SUPREME COURT OF NOVA SCOTIA Citation: R. v. Melvin, 2018 NSSC 176. James Bernard Melvin, Jr. LIBRARY HEADING

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1 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Melvin, 2018 NSSC 176 Date: Docket: CRH No Registry: Halifax Between: Her Majesty the Queen v. James Bernard Melvin, Jr. LIBRARY HEADING Judge: The Honourable Justice Peter P. Rosinski Heard: July 18, 2018, in Halifax, Nova Scotia Written Decision: July 23, 2018 Subject: Summary: Issues: Result: Section Criminal Code appointment of an expert to conduct a long-term offender/dangerous offender assessment Mr. Melvin was convicted October 5, 2017 of attempted murder and conspiracy to commit murder. The Crown is seeking to have him declared either a long-term offender or a dangerous offender pursuant to Section 753 and Criminal Code. The Crown has proposed an expert to conduct the underlying assessment of Mr. Melvin pursuant to Section 752.1, which will assist in determining whether a hearing is warranted and form the basis for the Crown s position at the hearing. Mr. Melvin challenges the proposed expert s suitability. (1) What are the appropriate considerations, and is the proposed expert suitable? The proposed expert is confirmed by the court to do the assessment. Discussion regarding what are the relevant considerations in making this finding. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

2 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Melvin, 2018 NSSC 176 Date: Docket: CRH No Registry: Halifax Between: Her Majesty the Queen v. James Bernard Melvin, Jr. Judge: Heard: Counsel: The Honourable Justice Peter P. Rosinski July 18, 2018, in Halifax, Nova Scotia Rick Woodburn and Sean McCarroll, for the Crown Pat Atherton and Michelle James for the Defence

3 Page 2 By the Court: Introduction [1] On October 5, 2017, Mr. Melvin was found guilty by a jury of the following two counts [on or about December 2, 2008 at or near Harrietsfield, Nova Scotia]: 1. That he did attempt to murder Terry Marriott Junior, contrary to Section 239 of the Criminal Code; 2. And further that he did conspire with Jason Hallett, an unindicted co-conspirator, to commit the murder of Terry Marriott Junior, contrary to Section 465 (1)(a) of the Criminal Code. [2] Initially the court set a sentencing date for January 3, By letter dated December 6, 2017, the Crown advised the court and counsel: Shortly after Mr. Melvin was found guilty of the attempted murder and conspiracy to commit murder we gave notice to the defence that we intend to seek a dangerous offender designation. We began the onerous task of collecting the materials from federal corrections, provincial institutions, medical records and various closed files. it will take several more months for federal corrections to gather and vet all the information on Mr. Melvin Our estimate is that we should be in a position in early March to satisfy the court that there are reasonable grounds to believe Mr. Melvin committed a serious personal injury offence and might be found to be a dangerous offender. The Section assessment [3] On June 21, 2018, the reasonable grounds hearing (pursuant to s Criminal Code) began. It concluded on July 18, [4] Records regarding Mr. Melvin from the Nova Scotia health Authority were entered as Application Exhibit No. 1. [5] Crown and Defence counsel agreed that they were both satisfied that the reasonable grounds threshold was met in the circumstances of Mr. Melvin. Their position is based on, and borne out by, Tab A attached to the Crown brief filed May 24, 2018, which is acknowledged to be an accurate history of criminal convictions of Mr. Melvin. [6] I also agreed that the reasonable grounds threshold was met.

4 Page 3 The dispute in the jurisprudence [7] I will briefly address later my opinion of the differing views in the jurisprudence about the degree of scrutiny a court is entitled to undertake of an expert who has been proposed. The jurisprudence is canvassed in cases such as: R. v. JV, 2015 ONCJ 766, per Paciocco J. (as he then was); and R. v. Wilson, 2018 ONSC 964. It is also useful to review a recent decision of our Court of Appeal: R. v. AH, 2018 NSCA 47, per MacDonald CJNS. [8] A dispute arose in relation to which expert should be appointed to perform the assessment for use as evidence in the concurrent applications pursuant to Sections 753 and Criminal Code. There are not many reported decisions regarding the considerations and legal principles that courts should consider in such circumstances. [9] The Crown proposed a psychiatrist from British Columbia. Mr. Melvin proposed local staff psychiatrists at the East Coast Forensic Hospital (ECFH). [10] The Crown has provisionally retained psychiatrist, Dr. Shabehram Lohrasbe, MBBS, FRCPC. 1 [11] They say he is available in the near future, willing, and in receipt of the relevant materials. [12] After the court raised a concern on June 21, that by appointing Dr. Lohrasbe, the Province of Nova Scotia would be responsible for the payment of his fees when there are qualified experts at the East Coast Forensic Hospital who could produce such an assessment at no extra cost, the Crown in its July 17, 2018 letter advised that it has agreed to pay the expenses and fees for Dr. Lohrasbe. [13] Mr. Melvin does not contest Dr. Lohrasbe s qualifications on paper, but his counsel remains of the view that it appears although he has assessed perhaps thousands of people and testified hundreds of times, only twice did his counsel find cases where he appeared for the defence. His concerns about Dr. Lohrasbe s impartiality are heightened given the Crown is directly retaining and compensating him in this case. Mr. Melvin therefore has a generalized concern that Dr. Lohrasbe 1 His CV was provided to the court, and counsel referenced his having completed many such assessments. A quick search of the jurisprudence reveals over 100 reported decisions involving his opinion evidence e.g. See R. v. Lonechild, 2017 SKQB 338, per Smith J., at para 33; and most recently R. v. McDonald, 2018 BCCA 42, at paras. 68, ; leave to appeal filed [2018] SCCA No. 106.

5 Page 4 would be perceived as not being impartial by a reasonable person fully apprised of all the circumstances. [14] I do not find this to be the case. [15] The Crown in their letter of July 17, 2018 set out the doctor s responses to this concern, which indicates that he has a reputation as an impartial assessor. As he noted in his response to the Crown s inquiries: Ever since the long-term offender option was added some 20 years ago, nearly all of the assessments I have done have been court-ordered. These make up the bulk of the 200 odd assessments I have done over the last 34 years. Over the past 15 years or so I have done many more assessments in other provinces than I have in BC (primarily Saskatchewan, but also Yukon and Manitoba and as you know a single dangerous offender/long-term offender assessment in Nova Scotia. 2 Here are some recent cases to put to your friend. In British Columbia: All court ordered dangerous/long-term offender assessments must go directly to forensic psychiatric services which then contracts out the assessment on a rotational basis to psychiatrists and psychologists who are on the list. In a typical year, I have two or three such assessments from forensic services. Occasionally I am asked to do a second opinion. In Saskatchewan: I was contacted mid-hearing by defence counsel Michael Nolin in December 2017 [sic] regarding his client Marc Potter, and asked to provide a second opinion. I completed a report and testified in March 2017 in Saskatoon. Most recently I am in the process of completing a report on an individual named Dennis Yew. Here is an extract from an I received on May 9 from Jennifer Schmidt, Senior Crown prosecutor in North Battleford Saskatchewan- Now, defence is objecting to Dr. Tomita, but says they would agree to have you assess Mr. Yew. So, forgive me for the short notice, but if the assessment application is granted on May 24, would you be able to do the assessment for Mr. Yew? Mr. Yew s counsel, Owen Griffiths, instructed his client to participate in an interview that I completed in Regina last week. 2 He was qualified to do the assessment by Provincial Court Judge William Digby in R. v. Christopher Terriak, Case No

6 Page 5 [16] Defence counsel had an opportunity to examine the CV and jurisprudential references to Dr. Lohrasbe. They did not wish further time to investigate this issue. [17] Within the terms of Section 752.1, Dr. Lohrasbe is qualified, willing and able to do the assessment. [18] Had Mr. Melvin been able to point out examples in the jurisprudence where Dr. Lohrasbe s opinions have not been accepted, or he has been shown to have a propensity toward prejudging assessments 3, the court may have had a basis for questioning Dr. Lohrasbe s suitability. [19] However, there is no cogent evidence from which it can reasonably be inferred that Dr. Lohrasbe would be perceived as not impartial by a reasonable person fully apprised of the circumstances. 4 [20] On the other hand, Mr. Melvin s counsel had made contact with the East Coast Forensic Hospital in Halifax, which has staff psychiatrists who are wellqualified to conduct such an assessment and who have testified for both Crown and Defence. The ECFH staff psychiatrists were anticipated to require longer than the time it may take Dr. Lohrasbe, however Mr. Melvin s counsel stated he is more concerned this gets done right, than fast. [21] After further consultation with the ECFH since our first appearance, it appears that Dr. Nielsen has advised Mr. Melvin s counsel that they are unable to 3 See for example in R. v. Wilson, 2018 ONSC 964, Justice Hackland s reasons at paras Some of the jurisprudence seems to suggest that in appropriate circumstances the court may be required to conduct a voir dire into the suitability of a proposed assessor. Presuming this to be correct, I would expect such cases to be rare. Moreover, I favour the view that, as this is a Crown application, they are presumptively entitled to propose the assessor. In Nova Scotia, the Crown is represented by the independent Public Prosecution Service of Nova Scotia. Its Crown attorneys, in contrast to other counsel, have special obligations to ensure that justice is done in criminal prosecutions. Logistically, this also makes sense since they will want to have their proposed assessor ready, able and willing to begin the assessment on short notice after the court hearing. The defendant is entitled to make submissions regarding that proposed assessor, but not to propose its own assessor, until the court has made a determination regarding the Crown s proposed assessor. After hearing the defendant s position regarding the suitability of the assessor, the court should focus its attention on considerations such as the qualifications and experience of the proposed assessor, as well as the location of the proposed assessment and other logistical matters, such as the availability of the assessor. It must be borne in mind that this process is part of the sentencing process. Section 720(1) of the Criminal Code reads: A court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed. That sentencings should be timely is reinforced by the presumptive 90 days allowance for preparation and filing of the assessor s report per s Criminal Code.

7 Page 6 do the assessment, at least within the foreseeable future. The report must be filed with the court within 30 days of the maximum 60 day assessment period. 5 Conclusion [22] Dr. Lohrasbe is qualified as contemplated by Section of the Criminal Code. [23] While Mr. Melvin has some generalized concerns regarding his appointment as assessor, I find those insufficient to interfere with the appointment of Dr. Lohrasbe. Mr. Melvin can seek his own private expert s opinion, and may present that expert s evidence at any hearing. He will also have the opportunity then to extensively cross-examine Dr. Lohrasbe. Order granted [24] I appoint Dr. Shabehram Lohrasbe, MD, of Victoria, British Columbia, to carry out an assessment and file a report for use as evidence in the applications under Sections 753 and of the Criminal Code. [25] I grant the Crown s request for a 60 day assessment period within 30 days of which Dr. Lohrasbe shall file his report of the assessment with the court. Copies will be simultaneously made available to the Crown and Mr. Melvin s counsel. [26] I direct the Crown to prepare the order. Rosinski, J. 5 Or 120 days in total, if extraordinary circumstances warrant - Section 752.1(3).