A three-member panel of the Alberta Court of Appeal has upheld a decision to stay sexual assault charges against a central Alberta man who is incapable of communicating in any meaningful way. The court agreed with Justice Debra Yungwirth that prosecuting Kendal Longclaws would violate his Charter right to a fair trial because he could not have proceedings interpreted for him.
Background of the accused
Longclaws, now 34, is deaf since birth and cannot speak, read, or write. He communicates with his parents and relatives using a mix of improvised hand signals, facial expressions, and simple vocalizations. The appeal judges noted, “Mr. Longclaws is deaf and cannot speak, read, or write. He does not communicate in a recognized sign language.”
He faced six counts of sexual interference and two of sexual assault involving three complainants. The charges involving two complainants allegedly occurred between Feb. 1, 2012, and Sept. 7, 2016, and against a third complainant between March 1 and 30, 2021. The appeal judges described these as “serious charges of sexual violence against children.”
Crown argument and defence response
Crown lawyer Matthew Griener argued that Yungwirth erred by not granting a prosecution application to have Longclaws assessed for fitness to stand trial before considering whether a stay requested by defence lawyer Kenneth Sockett was appropriate. “The Crown submits that an accused person who is unable to communicate may also suffer from a mental disorder which would support ordering a fitness assessment before determining whether a stay should issue,” the appeal judges said.
Defence counsel countered that there was no evidence Longclaws suffers from a mental disorder, and in any event, he cannot participate in a fitness assessment because he cannot communicate. The appeal judges noted, “Defence counsel does not take issue with this assertion; rather, he argues that it simply does not matter in this case as there is no evidence Mr. Longclaws suffers from a mental disorder, and in any event, he cannot participate in a fitness assessment because he cannot communicate.”
Appeal court decision
The appeal judges said Yungwirth's decision to decline a fitness assessment warranted deference. “The trial judge found there was ‘no evidence of a mental illness or psychiatric disorder that would constitute a mental disorder as contemplated by the Criminal Code,'” they said. “In reviewing the decision to enter a stay, an appellate court should only intervene if a trial judge ‘misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is ‘so clearly wrong as to amount to an injustice.'”
Implications of unfitness finding
The appeal court noted that a finding of unfitness to stand trial would remove Longclaws from the criminal justice system and place him under the power of the Alberta Review Board, which could potentially make him subject to indefinite hospital detention. “An accused person found unfit to stand trial may face significant deprivations of personal liberty without ever having been found guilty of an offence,” they wrote.
