R. v. Muschke, 1997 CanLII 838 (BC SC)

Date: 19971128
Docket: 6894
Registry: Nelson
1997 CanLII 838 (BC SC)

IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF THE DETENTION OF KLAUS MUSCHKE

AND IN THE MATTER OF SECTIONS 515, 672.11 AND 672.12
OF THE CRIMINAL CODE OF CANADA
BETWEEN:
KLAUS MUSCHKE
PETITIONER
AND:
HER MAJESTY THE QUEEN and the
HONOURABLE JUDGE R.G. FABBRO,
A JUDGE OF THE PROVINCIAL COURT
OF BRITISH COLUMBIA
RESPONDENTS
REASONS FOR JUDGMENT

OF THE
HONOURABLE MR. JUSTICE PITFIELD
Counsel for the Petitioner: Blair F. Suffredine, Q.C.
Counsel for the Respondents: Paul Dohm

Date and Place of Hearing: August 13, 1997
Nelson, B.C.
Muschke v. HMTQ et al Page: 2
[1] This application for judicial review came on for

hearing at Nelson on August 13, 1997. The applicant sought to set

aside an order of the respondent provincial court judge, (the
"judge"), that he be detained in custody for a period of thirty

days for the purpose of assessing whether, at the time of the
commission of offences alleged against him, he was suffering from
a mental disorder so as to be exempt from criminal responsibility
by virtue of s. 16(1) of the Criminal Code.
[2] No transcript of the proceedings to which the review

pertains was available at the time of the hearing. Rather than
dismiss the application, I adjourned the matter in order that the
transcript could be produced.
[3] I provided counsel an opportunity to make supplementary
written submissions restricted to matters arising from their

examination of the transcript. None was received within the time
provided for the purpose. Following upon my review of the

transcript, I asked counsel to address certain issues which had
not been canvassed before me. The resulting submissions were
provided to me through the registry on November 1, 1997 and I am
now in a position to rule with respect to the application.
[4] Counsel did not suggest that the matter is moot. Had
they done so, I would have exercised my discretion, having due
regard for the principles enunciated in Borowski v. Canada,
[1989] 1 S.C.R. 342 (S.C.C.), to rule upon the application in any

event.
[5] The subject matter of this application is important,

relating as it does to the scope of ss. 672.11 through 672.16 of
the Criminal Code, the practice to be followed in relation to
applications for such orders, and the propriety of the assessment

order made in the circumstances of this case. The relevant
background is the following.
[6] The applicant was arrested on June 19, 1997. On June

20th he was charged with the offence of unlawfully producing a
controlled substance, namely marijuana, and with the offence of
knowingly uttering a threat to his wife on or between August 1,

1996 and June 20, 1997. On June 23, 1997 he was charged with the
further offence of knowingly uttering a threat to cause death or
bodily harm to a dentist practising in Nelson, who was treating
the applicant's daughter on June 19th at the time of the alleged
threat.
[7] Upon his arrest, the applicant was admitted to Kootenay

Lake District Hospital. He was detained for a 72 hour assessment
period pursuant to s. 28(2) of the Mental Health Act, R.S.B.C.
1996, c. 288. He was transferred to the Trail Regional Hospital

for psychiatric assessment.

[8] On June 20, 1997 the applicant was remanded, by
consent, to June 23, 1997 for a judicial interim release hearing.

Due to time constraints and by consent, the hearing was adjourned
to June 24th.
[9] At the commencement of the June 24th hearing, the Crown

advised the judge of its application pursuant to s. 672.12(3) of
the Code for an order detaining the applicant for psychiatric
examination. There was no bail hearing as a result. At the

hearing Crown counsel tendered no affidavit or viva voce evidence.
Rather he, himself, reported the facts by which he claimed the

Crown's application should be decided.
[10] Counsel reported that the applicant's common law

spouse, Elizabeth Binder-Muschke, and her sister attended at the
Salmo R.C.M.P. detachment on June 19th. He reported that she

appeared visibly upset and told the police that she had been under
threats and intimidation from the applicant for a period of three
years. She said "he has threatened me constantly - he beats me
with his tongue - I believe if I had ever defended myself against
him I would be dead by now".
[11] Counsel reported that the applicant and his family

lived in a remote country location where Elizabeth felt captive,

felt she endured mental torture and believed that the applicant

was a danger to the life of their children, herself, as well as
her family, and that she was being used as a front for his
illness.
[12] Counsel advised that the foregoing descriptions formed

the basis of the charge of uttering a threat to cause death or
bodily harm to Elizabeth.
[13] Counsel reported that Elizabeth's sister wanted the

police to intervene and arrest the applicant under the Mental
Health Act when the applicant and his daughter attended at a
dentist's office in Nelson on June 19th. Counsel reported that

the police did not want to arrest the applicant until they found
grounds. The opportunity arose when the police received a call in

the afternoon of June 19th advising that the applicant was causing
a disturbance at the dentist's office where his daughter was being

treated.
[14] The police attended at the dentist's office and

arrested the applicant under the Mental Health Act. Counsel
reported to the judge that "the police describe Muschke as

coercive, delusional and paranoid and obviously in need of a
mental health assessment and committal".
[15] Counsel advised the judge that a statement obtained

from the dentist indicated that the applicant pulled his daughter

from the dentist's chair and yelled and screamed in the office.
The dentist alleged that the applicant said "you [the dentist]
tortured my daughter. I've killed before. I have a smile on my
face when I do it. I'm sick and tired of this country. I've got
to get out of here."
[16] Counsel further reported that in 1985 the applicant had
been admitted to and released from Riverview Hospital in

Coquitlam because some people had been afraid of him. He was
also detained under the Mental Health Act in 1991 by two doctors
who then described the applicant as acutely psychotic, clinically

paranoid, and having delusions of grandeur and auditory
hallucinations.
[17] The only documentary evidence tendered by Counsel was a
letter from Dr. Naicker, the psychiatrist who examined the

applicant on June 20th. He wrote to Crown Counsel as follows:
[Muschke] was admitted to the Daly Pavilion on the

19th of June 1997. I saw him today and have serious
concerns about his current situation. It is possible
that he is suffering from a serious psychotic
disorder and that as a result he represents a threat
to others including his family members. We have only
sketchy details regarding his past history and his
present circumstances. I have reason to believe that
there would be a significant risk [to] harm others
should he be returned to the community.
I therefore recommend that he be sent for a forensic

psychiatric assessment to clarify the presence or
absence of a psychiatric disorder as well as his

ability to answer to the legal charges that I believe
are pending.
[18] Counsel advised the judge of other statements from the

complainant's siblings describing the applicant's unusual
attitudes. Finally, Counsel reported that the R.C.M.P. alleged
they found sixty marijuana plants and two rifles upon their
inspection of the applicant's home in the remote area where he and
his family reside.
[19] The order sought by the Crown was granted. The
applicant was detained in custody in Kamloops, British Columbia

without psychiatric examination until July 21, 1997.
[20] With the thirty day detention period about to expire,

the respondent Crown applied to the judge for an extension
stating that the application was made pursuant to s. 672.14(3) of

the Code. A thirty day extension was granted.
[21] At the hearing of this application on August 13, 1997

the psychiatric examination had not been completed but was in
process and the second period of detention was about to end.
Reference was made during the hearing to the fact that the
applicant was being medicated in the course of the assessment.
There was, however, no admissible evidence with respect to the

progress of the assessment or the manner in which it was being

conducted at the time of the hearing. In any event, the conduct
of the examiners, about whom allegations of treatment (which s.

672.19 of the Code appears to proscribe during assessment) were
made, is not relevant for purposes of this application. It is the

propriety of the initial detention order and the extension order
which are in issue.
[22] The relevant provisions of the Code are the following:
672.11 A court having jurisdiction over an accused

in respect of an offence may order an
assessment of the mental condition of the
accused, if it has reasonable grounds to
believe that such evidence is necessary to
determine
(a) whether the accused is unfit to stand

trial;
(b) whether the accused was, at the time
of the commission of the alleged
offence, suffering from a mental
disorder so as to be exempt from
criminal responsibility by virtue of
subsection 16(1).
672.12(1) The court may make an assessment order at
any stage of proceedings against the
accused of its own motion, on application
of the accused or, subject to subsections
(2) and (3), on application of the
prosecutor,
(2) Where the prosecutor applies for an
assessment in order to determine whether
the accused is unfit to stand trial for an
offence that is prosecuted by way of
summary conviction, the court may only
order the assessment if

(a) the accused raised the issue of

fitness; or
(b) the prosecutor satisfies the court
that there are reasonable grounds to
doubt that the accused is fit to stand
trial.
(3) Where the prosecutor applies for an
assessment in order to determine whether
the accused was suffering from a mental
disorder at the time of the offence so as
to be exempt from criminal responsibility,
the court may only order the assessment if
(a) the accused puts his or her mental
capacity for criminal intent into
issue; or
(b) the prosecutor satisfies the court

that there are reasonable grounds to
doubt that the accused is criminally
responsible for the alleged offence,
on account of mental disorder.
672.16(1) Subject to subsection (3), an accused shall

not be detained in custody pursuant to an
assessment order unless
(a) the court is satisfied that on the
evidence custody is necessary to
assess the accused, or that on the
evidence of a medical practitioner
custody is desirable to assess the
accused and the accused consents to
custody;
(b) custody of the accused is required in
respect of any other matter or by
virtue of any other provision of this
Act; or
(c) the prosecutor, having been given a

reasonable opportunity to do so, shows
that detention of the accused in
custody is justified on either of the
grounds set out in subsection 515(10).

515(10) For the purposes of this section, the
detention of an accused in custody is
justified only on either of the following
grounds:
(a) on the primary ground that his
detention is necessary to ensure his
attendance in court in order to be
dealt with according to law; and
(b) on the secondary ground (the
applicability of which shall be
determined only in the event that and
after it is determined that his
detention is not justified on the
primary ground referred to in
paragraph (a)) that his detention is
necessary in the public interest or
for the protection or safety of the
public, having regard to all the
circumstances including any
substantial likelihood that the
accused will, if he is released from
custody, commit a criminal offence or
interfere with the administration of
justice.
[23] On the face of it, the assessment scheme appears to be
straight-forward. Pursuant to s. 672.11 the court, on its own

initiative, may order an assessment of mental condition if it has
reasonable grounds to believe such evidence is necessary to
determine fitness to stand trial, a concept defined by s. 2 of the

Code, or, as in this case, to determine the presence of a mental
condition at the time of the alleged offence which would exempt

the accused from criminal responsibility by virtue of s. 16(1) of
the Code.
[24] The court may order an assessment of mental condition

on application by the Crown under s. 672.12(3)(b) if the

prosecutor satisfies the court there are reasonable grounds to
doubt that the accused is criminally responsible for the alleged
offence, on account of mental disorder.
[25] An in-custody as opposed to outpatient assessment is

only permitted if one of the conditions in s. 672.16(1) is met.
[26] The principal issue in this case is the manner in which

the prosecutor was to satisfy the judge there were reasonable
grounds to doubt the applicant's criminal responsibility.
[27] A secondary issue is whether an in-custody assessment
should have been ordered if an assessment order was appropriate

at all.
[28] At the hearing on June 24th, the applicant's counsel

advised the judge as follows:
...we don't care much whether you make an order, but

we say that there's no basis for ordering it to be an
in custody assessment. There's a presumption against
it as there is against keeping him in custody on the
bail status.
[29] Counsel for the applicant based his claim that the
assessment order should be set aside on the judge's omission to

require the Crown to adduce evidence in support of its

application either by testimony or affidavit when the Crown had
been advised by counsel for the applicant that the facts alleged
by the Crown were in dispute. Counsel relied on the case of R.
v. Woo, (May 2, 1994), Vancouver CC940363 (B.C.S.C.), a decision
of Mr. Justice Fraser decided in the context of a bail

application.
[30] Upon hearing from counsel in relation to the need for

evidence, the judge ruled that while the Crown could proceed and
"put their case in a few oral submissions", if he determined

there was some major area of dispute, then he would consider
whether the Crown ought to be calling witnesses. The judge acted
upon the statements of Crown counsel and the letter from Dr.
Naicker. He had no affidavit evidence before him and heard no
testimony.
[31] My review of the transcript identifies no matter in

respect of which the applicant denied the circumstances as they
were related to the judge by the Crown. Counsel did dispute the
inferences which were to be drawn from those facts. Counsel's
principal objection was that a recital of what were referred to
by the Crown as facts was insufficient for purposes of ss. 672.11
and 672.12, affidavit or viva voce evidence was required, and Dr.
Naicker's opinion disclosed no factual basis for the opinion set

forth in the letter.

[32] Counsel for the respondents contends that practices
similar to those which prevail in show cause hearings in judicial
interim release proceedings should apply to assessment
applications. The practice in show cause situations,
notwithstanding the decisions of R. v. Woo, supra and R. v.
Brown, (9 May 1995), Vancouver CC950545 (B.C.S.C.) is that the
statements of counsel constitute evidence upon which a decision

with respect to release may be made in conformity with s. 518 of
the Code.
[33] The Woo decision is authority for the proposition that,
at least where an accused is required to show cause in respect of
certain kinds of offences why he should not be detained, evidence

sufficient for the purposes of s. 518 may be presented to the
court by means of statements of counsel where counsel agree as to

matters of fact.
[34] Where there is controversy or contradiction with

respect of matters of fact, evidence by way of affidavit or
testimony, either of which may include hearsay, must be tendered.
[35] This practical approach to bail applications is

warranted in the context of ss. 518(1)(a) and (e) of the Code
relating to bail proceedings which provide as follows:

(a) the justice may, subject to paragraph (b), make
such inquiries, on oath or otherwise, of and
concerning the accused as he considers
desirable;
(e) the justice may receive and base his decision on
evidence considered credible or trustworthy by
him in the circumstances of each case
[36] While it is reasonable to conclude that except in cases

of controversy and contradiction with respect to facts,
efficiency and expediency in the judicial interim release context
should permit a low threshold of proof, the same cannot be said

of applications for orders in relation to the assessment of
mental capacity where the purpose is to determine mental
competency at the time of the commission of the alleged offence.
[37] Reasonable and probable grounds for belief in the
context of the allegation of an offence against an accused have

been described as an honest belief in the guilt of the accused
based upon a full conviction, founded on reasonable grounds, of
the existence of a state of circumstances, which, assuming them
to be true, would reasonably lead any ordinarily prudent and
cautious person, placed in the position of the accuser, to the
conclusion that the person charged was probably guilty of the
crime imputed. The test contains both a subjective and objective
element. There must be both actual belief on the part of the

prosecutor and that belief must be reasonable in the

circumstances. The existence of reasonable and probable cause is
a matter for the judge as opposed to the jury (see Nelles v.
Ontario, [1989] 2 S.C.R. 170).
[38] The statements in Nelles are relevant in the context of
s. 672.11 providing that a judge must have reasonable grounds for
belief. The same phrase should apply, mutatis mutandis, to the

phrase reasonable grounds to doubt as that phrase is used in s.
672.12(3)(b) of the Code.
[39] In the case of an application by the Crown for an order

for the assessment of mental condition the judge should act
judicially and substantially in accord with judicial-like rules

except to the extent that an intention to permit a departure
therefrom can be discerned from the Code itself.
[40] In the ordinary course, evidence on an application
before a court is provided by way of affidavit and, occasionally,

by oral testimony. Notwithstanding that the practice on
applications in criminal matters may be more flexible than that
in civil matters, I see no reason why reasonable grounds for
doubt, as required by s. 672.12, should be derived from the
statements of counsel alone without affidavit or viva voce
evidence and satisfactory medical opinion.

[41] The only reason to conclude otherwise is to promote the
principle of expediency. That is not a laudatory objective where

the mental health of an individual is in issue and the order will
require testing and assessment involving the participation of the
individual whether that participation is obtained voluntarily or
otherwise.
[42] Care must be taken to ensure that s. 672.12 of the

Code is not used as a substitute for other forms of process, such
as that contemplated by the Mental Health Act, which would
require a higher evidentiary standard than that urged by the

Crown in this case in order to commit an individual to assessment
to detect mental illness which in no sense approaches the level
required to absolve one of criminal responsibility.
[43] There must be, in any event, evidence before the judge
in order that he or she may be permitted to conclude that there
are reasonable grounds for doubt such that the Code's assessment
process can begin.
[44] Was there evidence before the judge by which he could

conclude that he had reasonable grounds to doubt mental capacity
such that an assessment was necessary for the purpose specified by
s. 672.12? Even if the evidence could consist of the

statements of counsel, I conclude there was not.

[45] The Crown provided the judge with a letter of opinion
from an examining psychiatrist. There is nothing in the letter
which suggests that the psychiatrist had concluded the applicant
suffered from a mental disorder of a severity which would absolve
him from criminal responsibility. The focus of the
psychiatrist's attention was the possibility of harm to others.
That is a matter which is relevant in the context of judicial

interim release and the determination of the need for custody in
the course of assessment. It is not the standard by which the
need for assessment is to be determined.
[46] While the disorders attributed to the applicant may
well be in need of treatment, there is nothing in the letter to

suggest that standing alone, they point to an inability to
understand the nature and consequences of one's actions or that

the actions were wrong as contemplated by s. 16 of the Code if
one is to be absolved of criminal responsibility.
[47] The other factor which might be construed as evidence

upon which the order to assess could have been based is the
statement by the applicant's counsel that the applicant did not
much care if an assessment order were made provided it was made on
an outpatient basis. The statement might have been construed

as an admission of the necessity of assessment. In the case of

R. v. Dobrotic, [1995] N.B.J. No. 222 (Q.L.), the New Brunswick
Court of Appeal concluded that even with the consent of the
accused to assessment, an order should not be made unless there

was sufficient evidence before the judge to provide reasonable
grounds to doubt the accused's criminal responsibility.
[48] Even if they could have been relied upon to establish

reasonable grounds for belief, the recitation of facts by counsel
disclosed unusual and quite possibly unacceptable conduct on the
part of the applicant but did not provide reasonable and probable
grounds for believing that the accused was incapable of
appreciating the nature and quality of his acts in the form of the
alleged threats or of knowing that his acts were wrong.
[49] In his reasons the judge stated the following:
There are opinions of delusion and paranoid conduct

from the police officers, people at the dentist's
office, in-laws. I don't accept their statements as
anything more than what appears to be very unusual,
bizarre conduct and conduct that is needing of an
assessment and this man, I think needs the help to
the extent that the criminal system can offer.
I haven't heard anything about medication and stuff,
but I'm satisfied specifically that on the material
that has been put before me, there is reasonable
grounds to believe that such evidence is necessary to
determine whether the accused is unfit to stand
trial. The doctor has raised that in his letter, and,
in this case, the presumption against custody, I'm

satisfied has been overcome by the Crown because I'm
satisfied on the evidence that custody is necessary

to assess the accused and I view the doctor's letter
as really saying that, but under subsection (c) of
672.16, I'm satisfied that the Crown has shown that
the accused ought to be detained and that his custody
is justified in that he presents himself as a danger
to the community and, specifically, his own family at
this time and I think there is a substantial
likelihood that he reoffend in this same bizarre and
unusual behaviour.
So, based on all I've heard today, I repeat again,
I'm going to direct that the accused be assessed in
custody, that he be sent to the Psychiatric Forensic
Institute in Vancouver for assessment with regard to
his fitness to stand trial and that a written report
be provided for the Court on or before his next
return to Court. I think the Crown was asking that
this matter come back to the Court on July the 21st
as a return date and I will order that if the
assessment is completed prior to that date that he
should be brought back sooner and the matter should
come before the Court sooner so that he can be dealt
with.
[50] There is no doubt the judge was well-meaning and

motivated by concern for the applicant. That notwithstanding,
the Code cannot be a substitute for other shortcomings in our
community with respect to the diagnosis and treatment of mental

illness. As I have previously stated, the doctor's letter did
not state that detention was necessary to assess mental capacity.
It did not suggest that the disorders of which the doctor spoke
were those which might absolve one of criminal responsibility.
Instead the letter focused on the danger which might be
associated with the release of the applicant. Any concern about
the safety of the public should have been addressed in the

context of an application for judicial interim release. The

Crown did not meet the test implied by s. 672.12 and the
assessment order was invalid.
[51] While the judge spoke of fitness to stand trial, the

matter was not in issue as the application was made by the
prosecutor pursuant to s. 672.12(3)(b) of the Code. Had fitness
been an issue, there was nothing before the judge, whether by
statements from counsel or otherwise, which would have justified

the formulation of a belief based on reasonable grounds that the
applicant, on account of mental disorder, was unable to
understand the nature or object of the proceedings in which he

was involved, understand the possible consequences of the
proceedings, or communicate with counsel. One or more of these
factors are necessary in order to formulate an opinion that one

is unfit to stand trial as the phrase is defined in s. 2 of the
Code.
[52] It follows that because the initial order was unlawful,
the extension was equally invalid. The application for the

extension was based upon s. 672.14, a provision of the Code which
had no application in the circumstances. That section permits
the judge to make an initial order detaining an accused for a

period of sixty days in the event of compelling circumstances.
Where, as here, a thirty day order was in existence and an

extension was sought, the relevant provision was s. 672.15 of the

Code. The error was not fatal, however, as the test in s. 672.15
is less stringent than that set forth in s. 672.14.
[53] Both the order and the extension are set aside.
"PITFIELD J."
PITFIELD J.
November 28, 1997

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R. v. Muschke, 1997 CanLII 838 (BC SC)

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Date: 19971128

1997 CanLII 838 (BC SC)

IN THE MATTER OF THE DETENTION OF KLAUS MUSCHKE

REASONS FOR JUDGMENT

HONOURABLE MR. JUSTICE PITFIELD

Counsel for the Petitioner: Blair F. Suffredine, Q.C.

Counsel for the Respondents: Paul Dohm

[1] This application for judicial review came on for

1997 CanLII 838 (BC SC)

"judge"), that he be detained in custody for a period of thirty

[2] No transcript of the proceedings to which the review

transcript could be produced.

[3] I provided counsel an opportunity to make supplementary

written submissions restricted to matters arising from their

provided for the purpose. Following upon my review of the

regard for the principles enunciated in Borowski v. Canada,

[1989] 1 S.C.R. 342 (S.C.C.), to rule upon the application in any

1997 CanLII 838 (BC SC)

[5] The subject matter of this application is important,

applications for such orders, and the propriety of the assessment

[6] The applicant was arrested on June 19, 1997. On June

knowingly uttering a threat to his wife on or between August 1,

[7] Upon his arrest, the applicant was admitted to Kootenay

1996, c. 288. He was transferred to the Trail Regional Hospital

for psychiatric assessment.

1997 CanLII 838 (BC SC)

consent, to June 23, 1997 for a judicial interim release hearing.

[9] At the commencement of the June 24th hearing, the Crown

the Code for an order detaining the applicant for psychiatric

examination. There was no bail hearing as a result. At the

Rather he, himself, reported the facts by which he claimed the

[10] Counsel reported that the applicant's common law

Salmo R.C.M.P. detachment on June 19th. He reported that she

[11] Counsel reported that the applicant and his family

lived in a remote country location where Elizabeth felt captive,

1997 CanLII 838 (BC SC)

[12] Counsel advised that the foregoing descriptions formed

[13] Counsel reported that Elizabeth's sister wanted the

Health Act when the applicant and his daughter attended at a

dentist's office in Nelson on June 19th. Counsel reported that

grounds. The opportunity arose when the police received a call in

a disturbance at the dentist's office where his daughter was being

[14] The police attended at the dentist's office and

reported to the judge that "the police describe Muschke as

[15] Counsel advised the judge that a statement obtained

1997 CanLII 838 (BC SC)

[16] Counsel further reported that in 1985 the applicant had

been admitted to and released from Riverview Hospital in

who then described the applicant as acutely psychotic, clinically

[17] The only documentary evidence tendered by Counsel was a

letter from Dr. Naicker, the psychiatrist who examined the

[Muschke] was admitted to the Daly Pavilion on the

I therefore recommend that he be sent for a forensic

1997 CanLII 838 (BC SC)

[18] Counsel advised the judge of other statements from the

his family reside.

[19] The order sought by the Crown was granted. The

applicant was detained in custody in Kamloops, British Columbia

[20] With the thirty day detention period about to expire,