Miller c. R., 2024 QCCS 2294
[46] At this point, it may also be useful to recall that the coexistence of trial fairness and trial efficiency is now a recognized value underpinning the criminal justice system.[18]
[47] Turning to one last legal issue of possible relevance to the case, and as noted earlier, Immer J. concluded, on much of the same evidence, that Mr. Miller had sufficient cognition to observe and recollect, as per the Marquard approach. The issue was that of his sufficient capacity to communicate.
[48] I incidentally note that fitness to stand trial is presumed but can be challenged and further assessed under s. 672.22 and ssq. of the Criminal Code at any stage of the proceedings. Unfitness is also defined in s. 2.[19]
[49] Fitness was recently discussed by the Ontario Court of Appeal in Bharwani.[20] It was recalled and held that under s. 2 of the Code, and according to the case law, an accused must be capable of communicating rationally with counsel but need not have the capacity to engage “in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests”.[21] The test is also well-known as the “limited cognitive capacity” test.
[50] This said, and in line with the opinion of the above-referenced authors of Charter remedies, a stay of proceedings “may be available even where there has been no application under section 672.23 of the Code to declare the accused unfit to stand trial on account of mental disorder”.[22] In other words, fitness to stand trial is separate and distinct from whether a stay should be imposed as a result of the poor medical condition of the accused, be it mental or physical.
[51] The authors went on noting that a stay is substantially supported “where a trial would likely exacerbate a serious health condition or, more commonly, where the accused’s fragile condition would render them unable to participate meaningfully in the defence […] [or if] a trial were shown to be life-threatening […]”.[23]
[52] The authors and the parties also referred, among other cases, to Magomadova, a decision from the Alberta Court of Appeal which suggested a framework to address issues of that sort: fair trial rights would be infringed if, on balance, mental or physical health prevents an accused from adequately defend themselves in not being able to understand the proceedings or their consequences, communicate with counsel, testify if necessary, or where the trial itself would jeopardize their health.[24]
[53] In that case, the stay was overturned by a majority of the Alberta Court of Appeal on the ground that the evidence was insufficient to support a stay in the circumstances of that case. Of note, holding a life-threatening trial would fall under the residual category.[25]
[54] When fair trial rights are at issue because of the accused’s health, more specific considerations may be at play. However, as a general rule, constitutional remedies to fair trial breaches are preferably addressed at the other end of the proceedings, when all or some of the trial evidence was heard.[26]
Discussion and conclusion
[55] At this point, the evidence establishes Mr. Miller’s serious incapacity to communicate in the context of a judicial proceeding. The evidence also establishes threats to his health should he be forced to participate in judicial proceedings.
[71] However, as discussed, the more specific issue is whether standing at the doorstep of the regular criminal judicial process morphs Mr. Miller’s situation into one in which his Charter rights are continuingly breached, so that the urgency or some other compelling reason would make this Court better suited to seize itself of the issue at this point.
[72] The summary of the medical evidence in the defence’s application shows a serious degree of physical incapacity. Mr. Miller would be unfit to “engage in testimony, deposition or to travel”. Much discussion addressed the difficulties for Mr. Miller to attend court. Court attendance would also exacerbate his respiratory deficit.
[73] Other assessments discussed the fact of undergoing a criminal trial, although generically referring to “courtroom proceedings”. Moreover, because of the complications from his Parkinson disease, Mr. Miller suffers from speech impairment in that he cannot speak fluidly.
[74] More specifically, the stress of being examined in a judicial proceeding (in person or remotely)[27] would require frequent pauses. It is that context that brought Immer J. to observe that an effective oral examination may be fatal to Mr. Miller and that an alternative, in the form of a written examination, ought to be considered.
[75] Finally, the latest medical report also refers to “transportation” and to participation “in depositions or testimony”.
[76] Mr. Miller’s condition is not to be minimized. However, at this point, the medical evidence describes the consequences of criminal proceedings rather dealing with the merits of the allegations. As such, I do not consider that, on the evidence, it was factually established that Mr. Miller’s constitutional rights would be infringed by being charged with criminal offences and/or by being about to be arraigned.
[77] As noted by the defence, many procedural steps must be achieved before reaching the point of debating the merits or other pretrial issues stemming from the investigation or the prosecution, all within the Jordan framework (reference omitted).
[78] These steps, being either the arraignment or the following pro forma appearances, could be achieved without the need for Mr. Miller to physically appear. Later in the process, other arrangements could be envisaged, obviously including remote appearance or, absent consent, an exception to his attendance under the Criminal Code.
[79] This is not to say that these arrangements, or the delay before reaching the point where they would or would not be implemented, cannot result in the infringement of Mr. Miller’s constitutional rights. They may also include difficulties inherent to the solicitor-client relationship in the context of Mr. Miller’s condition, a hypothetical scenario evoked by the Crown in its written submissions as an example of exceptional circumstances.
[80] Be that as it may, at present, Mr. Miller is not in custody and is the subject of an undertaking. He is under medical care. The next procedural steps do not require him to appear in person, nor to oppose the charges.
[81] At this juncture, it cannot be said that any issue with Mr. Miller’s cognition, his fitness to stand trial, his ability to oppose the allegations made against him in a judicial forum, any related risks to his health, and any appropriate remedy, could not be properly addressed by the trial jurisdiction.
[82] As a result of all of the above, I do not conclude that it was established that a breach, if any, would command immediate consideration given the fact that the proceedings are underway, that measures could be put in place to hasten the judicial process and/or to relieve Mr. Miller from attending, or that the current stage of the proceedings otherwise reveals a compelling reason for this Court to intervene.
[83] Consequently, the basic rule must operate. The basic rule is that the trial court should be preferred in addressing the Charter issue and any ensuing remedy, and that the Superior Court should decline to exercise its legitimate jurisdiction.
[84] To say things again differently, I am not persuaded that there is either urgency to Mr. Miller’s claim in terms of the interests of justice, or that this Court is “substantially better suited to deal with the matter”.
[85] Naturally, things may evolve. In an unqualified future, Mr. Miller’s condition may raise some specifically urgent issues or interfere with his fair trial rights in ways that could bring the Superior Court to then intervene by virtue of its fundamental role and inherent power to enforce individual rights.
[86] At this point however, the logical and fair conclusion is that I must decline jurisdiction and defer the matter to the trial court.
