R. v. Jobb (C.V.)

• Jurisdiction: Saskatchewan
• Court: Court of Appeal (Saskatchewan)
• Judge: Richards, Smith and Hunter, JJ.A.
• Citation: (2008), 314 Sask.R. 236 (CA),2008 SKCA 156
• Date: 03 December 2008

R. v. Jobb (C.V.) (2008), 314 Sask.R. 236 (CA);

    435 W.A.C. 236

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. DE.042

Her Majesty The Queen (appellant) v. Christopher Vern Jobb

(1445; 2008 SKCA 156)

Indexed As: R. v. Jobb (C.V.)

Saskatchewan Court of Appeal

Richards, Smith and Hunter, JJ.A.

December 3, 2008.

Summary:

At issue was whether the accused, charged with 27 offences, was unfit to stand trial on account of mental disorder as defined under s. 2 of the Criminal Code.

The Saskatchewan Provincial Court, in a judgment reported (2007), 305 Sask.R. 230, ruled that the accused was unfit to stand trial. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal, set aside the verdict of unfitness to stand trial, and ordered a new trial.

Criminal Law - Topic 92.3

Mental disorder - General - Preliminary trial of issue of fitness - At issue was whether an accused was unfit to stand trial on account of mental disorder - The 21 year old accused suffered from mild mental retardation, Fetal Alcohol Spectrum Disorder and Attention Deficit Disorder, which collectively reduced his cognitive abilities, including his ability to comprehend and pay attention - He was easily distracted - The trial judge found the accused unfit to stand trial, because, inter alia, he was "unable to comprehend the course of the proceedings so as to assist his counsel in making a proper defence. Specifically, he is not able to communicate with his counsel regarding the facts of his charges in such a way that counsel may prepare a defence, nor can he participate in a meaningful way or assist his counsel during the course of a trial or other proceedings so that his counsel may pursue a defence on his behalf. He does not have the ability to testify as to the facts of the charges against him given the challenges he faces with recollection, comprehension and attentiveness" - The Saskatchewan Court of Appeal allowed the Crown's appeal - The trial judge correctly recited the limited cognitive capacity test, but applied it too stringently and some of his fact findings were contrary to the evidence - The accused had not discharged the burden of proving, on a balance of probabilities, that he was unfit to stand trial - The limited cognitive capacity test respecting the accused's ability to communicate with counsel required only that the accused be capable of recounting the facts of the alleged crimes sufficiently to permit counsel to prepare a defence - The evidence established that he was capable of doing so - The test did not require analytic ability, the need of the accused to appreciate his own best interests, or an ability to give counsel on-going instructions in response to the "dynamic process of the court proceedings" - Applying the proper test, the accused clearly had the capacity to instruct counsel.

Criminal Law - Topic 107

Mental disorder - Insanity, automatism, etc. - Evidence (incl. burden of proof) - [See Criminal Law - Topic 92.3 ].

Criminal Law - Topic 109

Mental disorder - Insanity, automatism, etc. - Insanity - Preliminary issue respecting the ability of the accused to conduct his defence - [See Criminal Law - Topic 92.3 ].

Cases Noticed:

R. v. L.S.C. (2003), 327 A.R. 262; 296 W.A.C. 262; 13 C.R.(6th) 390; 2003 ABCA 105, refd to. [para. 20].

R. v. Taylor (D.R.M.) (1992), 59 O.A.C. 43; 77 C.C.C.(3d) 551 (C.A.), refd to. [para. 21].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 21].

R. v. Gorecki (No. 1) (1976), 32 C.C.C.(2d) 129 (Ont. C.A.), refd to. [para. 24].

R. v. Trecroce (1980), 55 C.C.C.(2d) 202 (Ont. C.A.), refd to. [para. 24].

R. v. Peepeetch (K.D.) (2003), 238 Sask.R. 14; 305 W.A.C. 14; 177 C.C.C.(3d) 77; 2003 SKCA 76, refd to. [para. 26].

R. v. Steele (1991), 36 Q.A.C. 47; 63 C.C.C.(3d) 149 (C.A.), refd to. [para. 39].

Counsel:

W. Dean Sinclair, for the Crown;

Brenda R. Freriks, for the respondent.

This appeal was heard on October 20, 2008, before Richards, Smith and Hunter, JJ.A., of the Saskatchewan Court of Appeal.

On December 3, 2008, Smith, J.A., delivered the following judgment for the Court of Appeal.