|
Criminal - Mental Disorder. R. v. Kipusi
In R. v. Kipusi (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, here brought against convictions for "four counts of criminal harassment and one count of breach of release conditions".
Here the court considered CCC 672.21 ['Mental Disorder - Protected Statements']:[2] Dr. Julian Gojer, a forensic psychiatrist, conducted a court ordered assessment of the appellant on the question of whether he was not criminally responsible by reason of mental disorder (“NCR”). Dr. Gojer concluded that there was not sufficient evidence to ground an NCR defence.
[3] During the assessment process, the appellant made various statements to Dr. Gojer. The Crown sought to introduce those statements at the appellant’s trial. Unfortunately, no one adverted to the fact that these were “protected statements” for purposes of s. 672.21 of the Criminal Code, R.S.C. 1985, c. C-46, and were presumptively inadmissible, subject to certain exceptions.
[4] The proceedings gave rise to unfairness in three respects:(1) There was no voir dire to determine admissibility of the protected statements and, if admissible, the limited use to which they could be put;
(2) The Crown called Dr. Gojer to testify about the appellant’s statements before putting the statements to the appellant in cross-examination, thereby failing to comply with ss. 10 and 11 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA”);
(3) The Crown failed to advise the defence that it would be seeking to introduce the protected statements. In the result, the appellant did not know the full extent of the case he had to meet when he made the decision to testify at his trial. [5] In the result, the verdicts cannot stand, and a new trial must be ordered.
....
a. Leading Protected Statements Without a Voir Dire
[15] The statements made by the appellant to Dr. Gojer were “protected statements”, pursuant to s. 672.21 of the Code. That section provides as follows:672.21 (1) In this section, protected statement means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.
(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of
(a) determining whether the accused is unfit to stand trial;
(b) making a disposition or placement decision respecting the accused;
(c) determining, under section 672.84, whether to refer to the court for review a finding that an accused is a high-risk accused or whether to revoke such a finding;
(d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child;
(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;
(f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or
(g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding. [16] These were statements “made during the course and for the purposes of an assessment or treatment directed by a disposition”. In the ordinary course, such statements are not admissible as evidence against an accused person, though there are some exceptions. Among them is that stated in s. 672.21(3)(f), which permits introduction of statements for the purpose of “challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously”: R. v. G. (B.), 1999 CanLII 690 (SCC), [1999] 2 S.C.R. 475, at para. 72.
[17] When this exception applies, the protected statements may only be used for impeachment purposes. They cannot be used to prove guilt. Unlike other statements of an accused person, which are admissible for their truth, s. 672.21(3)(f) provides protected statements are exclusively admissible to demonstrate inconsistency and thereby challenge the credibility of the trial testimony. . R. v. Wittke
In R. v. Wittke (Ont CA, 2025) the Ontario Court of Appeal the appellant applied for a fresh CCC 672.11
psychiatric assessment:[1] The appellant brings a motion for a fresh psychiatric assessment under s. 672.11 of the Criminal Code, R.S.C. 1985, c. C-46. He says that such an assessment will show that he lives with several psychiatric disorders, including intermittent explosive disorder, which, he asserts, could support his position that he did not have the mens rea to commit the murder for which he has been convicted.
[2] To obtain an order for an assessment, the appellant must show reasonable grounds that the assessment is necessary to determine an issue of fitness or that he is not criminally responsible. Reasonable grounds requires a clear, tangible basis in the evidence.
[3] We are not prepared to grant the order sought.
[4] First, a psychiatric assessment was commissioned by the defence at the trial stage. That assessment was undertaken by a qualified forensic psychiatrist who is an expert in the field of criminal law and criminal responsibility and whose credentials or experience are not in question on this motion. The assessment confirmed the diagnoses the appellant now seeks to show. However, following a voir dire in which the expert opined that the diagnoses did not preclude the ability to form the intent for murder, the defence made the strategic decision not to call her as a witness at trial. This was a strategic decision the defence was entitled to make, but not a basis for a further assessment at the appeal stage.
[5] Second, we are not satisfied that a fresh assessment is necessary, or that a new assessment could reasonably shed light on the appellant’s psychiatric circumstances eight years ago when the offence was committed. No evidence has been tendered to show that the psychiatric report prepared for trial was flawed, or that a fresh assessment would assist the appellant in advancing his appeal. There is no evidence that anything of substance has changed since the first report was prepared: see R. v. Campbell, 2021 ONCA 423. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal considered a CCC 672.21 ['Mental Disorder - Protected Statements'] issue:[22] This leads into a complicating issue, which arises from the fact that the appellant’s statements recorded in the psychiatric report were “protected statements” under s. 672.21 of the Criminal Code. That meant they were not “admissible in evidence” without the accused’s consent: s. 672.21(2). It is not clear from the record when the trial judge became aware of the contents of the psychiatric report. It is clear, though, that by the time of the Corbett application, the content of the report was known to the trial judge because he summarizes it in his reasons, as set out above.
|
