply with the mandatory provisions of Section 672.13, it was therefor made without Jurisdiction, R. v. Creighton;
<
[8] Following the motion to contest the assessment order for non-criminal responsibility by the accused, MOTION TO CONTEST PSYCHIATRIC EVALUATION FOR DANNY HUNT'S DEFENSE, on May 24, 2011 - June 13, 2011, the court and crown provided the correct information and it was hand written on the form 48 on June 13, 2011; P-4
[9] Furthermore, the attempt to correct the error on June 13, 2011 and the conduct exhibited during the June 13, 2011 court session is misconduct;
s.11(d) PRESUMED INNOCENT UNTIL PROVEN GUILTY
[10] Demands for an assessment order for non-criminal responsibility are to be made at the end of trial as to not interfer with the accused’s defense, if the accused is found innocent there is no need for it, R. v. Swain;
[11] The assessment order for granted before trial for non-criminal responsibility presumes guilty instead of innocent in a judicial proceeding;
s.15(1) EQUALITY, R. v. Swain
[12] The Laval Police made the following demand RAPPORT D’OBJECTION DE REMISE EN LIBERTE; P-2
RAPPORT D’OBJECTION DE REMISE EN LIBERTE
- L’accuse na aucun dossier criminel.
- L’accuse est prevenu dans un dossier de Novembre 2003 dans lequel il mentionnait qu’il avait tue une femme. Suite a l’enquete, la femme n’estait pas mort et il a été declare criminellement non-responsable.
- L’accuse est schizophrene et est en suivi medical.
Je m’objecte donc a la remise en liberte de l’accuse HUNT afin que ce dernier subisse une evaluation psychiatrique.
[13] The demand that the accused remain incarcerated is not because he does not have a criminal record <
It is because he has a disability <
[14] A defense lawyer presented to the accused at the Palais de Justice advised the accused that he did not have a choice but to comply with this Laval Police demand and remain incarcerated for 30 days, the accused dismissed his services to represent himself;
The accused explained to the defense lawyer that the criminal charges were fabricated from a Mobbing Research .. article published on CNN iReport and shared on facebook, and that he was the creator and founder of the website called Psychological Harassment Information Association www.psychologicalharassment.org;
The defense lawyer persisted in claiming that the accused had no choice but to remain incarcerated for 30 days as the Laval Police demand requested, the accused dismissed his services;
The defense lawyer later returned stating he was under the service of the accused’s mother, Cecile Hunt, and that he would be released under conditions;
The accused does not remember any discussion concerning an assessment order for non-criminal responsibility since he had made it clear that this was a Mobbing Research article and that he was completely innocent of the criminal allegations;
[15] The Court and Crown presented conditions for release and ordered an assessment for non-criminal responsibility on February 23, 2011; P-3
[16] To raise the issue of insanity during the course of the trial infringes upon the equality rights of the mentally disabled under s. 15 of the Charter and does so in a way which is discriminatory. R. v. Swain;
I believe, moreover, that conferring on the prosecution a conditional right to raise the issue of insanity during the course of the trial infringes upon the equality rights of the mentally disabled under s. 15 of the Charter. It denies the mentally disabled, a group in our society which has been negatively stereotyped and historically disadvantaged, the control over their defences reposed in other accused persons and does so in a way which is discriminatory. In denying the mentally disabled personal autonomy in decision making it reinforces the stereotype that they are incapable of rational thought and the ability to look after their own interests. In a word, it denies them equality with other accused persons under the guise, putting it at its best, of a benign paternalism. R. v. Swain;
In conclusion, it is my view that while preventing insane persons from being convicted of criminal offences is an important objective, it is not of sufficient importance to justify overriding such a fundamental constitutional right of the accused as is in issue here, particularly where the objective can be achieved by the less intrusive means I have suggested. I would therefore allow the appeal and enter a stay of proceedings. R. v. Swain;
[17] Even with consent of the accused, without sufficient evidence before the judge to provide reasonable grounds to doubt the accused’s criminal responsibility the assessment order is unlawful, R. v. Dobrotic, R v Muschke;
In the case of R. v. Dobrotic, 1995 N.B.J. No. 222 (Q.L.), the New Brunswick Court of Appeal concluded that even with the consent of the accused to assessment, an order should not be made unless there was sufficient evidence before the judge to provide reasonable grounds to doubt the accused's criminal responsibility. R v Muschke
Even if they could have been relied upon to establish reasonable grounds for belief, the recitation of facts by counsel disclosed unusual and quite possibly unacceptable conduct on the part of the applicant but did not provide reasonable and probable grounds for believing that the accused was incapable of appreciating the nature and quality of his acts in the form of the alleged threats or of knowing that his acts were wrong. R v Muschke
It follows that because the initial order was unlawful, the extension was equally invalid. R v Muschke
S.2(b) FREEDOM OF EXPRESSION
[18] On February 21, 2011 the accused wrote a Mobbing Research article, shared the article on Facebook while recording his computer actions, and published the article and the video on CNN iReport; P-8
[19] The article followed and continued another Mobbing Research article published on February 13, 2011; P-9
[20] The accused Danny Hunt is the creator of the world leading website on psychological harassment called Psychological Harassment Information Association and Mobbing is part psychological harassment; P-10
www.psychologicalharassment.info
www.psychologicalharassment.org
[21] The accused is the creator of a Facebook page called Psychological Harassment Information Association; P-11
http://www.facebook.com/pages/Psychological-Harassment-Information-Association/140895545955030
[22] The accused is the creator of a Facebook page called Mobbing Research; P-12
http://www.facebook.com/pages/Mobbing-Research/178328388894986
[23] The criminal allegations of uttering threats on facebook towards women fabricated from a CNN iReport Mobbing Research article that was shared on facebook for discussion infringe on s.2 Freedom of Expression;
[24] Criminal Code 264.1 Uttering Threats;
Uttering threats
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.
[25] R. v. Clemente;
Firstly, a serious threat to kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear. Conversely, such a threat uttered with the intent to intimidate or cause fear must have been uttered with the intent that it be taken seriously.
The actus reus of the offence is the uttering of threats of death or serious bodily harm.
The mens rea is that the words were meant to intimidate or to be taken seriously.
Under the section the threat must be of death or serious bodily harm.
That is to say, a serious threat to kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear. Conversely, a threat uttered with the intent to intimidate or cause fear must have been uttered with the intent that it be taken seriously. Both of these formulations of the mens rea constitute an intention to threaten and comply with the aim of the section.
The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute a threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat.
[26] The definition of ‘Rampage’ does not mean or include the words ‘to cause death or serious bodily harm to any person’ as indicated in the criminal code section 264.1 (1) (a) to cause death or bodily harm to any person;
Definition of Rampage
Merriam Webster:
intransitive verb: to rush wildly about
Examples of RAMPAGE -- Rioters rampaged through the streets of the city.
Cambridge:
to go through an area making a lot of noise and causing damage
The demonstrators rampaged through the town, smashing windows and setting fire to cars.
Macmillan:
to behave in an uncontrolled way, especially when this involves damaging or destroying property over a wide area
P-15
[27] The Laval Police criminal allegation: [go on a rampage] L' accuse COMMET AINSI L'INFRACTION DE PROFERED DES MENACES DE CAUSELA MORT A L'ARTICLE 264.1 (1)a)(2)a);
Dear Police, I write this suicide note so that you won't have too, I just want everyone to know that if I commit suicide today or [go on a rampage] it's not because my means of subsistence have been eliminated ..
L' accuse COMMET AINSI L'INFRACTION DE PROFERED DES MENACES DE CAUSELA MORT A L'ARTICLE 264.1 (1)a)(2)a)
P-1
[28] ‘Dear Police, I write this suicide note so that you won't have too,’ is satire used in a Mobbing Research article and the intent is not to be taken seriously, the police do not write suicide notes for suicide victims or crimes;
[29] Uttering threats, mens rea, R. v. Dobrotic;
Several times, on the trip to jail, he threatened to kill the officers. One of them stopped counting after the fourth threat.
In R. v. Clemente, 1994 CanLII 49 (SCC), [1994] 2 S.C.R. 758, Cory J., speaking for the full court said at 763:
Under the present section the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mans rea is that the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously.
To determine if a reasonable person would consider that the words were uttered as a threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed.
WORDING OF CHARGES
Finally, the charges relating to the uttering of threats do not follow the wording of 264.1(1) (a) of the Criminal Code. Both counts have omitted the word "serious" in relation
[Page 7]
to the offence of bodily harm. This may prove to be an essential ingredient, according to the circumstances of the case.
DISPOSITION
The defects highlighted in this judgment are sufficiently serious, such that they strike at fundamental justice. The convictions and sentences must be quashed. Under the circumstances, it would not serve the ends of justice to direct a new trial. The appeals are allowed, the convictions are quashed and judgments of acquittal are entered.
s.8 UNREASONABLE SEARCH AND SEIZURE
Hunter v Southam Inc., R. v. Grant
[30] The accused computers and some hard drives were seized without warrant s.489.1 on February 21, 2011; P-13
[31] In Hunter v Southam the Supreme Court of Canada decided that a search without prior authorization is presumed to be unreasonable and contrary to s. 8 of the Charter, unless the party seeking to justify it can refute this presumption;
If the issue to be resolved in assessing the constitutionality of searches under s. 10 were in fact the governmental interest in carrying out a given search outweighed that of the individual in resisting the governmental intrusion upon his privacy, then it would be appropriate to determine the balance of the competing interests after the search had been conducted. Such a post facto analysis would, however, be seriously at odds with the purpose of s. 8. That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.
A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference.
[Page 161]
I recognize that it may not be reasonable in every instance to insist on prior authorization in order to validate governmental intrusions upon individuals’ expectations of privacy. Nevertheless, where it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure.
Here also, the decision in Katz, supra, is relevant. In United States v. Rabinowitz, 339 U.S. 56 (1950), the Supreme Court of the United States had held that a search without warrant was not ipso facto unreasonable. Seventeen years later, however, in Katz, Stewart J. concluded that a warrantless search was prima facie “unreasonable” under the Fourth Amendment. The terms of the Fourth Amendment are not identical to those of s. 8 and American decisions can be transplanted to the Canadian context only with the greatest caution. Nevertheless, I would in the present instance respectfully adopt Stewart J.’s formulation as equally applicable to the concept of “unreasonableness” under s. 8, and would require the party seeking to justify a warrantless search to rebut this presumption of unreasonableness.
[32] The seized computers were return on April 12, 2011 after a motion for restitution was granted, the Crown advised the accused that no analysis of the computers data would be needed, and therefore the Crown did not justify and refute this presumption;
[33] The criminal allegation of uttering threats was used to justify seizing computers without warrant, the criminal allegation of uttering threats [go on a rampage] do not match the criminal code definition s. 264.1(1)(a) actus reus of uttering of threats of death or serious bodily harm, the search and seizure was unreasonable;
[34] Furthermore, the assessment order for non-criminal responsibility would also provide the Crown with detailed private medical history and information as indicated by the Prison Psychiatric access demand form; P-14
[35] 8. Everyone has the right to be secure against unreasonable search or seizure. R. v. Grant, [1993] 3 SCR 223;
The common law has long demonstrated a respect for freedom from trespass on private property by state authorities, especially where the homes of individuals are involved. That respect for privacy in the home has been expanded by this Court to include other areas in which individuals expect a high degree of privacy, including the office (Hunter, supra) and to a lesser degree even a motor vehicle in some cases: see R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, and R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615. Protection against unreasonable search and seizure is maximized by the requirement that entries by state authorities be pre‑authorized by a judicial arbiter.
As was the case in Kokesch, supra, the warrantless perimeter search in the case at bar involved trespass by state agents onto private residential property. Given the protection of private property interests which the common law has ordinarily offered, the nature of the trespass is "far from trivial or minimal": Kokesch, supra, at p. 29
1. Is s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1, to the extent that it authorizes a search without a warrant of any place other than a dwelling house, inconsistent with the right to be secure against unreasonable search or seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms and, to that extent, inoperative and of no force and effect?
Answer:Yes, to the extent that it authorizes such searches in circumstances other than in exigent circumstances where it would be impracticable to obtain a warrant.
2. Is s. 10 of the Narcotic Control Act, R.S.C., 1985, c. N-1, to the extent that it may authorize the perimeter search of a dwelling‑house without a warrant inconsistent with the right to be secure against unreasonable search or seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms and, to that extent, inoperative and of no force and effect?
Answer:Yes, to the extent that it authorizes such searches in circumstances other than in exigent circumstances where it would be impracticable to obtain a warrant.
[36] In Entick v. Carrington, supra, it was flatly stated that if state authorities enter a house without the express permission of Parliament or the common law, they commit a trespass; the serious intrusion of the legitimate high expectations of privacy in one's home cannot be ignored in assessing the situation. R. v. Silveira, [1995] 2 SCR 297;
Application of Section 8 to the Securing of a Dwelling-House
41 I note at the outset that the Crown has conceded that the appellant's constitutional right to be secure against an unreasonable search and seizure has been breached; it recognizes that the appellant had a reasonable expectation of privacy in his home. In my view, the Crown was perfectly right in making this concession, although the matter was apparently the source of some confusion in the courts below. It is surprising that nearly four hundred years after Semayne's Case (1604), 5 Co. Rep. 91, 77 E.R. 194, there should be any debate about the matter. That case firmly enunciated the principle that "a man's home is his castle", and that even the King himself had no right to invade the sanctity of the home without the authority of a judicially issued warrant. That principle has remained ever since as a bulwark for the protection of the individual against the state. It affords the individual a measure of privacy and tranquillity against the overwhelming power of the state; see also Entick v. Carrington (1765), 19 St. Tr. 1029. It is a fundamental precept of a free society. The apparent confusion in the courts below is all the more disturbing since in the very statute the police were attempting to enforce, the Narcotic Control Act (ss. 10 and 12), it is made abundantly clear that a police officer may only enter a dwelling "under authority of a warrant" issued by a justice.
What the appellant lost ‑‑ and what we all lose when such intrusions take place ‑‑ is the security guaranteed by the Charter that the police will not invade our homes without conforming to the established rule that constitutes the cornerstone of our liberties.
47 Nor do I agree with the majority's view that the violation of the Charter rights of the appellant's family is irrelevant. -- The serious intrusion of the legitimate high expectations of privacy in one's home cannot be ignored in assessing the situation.
50 The principle that a search of a dwelling-house without a warrant is unjustifiable is firmly entrenched in the common law. It goes back at least 230 years, when in Entick v. Carrington, supra, it was flatly stated that if state authorities enter a house without the express permission of Parliament or the common law, they commit a trespass. No exception to this principle has since been made to permit a search in exigent circumstances or otherwise. The principle has in recent years been restated in Colet v. The Queen, 1981 CanLII 11 (SCC), [1981] 1 S.C.R. 2, where this Court unanimously held that police who enter and search a dwelling-house without a warrant are trespassers, and that specific statutory authority is required to alter this rule. Moreover, Ritchie J. made it clear that any such provision would be narrowly interpreted, concluding, at p. 10, that "any provision authorizing police officers to search and enter private property must be phrased in express terms" (emphasis added). The terms of ss. 10 and 12 of the Narcotic Control Act are clear. They authorize entry into a dwelling-house only under the authority of a warrant. No exception is made for exigent circumstances; there is thus no "specific statutory authority" to use the words of Ritchie J. There is no mention of exigent circumstances as a ground for an unwarranted police entry to search a dwelling-house. The common law since Entick v. Carrington has created no such justification, and it would require a marked departure from the law as set forth in Colet v. The Queen to do so, one that would involve a consideration of whether this conformed to s. 8 of the Charter.
[37] This motion for appeal is well founded in facts and law.
DISCUSSION
R. v. Langlois, 2005 BCCA 162 (CanLII)
23 In R. v. Swain, 1991 CanLII 104 (SCC), 1991 1 S.C.R. 933, the Supreme Court of Canada considered the accused’s rights in the context of the operation of the insanity defence under the Code prior to the amendments in 1992 which brought in the NCRMD provisions. One of the issues in that case was whether the Crown could raise the issue of insanity over the wishes of the accused. The Court concluded that the common law rule that allowed the Crown to raise the accused’s mental state before a verdict had been rendered violated the accused’s rights to have control over his own defence. In so deciding, the Court confirmed (at p. 972):
Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require than an accused person have the right to control his or her own defence.
24 The Supreme Court’s response to its finding was to vary the common law rule to allow the Crown to raise the issue of the mental capacity of the accused only after the court had concluded that the accused is otherwise guilty of the offence — the procedure adopted in the NCRMD Code provisions in 1992.
R v Wells
8 The following Criminal Code sections are relevant to the defence of NCRMD:
16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
672.12 (1) The court may make an assessment order at any stage of proceedings against the accused of its own motion, on application of the accused or, subject to subsections (2) and (3), on application of the prosecutor.
(2) Where the prosecutor applies for an assessment in order to determine whether the accused is unfit to stand trial for an offence that is prosecuted by way of summary conviction, the court may only order the assessment if
(a) the accused raised the issue of fitness; or
(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is fit to stand trial.
(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if
(a) the accused puts his or her mental capacity for criminal intent into issue; or
(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.
9 The defence of NCRMD in s. 16 reflects a principle of fundamental justice that a person who was insane at the time of the offence (and was therefore incapable of forming criminal intent) should not be convicted: R. v. Swain, 1991 CanLII 104 (SCC), 1991 1 S.C.R. 933, 63 C.C.C. (3d) 481.
10 The Crown’s ability to raise the issue of an accused’s mental capacity is governed by the decision of the Supreme Court of Canada in Swain. Swain confirmed that when an accused does not want to rely on a s. 16 defence of NCRMD, the Crown may raise the issue independently. By doing so the Crown helps ensure that an accused is not wrongly convicted. However, in order to be minimally intrusive on the accused’s right to control the conduct of his defence, the Crown must wait to raise the issue until the trier of fact has decided the accused is guilty of the offence. If the accused is acquitted, the Crown cannot raise the issue.
R v Swain
I believe, moreover, that conferring on the prosecution a conditional right to raise the issue of insanity during the course of the trial infringes upon the equality rights of the mentally disabled under s. 15 of the Charter. It denies the mentally disabled, a group in our society which has been negatively stereotyped and historically disadvantaged, the control over their defences reposed in other accused persons and does so in a way which is discriminatory. In denying the mentally disabled personal autonomy in decision making it reinforces the stereotype that they are incapable of rational thought and the ability to look after their own interests. In a word, it denies them equality with other accused persons under the guise, putting it at its best, of a benign paternalism. The prosecution's conditional right will only pass constitutional muster, in my view, if it can be shown that there exists no alternative that achieves the same objective without limiting the accused's s. 7 or s. 15 rights or at least limiting them to a significantly lesser degree.
It seems to me that the principle advanced in support of the prosecution's right to introduce evidence of insanity can be effectively implemented by having the issue of the accused's insanity raised at the conclusion of the trial in cases where the defences put forward by the accused have been rejected and the essential elements of the offence have been established by the prosecution beyond a reasonable doubt. At that point I think either party should be free to raise the issue of the accused's insanity. I realize, of course, that there is an element of circularity involved in this approach in that insanity has a direct bearing on proof of mens rea. However, I prefer this approach since it both respects the accused's right to waive the defence of insanity and ensures that any resultant prejudice he suffers in the finding of guilt flows from his own decision not to avail himself of the defence and not as a consequence of the prosecution's having raised the issue in the middle of the trial process.
In my view, if the prosecution's right to raise the issue of the accused's insanity is confined as I have suggested, the requirements of s. 16(1) are satisfied and no infringement of the accused's trial rights under either s. 7 or s. 15 are involved. I express no opinion as to whether any other constitutional rights of the accused, other than his trial rights, are infringed by such a rule or by s. 16(1) of the Code and, if so, whether any such infringement would be saved by s. 1 since this is not, for obvious reasons, before us.
I should add that I recognize that restricting the Crown's right to introduce the issue of insanity only after an accused has been found guilty may well result in some accuseds who are in fact insane being acquitted of criminal charges and thereby escaping incarceration under the Criminal Code entirely. To some, no doubt, this would amount to a failure of our criminal justice system. In my view, however, the incarceration of those persons in institutes for the criminally insane is neither mandated by the principles of fundamental justice nor by the Criminal Code. Section 16(1) of the Code only makes it illegal to convict an insane person of a criminal offence. The potential risk of the criminally insane eluding the reach of the criminal law remains, in other words, a matter for Parliament if it views the civil commitment procedures instituted by the provincial legislatures as inadequate for the proper protection of the public.
In conclusion, it is my view that while preventing insane persons from being convicted of criminal offences is an important objective, it is not of sufficient importance to justify overriding such a fundamental constitutional right of the accused as is in issue here, particularly where the objective can be achieved by the less intrusive means I have suggested. I would therefore allow the appeal and enter a stay of proceedings. I would answer the constitutional questions in the manner indicated by the Chief Justice.
I agree with Lamer C.J's conclusion for the reason given by him that a transitional period in the terms he has outlined is required in order to deal with the consequences of a finding by this Court that s. 542(2) of the Criminal Code is of no force or effect.
R v Muschke
47 The other factor which might be construed as evidence upon which the order to assess could have been based is the statement by the applicant's counsel that the applicant did not much care if an assessment order were made provided it was made on an outpatient basis. The statement might have been construed as an admission of the necessity of assessment. In the case of R. v. Dobrotic, 1995 N.B.J. No. 222 (Q.L.), the New Brunswick Court of Appeal concluded that even with the consent of the accused to assessment, an order should not be made unless there was sufficient evidence before the judge to provide reasonable grounds to doubt the accused's criminal responsibility.
48 Even if they could have been relied upon to establish reasonable grounds for belief, the recitation of facts by counsel disclosed unusual and quite possibly unacceptable conduct on the part of the applicant but did not provide reasonable and probable grounds for believing that the accused was incapable of appreciating the nature and quality of his acts in the form of the alleged threats or of knowing that his acts were wrong.
51 While the judge spoke of fitness to stand trial, the matter was not in issue as the application was made by the prosecutor pursuant to s. 672.12(3)(b) of the Code. Had fitness been an issue, there was nothing before the judge, whether by statements from counsel or otherwise, which would have justified the formulation of a belief based on reasonable grounds that the applicant, on account of mental disorder, was unable to understand the nature or object of the proceedings in which he was involved, understand the possible consequences of the proceedings, or communicate with counsel. One or more of these factors are necessary in order to formulate an opinion that one is unfit to stand trial as the phrase is defined in s. 2 of the Code.
52 It follows that because the initial order was unlawful, the extension was equally invalid.
R. v. Creighton, 2002 BCSC 1190 (CanLII)
IN THE SUPREME COURT OF BRITISH COLUMBIA
INTRODUCTION
1 This is a similar application by the Crown to that of R. v. Gray, Number 20507, Vancouver Registry, for an Order of certiorari to set aside an Order made also by her Honour Judge Trueman on May 13, 2002.
3 On May 13, 2002, Judge Trueman made the following Order:
Pursuant to Section 672.12(1) and pursuant to Section 672.13(1) of the Criminal Code, Cecil Creighton is to be examined and assessed for developmental disorders, including ARND, by a medical doctor, preferably a developmental pediatrician experienced in the examination and assessments needed to make an accurate diagnosis. This medical examination is to be undertaken as part of the multi-disciplinary approach usual in such cases, so that the individual effects of such a disorder on Cecil Creighton can be determined, particularly in regard to impulsivity. The examination is to be conducted within the ambit of the existing medical system of public healthcare in the Province of British Columbia or by funds designated by the Attorney General of the Province of British Columbia for the administration of justice. The doctor is to be agreed upon by the Crown and Defence. The place of examination is to be arranged by the Crown and the Defence and by further Court Order, if necessary.
This examination is for the purposes of discerning whether Cecil Creighton was suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of Section 16(1). Pursuant to Section 672.14(3) of the Criminal Code, this assessment order will remain in force until July 10, 2002. The results of this assessment are to be presented to the Court, in writing at 2 p.m., July 10, 2002, in Courtroom 513 at the Provincial Court of British Columbia, 222 Main Street, Vancouver British Columbia.
The medical doctor charged with the responsibility of the examination is to be advised that the Court has a photograph of Cecil Creighton as a toddler.
4 The Crown’s complaint here is similar to that made in Regina v. Gray. In addition the Crown says the Assessment Order does not comply with the mandatory provisions of Section 672.13 of theCriminal Code.
5 In light of what I decided earlier in R. v. Gray, the Order to set aside Judge Trueman’s Order must be granted.
7 I agree also with the Crown’s contention that the mandatory provisions of Section 672.l3 were not complied with.
FAILURE TO COMPLY WITH MANDATORY PROVISIONS
26 Unlike a judge of the Supreme Court, a Provincial Court Judge possesses no inherent powers to control its own process. The powers of a Provincial Court Judge are entirely statutory.
27 The powers and functions of a Provincial Court Judge acting under the Criminal Code are therefore circumscribed by the provisions contained therein. Jurisdiction must be conferred directly by Criminal Code provisions or by necessary implication: R. v. Doyle, (1976) 29 C.C.C. 2d No. 177 (S.C.C.).
28 As the Criminal Code constitutes the only source of jurisdiction in Provincial CourtCriminal Code proceedings, failure of a Provincial Court Judge to observe mandatory provisions in the Criminal Code amounts to jurisdictional error. Jurisdiction is lost by a Provincial Court Judge who fails to observe a mandatory section of the Criminal Code: R. v. Forsythe, (1980) 53 C.C.C. (2d) No. 225 (S.C.C.); Doyle.
29 Subsection 672.13 is a mandatory section. It provides that an assessment order must specify first of all the service, person, or hospital where the assessment is to be made, and secondly whether the accused is to be detained in custody while the order is in force.
30 According to Black’s Law Dictionary, specify means “To mention specifically; to state in full and explicit terms; to point out; to tell or state precisely or in detail; to particularize, or to distinguish by words one thing from another”.
31 The Crown submitted that Judge Trueman’s May 13, 2002 assessment order does not even suggest, let alone specify, by whom or where the assessment is to be carried out. Nor does the assessment order make any mention of Mr. Creighton’s custodial status.
32 As the assessment order does not specify service, person, hospital, or custodial status, it does not comply with s. 672.13. An assessment order which does not comply with s. 672.13 cannot depend upon that section for its jurisdictional basis. Since s. 672.13 is a mandatory section in Part XX.1, the Part governing assessment orders, an assessment order which does not comply with s. 672.13 cannot depend upon Part XX.1 for its jurisdictional basis. There being no other source of jurisdiction for the assessment order, the assessment order was made without jurisdiction.
CONCLUSION
33 For the reasons stated, an order to set aside Judge Trueman’s Order dated May 13, 2002, is granted.
ASSESSMENT ORDER FOR NON-CRIMINAL RESPONSIBILITY AND ELEMENTS OF SMEAR CAMPAIGN
[37] The November 2003 Surete du Quebec criminal mischief charge mentioned in the Laval Police RAPPORT D’OBECTION DE REMISE EN LIBERTE;
The 2003 criminal allegations of criminal mischief << L’accuse est prevenu dans un dossier de Novembre 2003 dans lequel il mentionnait qu’il avait tue une femme. Suite a l’enquete, la femme n’estait pas mort et il a été declare criminellement non-responsable.>> resulted from criminal harassment participants leading the accused to believe and conclude that he had caused the death of a teammate, a girl of around 14 year old, when he was a minor of around 17, in an attempt to induce fear through threats of being framed and incarceration, to make him run away, a form fugitive, which he reported to the Surete du Quebec;
The resulting Surete du Quebec criminal allegations of criminal mischief were a form of organized crime and criminal harassment trap in which the accused now needed to prove that he had caused a teammates death to be found innocent of criminal mischief, a form of smear campaign that resulted in non-criminal responsibility in 2003;
RAPPORT D’OBJECTION DE REMISE EN LIBERTE
- L’accuse na aucun dossier criminel.
- L’accuse est prevenu dans un dossier de Novembre 2003 dans lequel il mentionnait qu’il avait tue une femme. Suite a l’enquete, la femme n’estait pas mort et il a été declare criminellement non-responsable.
- L’accuse est schizophrene et est en suivi medical.
Je m’objecte donc a la remise en liberte de l’accuse HUNT afin que ce dernier subisse une evaluation psychiatrique.
[38] The elements of a smear campaign is linked to criminal allegations that the accused is innocent of but found non-criminally responsible for a crime committed due to mental illness;
Example:
RAPPORT D’OBJECTION DE REMISE EN LIBERTE
- L’accuse na aucun dossier criminel.
- L’accuse est schizophrene et est en suivi medical.
- L’accuse est prevenu dans un dossier de Novembre 2003 dans lequel il mentionnait qu’il avait tue une femme. Suite a l’enquete, la femme n’estait pas mort et il a été declare criminellement non-responsable.
- L’accuse a fait des menaces de mort en verse les femme en 2011 et il a ete declare criminellement non-responsible.
Je m’objecte donc a la remise en liberte de l’accuse HUNT afin que ce dernier subisse une evaluation psychiatrique.
S.12 CRUEL AND UNUSUAL TREATMENT
[30] The accused claims that powerful radar is used to make him vulnerable to an assessment order for non-criminal responsibility and intervention by Laval Police;
Another run away strategy « run away or get cancer » that results in run aways being detained and vulnerable to bad or participating defense lawyers at great expense;
Intervention detains the accused during Laval Police criminal allegation and proceedings, making the accused vulnerable to bad or participating defense lawyers at great expense;
Non-criminal responsibility sanctions the criminal allegations of uttering threats towards women in a Mobbing Research article by the Laval Police, incarceration, and all the events that surround these criminal allegations such as tres passing and the seizure of computers without warrant, and possible communications interception s. 183;
The Laval Police threatened to detain the accused on three seperate occassions;
Criminal allegations that overwhelme the accused while the accused is attacked through organized crime and powerful radar linked to different cancers such as lung cancer and leukemia, the unlawful assessment order makes the accused vulnerable to the smear campaign elements and a form or homicide through resulting cancers;
The accused filed a complaint with the international OHCHR and also wrote an organized crime strategy plan that reflects his claim;
The accused is a human rights defender and believes that if human rights violations and crime remain hidden, unrepported, and un written they remain invisible, therefor it is written and reported in order to prevent this type of human rights violation and discourage them through awareness;
FOR THESE MOTIVES, MAY IT PLEASE THE COURT:
RECEIVE the present motion;
GRANT the stay of proceedings;
RENDER judgement in accordance to the demands of justice;
THE WHOLE with costs.
AND I SIGNED IN LAVAL
The 17 October 2011
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Danny Hunt
Defendant
Copie Conforme
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