By: karol

karol — Sun, 26 Jul 2009 04:53:38 +0000

More on Dr. Rootenberg;
http://www.canlii.org/en/on/onsc/doc/2002/2002canlii4501/2002canlii4501.html

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

P. Tait and P. Colavecchia, for the Crown

- and -

PETER MORRISSEY

J.C. Fleming, for the Accused

Accused

HEARD: October 2,3 and 4, 2002

RULING ON ABUSE OF PROCESS APPLICATION

[35] It is in keeping with the principles of judicial neutrality that any fitness assessment carried out pursuant to a court order be done in a neutral and even-handed way, by an independent psychiatrist who is devoid of ties to the Crown or defence that might serve to influence his/her opinions. In this case, I find that in the assessment process carried out in 2002 there was a blurring of the line between a court ordered fitness assessment, and a psychiatric examination obtained at the request of the Crown for its use as a party to the proceeding. The following circumstances are of particular concern:

(a) Dr. Rootenberg addressed his report to Crown counsel, and began his report by thanking Crown counsel for asking him to do the assessment of Mr. Morrissey. While this may have been inadvertence on his part, it is curious given his experience as a forensic psychiatrist, the fact that he was sent a copy of the court Order, and the fact that he had addressed his 1999 report to the presiding judge. The suggestion that it was done through inadvertence was contradicted by his own evidence that he addresses his reports to whomever has asked him to see the individual.

(b) Dr. Rootenberg reported that he told Mr. Morrissey that his report would be forwarded to the Crown Attorney’s office, and possibly submitted to the court as well. This indicates a lack of appreciation of his true role, and suggests that he viewed himself as having been retained by the Crown to provide it with a report.

(c) Crown counsel told Dr. Rootenberg to forward the completed report to the Crown’s office for disclosure to the defence. No doubt this was done to facilitate dissemination of the report, but it may have reinforced the misapprehension that the report was being prepared for the Crown. It would have been better had the report gone directly to the court, with copies provided for the court to release to Crown and defence counsel.

(d) The arrangement that Dr. Rootenberg would be paid by the Crown is, I accept, one that was made with good intentions on the part of the Crown. However, the fact that the defence was not told of this, that it apparently was not raised with MacDougall J. for his consideration at the time that he made the Order, and that no written policy exists in the Crown Attorney’s office to govern payment agreements, contributes to an appearance of bias. It is commendable that the Crown has assumed responsibility for payment of out-of-custody assessments, including this one, but it must be remembered that the Crown is a party to any proceedings that flow from the assessment. In an ideal world, the local Crown Attorney’s office should not be negotiating payment of the court-ordered assessor’s fees, but if this is the only means by which assessments can be carried out expeditiously, then the arrangements must be public and transparent. There should be a policy that is committed to writing, and defence counsel and the court should be advised on the record, or at least in writing, of any payment agreement that applies in a particular case.

(e) In the context of a court ordered fitness assessment, Dr. Rootenberg should not have been asked by Crown counsel, without the knowledge of the judge who made the Order or defence counsel, to provide advice about what evidence might assist the jury on the fitness hearing. He should not have been asked to assess the voluntariness of Mr. Morrissey’s statement to the police, given that this issue does not bear on the fitness assessment, and will be the subject of a pre-trial motion only if Mr. Morrissey is found fit. I accept that Crown counsel did not make these requests deliberately to subvert the fitness assessment, and may have been influenced by the content of Dr. Goger’s report. Nonetheless these requests should not have been made by the Crown. Dr. Rootenberg conceded that he had never before in the context of a fitness assessment been asked to express an opinion about the voluntariness of a videotaped statement, yet he was prepared to do so at the Crown’s request. He also was prepared to meet with Mr. Morrissey again, for a reason other than the fitness assessment, and tried to arrange this with Mr. Morrissey directly. It is troubling that after submitting his fitness report, and the day before he was to meet with the Crown, he viewed the videotape and made notes. This underscores that his review of the videotape did not bear on the fitness issue. Further, it suggests that he viewed himself as a resource for the Crown, notwithstanding the Order of MacDougall J.

[36] I do find that there was an element of unfairness in the manner in which the fitness assessment conducted by Dr. Rootenberg in 2002 was approached by the Crown and carried out. The neutral and independent character of the court ordered assessment was compromised by an appearance that Dr. Rootenberg was working with and for the Crown. This results from his willingness to follow the Crown’s lead, without pausing to consider his role as a court appointed assessor. I am, however, unable to find that Crown counsel, or for that matter Dr. Rootenberg, acted out of improper motive, bad faith, or in such a way that the conscience of the community is violated. Rather, I find that Crown counsel, honestly believing that certain actions and requests would expedite the assessment and any subsequent fitness hearing, and assist the prosecution in making decisions about the evidence on which it should rely in this difficult case, did not have proper regard for the character of the assessment process as one that was under the control of the court, not the parties or any one of them. I find that the conduct of the prosecution amounts to bad judgment and precipitous action, but does not fall to the level that the Supreme Court of Canada has said warrants a finding of abuse of process.

[37] In the event that I am wrong about this, and an abuse of process does exist such that s. 7 has been violated, I would have granted the remedy requested under s. 24(1) of the Charter, namely the exclusion of the evidence of Dr. Rootenberg. There is authority for the proposition that under s. 24(1), a judge may exclude evidence that was not obtained in violation of a Charter right, but the use of which would render the trial unfair: see R. v. White 1999 CanLII 689 (S.C.C.), (1999), 24 C.R. (5th) 201 (S.C.C.), and also Stuart, Charter Justice in Canada (3rd ed.) at pages 456 to 458.

Inherent Jurisdiction to Control Proceedings

[38] Quite apart from any powers under the Charter, a superior court has inherent jurisdiction to control its own process: see R. v. Hajian reflex, (1995), 104 C.C.C. (3d) 562 (Que. Sup. Ct.). It was pointed out at page 573 of that decision that this is a very broad discretionary power, which may be invoked in a variety of circumstances and may be exercised in different ways. For example, in R. v. Brown, [1996] O.J. No. 5319 (Ont. Gen. Div.) it was stated that a court could invoke this power to remove counsel from the record, where it was necessary to ensure the appearance of fairness and integrity in the trial and to otherwise maintain the public trust or confidence in the administration of justice.

[39] As I stated earlier, I have found that because of the manner in which the 2002 assessment was approached by the Crown and carried out by Dr. Rootenberg, the neutral and independent character of that assessment, which took place only because it was ordered by a judge of this court, was compromised. The suggestion of abuse of a court Order cannot be lightly dismissed, even where the prosecution was not motivated by bad faith. After careful consideration of all of the circumstances, including the evidence and the submissions of counsel, and the role that fitness assessments and inquiries play in maintaining the dignity of the trial process, I have concluded that this is a case in which I should resort to my discretionary power in order to ensure the appearance of fairness and integrity of the proceedings and to otherwise maintain the public trust or confidence in the administration of justice.

[40] As an exercise of the court’s power to control its own process, I order that neither the content nor the results of the assessment conducted by Dr. Rootenberg in 2002 pursuant to the Order of MacDougall J. are to be presented in evidence to the jury that hears the fitness issue. I am prepared to order, if the Crown requests and subject to hearing from the defence, that a fresh assessment be carried out by a psychiatrist other than Dr. Rootenberg or Dr. Gojer. Such assessment will be limited to the issue of Mr. Morrissey’s fitness, and is not to include consideration of the other issues that were put to Dr. Rootenberg. A report is to be prepared and is to be addressed and submitted to me, along with copies for Crown and defence counsel. I will hear submissions from counsel about who should be appointed to conduct the assessment, what materials should go to the assessor, who will be responsible for communicating with him/her, how payment for the assessment is to be arranged, and any other matters that counsel wish to raise. It should be clear at all times that this is a fitness assessment, ordered by a judge of the court pursuant to Part XX.1 of the Criminal Code.

___________________________

Justice M. Fuerst

Released: October 10, 2002