Time Versus Evidence: Do Time Restrictions on NCRDM Applications Change Expert Witness Decisions?

Author: Anonymous

In R. v Landrick [2022] BCCA 181, the appeal hinges on new expert evidence with the application of a “Not Criminally Responsible due to Mental Disability” (NCRMD) application. While an application for an NCRMD assessment is generally used as a defence during an original trial, there are instances where it can be used on appeal. The explanation given by the appeal Judge in this case calls attention to how limited time to receive an NCRMD assessment can impact expert witnesses and their evidence, leading to injustice in our justice system.

Background:

Mr. Landrick is the appellant in this matter. He is appealing a previous decision that had him charged with two counts of second-degree murder for the deaths of Ms. McInnes and Mr. Croker, who lived in the same apartment building as Mr. Landrick^[1].

Within Mr. Landrick’s testimony, he stated that he believed he had been drugged by Ms. McInnes when having a drink with her in her apartment.^[2] He further believed that he had been sexually assaulted by Mr. Croker while he was drugged^[3]. Mr. Landrick stated the reasons for these beliefs, including that multiple items within his apartment were not in their usual places. Further, Mr. Landrick argued that there were new items in his apartment.^[4] The Crown was concerned by Mr. Landrick’s testimony and was the first to raise the possibility of an NCRMD application due to the “disturbing nature” and lack of evidence to corroborate the testimony.^[5] However, no NCRMD analysis was completed at this time, and Mr. Landrick was found guilty by a jury on both counts.^[6]

It was after this original verdict that Mr. Landrick’s defence counsel raised to the court the defence of NCRMD. There was a request for a 60-day time period to obtain a private assessment under section 672.11 (b) of the Criminal Code. This section of the code would determine if the accused was suffering from a mental disorder that would exempt them from criminal responsibility.^[7]

The Judge in the original trial only granted a 30-day period for this assessment to be completed.^[8] Dr. Kolchak was tasked with carrying out the assessment and found that while Mr. Landrick was possibly suffering from symptoms of psychosis, he could not conclude whether or not the act was morally wrong.^[9] This meant that an NCRMD defence could not be established, despite the court’s acceptance that Mr. Landrick’s belief that he had been drugged and assaulted was a part of delusions that he was suffering from. Because of this, Mr. Landrick had to attempt another NCRMD analysis to present as new evidence to apply for an appeal of the trial decision.

In the acquisition of new evidence, the appellant found two forensic psychiatrists, Dr. Lacroix and Dr. Lohrasbe. They conducted separate assessments, and both had access to Dr. Kolchak’s original report.^[10] In these second assessments, it was found that Mr. Landrick was suffering from psychotic symptoms from delusional disorder, and that he would have had this illness at the time of the offence and at the time of their assessments.^[11]

Issues:

There were two main issues the appellant Judge considered when making their decision. The first issue was whether the verdicts resulted in a miscarriage of justice in light of new evidence.^[12] The second issue was whether the judge erred in setting a strict time limit for completion of an NCRMD assessment, effectively prohibiting the defence from retaining their own expert.^[13]

To make a decision on the first issue, the Judge looked at the Palmer test from Palmer v The Queen [1970], which sets the standards for admitting new evidence.^[14] The steps to be fulfilled are due diligence, the relevance of the evidence to a decisive or potentially decisive issue in the trial, if the evidence is credible, and whether it can reasonably affect the result of the trial.^[15]

The appeal was requested, stating that the conviction is a miscarriage of justice under s. 696 (1) (a) (iii) of the Criminal Code, which states that “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 not knowing it was wrong.” The Crown conceded that the appellant, on a balance of probabilities, had a mental disorder that matched that section of the criminal code. The Judge found that the new evidence meets the Palmer test for admissibility and would affect the results when weighed together with other evidence that had been addressed at trial.^[16]

The appellant Judge did not address whether or not the original trial Judge erred in setting the 30 limit and stated that it would be preferable for an accused to obtain an assessment prior and hold it pending the decision of the jury to proceed to an NCR hearing.

Reflection and Analysis:

It is the appeal Judge’s decision to not place emphasis on the strict time limit, as they had already established the need for a retrial based on the issue of accepting the NCRMD assessment as new evidence. However, I believe that the original trial Judge’s decision to limit the timeframe led to the faultiness of the original expert witness’s report.

First, for an expert witness to be used in a case, they must be impartial, independent and unbiased as is set out in White Burgess.^[17] The appellant Judge did not need to go into an analysis of Dr. Kolchak, as there was new evidence from Dr. Lacroix and Dr. Lohrasbe. In this reflection, the assumption is that both Doctors were found to be reliable expert witnesses for the Judge to make this decision.

However, I have brought up the test for expert witness reliability for one main reason. To question the time limit placed. In the area of mental health and psychology, there must also be ample time and the proper resources, and there were obvious delays in Mr. Landrick’s ability to receive an assessment.^[18] This could have played a role in Dr. Kolchak not receiving the same resources that Dr. Lacroix and Dr. Lohrasbe received later on. He did not receive the full court transcript,^[19] which could have led to a lack of sufficient information about the case to provide an accurate assessment. On top of not having enough information, the information provided could lead to bias on Dr. Kolchak's part.

The decision to limit the time frame was to prevent the lengthening of the original trial and not have the jury be dispersed for so long. However, it seems counterintuitive to rush an important aspect of a trial, which in this instance led to this appeal and the call for a retrial. I think it is important to add here that the appellant had passed away before the chance for the retrial to take place.^[20] However, if the retrial had occurred, it would have taken more time and resources for the court system to process. Both the Crown and the Judges throughout this trial all agreed that the accused should have provided the assessment prior to the decision being made in the original case to prevent this.^[21] While I agree that Mr. Landrick should have sought the assessment sooner, he is not the only one to do this, and if he were, should that mean he should be incarcerated while requiring serious mental health supports? What about those who cannot afford a defence counsel that could provide their own expert witness? Would they be subject to an expert witness who has been subject to bias?

Would having experts hired to assess the mental state of an accused prior to the trial circumvent the issue of experts hired by the Crown feeling inclined to side with the Crown instead of giving an impartial and unbiased opinion? If they are simply to look at the individual, or to take part in the trial to see how the accused presents themselves. This can affect the evidence that is being presented, and affect the time of the case.

Further evidence in Manitoba shows that high numbers of incarcerated individuals have mental health issues.^[22] This does not mean that everyone who has a mental health diagnosis qualifies as not criminally responsible. However, the high numbers are startling and further highlight that mental health is underutilized as evidence. This is not to say those with mental health diagnoses are dangerous. In fact, it seems that it is the opposite, according to the Canadian Mental Health Association, those who are found NCRMD have lower rates of recidivism.^[23] This fact could be based on the mental health care that the accused receive when found not criminally responsible, which could be beneficial to those who have been incarcerated.

Conclusion:

Taking sufficient time to assess the mental health of an accused could be significant in allowing more individuals to receive appropriate mental health supports and in enabling expert witnesses to provide assessments free from information bias and the pressure of reduced time. In the case of R. v Landrick, the new expert witness evidence shows that something was missed in the original trial evidence and that Mr. Landrick could have continued his incarceration without proper mental health supports and that there needs to be changes to the justice system regarding psychological evidence.

Endnotes:

^[1] R. v. Landrick, [2022] BCCA 181 at summary.

^[2] Ibid at 4.

^[3] Ibid.

^[4] Ibid.

^[5] Ibid at 5.

^[6] Ibid at 6.

^[7] Ibid at 6.

^[8] Ibid at 7.

^[9] Ibid at 9.

^[10] Ibid at 12.

^[11] Ibid at 13.

^[12] Ibid at 14.

^[13] Ibid.

^[14] Palmer v The Queen, [1980] 1 SCR 759.

^[15] Supra, note 1 at 15.

^[16] Ibid at 42.

^[17] White Burgess Langille Inman v Abbott and Haliburton Co, [2015] SCC 23.

^[18] Supra, note 1 at 8.

^[19] Ibid at 12.

^[20] Ibid at 48.

^[21] Ibid at 46.

^[22] Mental Health Commission of Canada, The Mental Health Needs of

Justice-Involved Persons: A Rapid Scoping Review of the Literature (Ottawa, Mental Health Commission of Canada, 2020) At page i. https://www.mentalhealthcommission.ca/wp-content/uploads/drupal/2021-01/Justice_Scoping_Review_eng.pdf

^[23] Health Commission of Canada, “Fact Sheet About The Not Criminally Responsible Due to a Mental Disorder (NCRMD) Population in Canada” (Revised 24 April, 2013) at 2, online (Pdf): https://www.mentalhealthcommission.ca/wp-content/uploads/drupal/MHLaw_NCRMD_Fact_Sheet_FINAL_ENG_0.pdf.