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Patrick Watson: Fred Fawcett farmed the land around Owen Sound Ontario for 30 years. On September 18, 1961 he was arrested for shooting a hole in a tax assessors tire [some laughter from the audience]. Charges were laid against Fred Fawcett, but the charges were never heard. The magistrate sent him to a mental institution for examination. He’s been in Ontario mental institutions ever since. For more than 25 years, Fred has been trying to get an access road to get his timber out - a service provided to all the other farmers in the area. When the township kept refusing to provide it, Fred Fawcett stopped paying taxes. Tax assessor Henry Seabrook visited Fred Fawcett’s farm on August the 28, 1961 and Gabriel Michael Ease of the Seven days staff asked him what happened.
Henry Seabrook: Approximate one o’clock, the 19th of August and we turned the car around facing the road. I got out of the car first, being next to the house. And Mr. Howie got out on his own side and come around. Now I was a step or two ahead of Mr. Howie. I don't think I took more than three or four steps when I met Fred Fawcett coming around from the other side of the house with this gun in his hand - a pistol or revolver. He said ‘walk to the road.’ I turned, and took a step or two towards the car when I was knocked down and a shot was fired.
Interviewer: How were you knocked down?
Seabrook: He was behind me, but I would say he’d done it with his arms. I wasn’t hit.
Patrick Watson: A month after this disputed shooting, which Fred Fawcett and two witnesses deny ever occurred, Fred Fawcett was arrested, certified by two psychiatrists, and committed to the Ontario Mental Hospital at Penetanguishene, Ontario. Except for two trials at the Ontario Supreme Court and a nine-month stay in the Ontario Hospital in Toronto, Fred Fawcett has been there ever since. This week we drove 90-miles north of Toronto to visit him in his maximum security ward.
Interviewer: Did you shoot at the tax assessor’s car tire?
Fawcett: No, I never shot at nobody, I didn’t need to. There were two weak old men that I’d be ashamed to even push.
Interviewer: Have you ever possessed anything shorter than a rifle?
Fawcett: No, no. No, I’ve never owned a pistol.
Interviewer: Do you think that you should be let out of here, and if so, what do you propose to do about it?
Fawcett: Well, I’d like to have those charges cleared.
Interviewer: How would you go about this?
Fawcett: Well, I would ask for the court to clear me on those charges.
Interviewer: But, Mr. Fawcett, they say that you are to be deprived of your rights because you are legally insane.
Fawcett: So -
Interviewer: The central question seems to be whether or not you are insane.
Fawcett: well, I think the courts erred in not looking at the fact that no person – that’s the work term of the Magna Carta - no person, that means any person whether sick or well, shall be held or detained - and this is detention - without being given the right to be proven guilty or innocent.
Interviewer: But, uh, haven’t the courts decided, including the Supreme Court, that you are, indeed, insane?
Fawcett: It never was I brought out that I was being deprived of my rights under the Magna Carta and every other British law. They just took on the say of the doctors, Dr. Boyd at the commitment in Owen Sound stated that as far as he was concerned, I was as sane as he was. And uh -
Interviewer: Dr. Boyd said that?
Fawcett: Said it at Owen Sound. But he told me he’s like to see me out, but - and that he would release me, if I promised him not to bother about the Crown grant anymore.
Watson: Those doctors who think Fred Fawcett is insane emphasize that the condition is active only when Fred is on the farm.
Watson: The mental institution where Fred is held is directed by one of the four doctors that testified that Fawcett was insane. His name is Doctor B. A. Boyd and we asked him whether it was usual to have three psychiatrists testify that a man is sane, and fourth others swear that he is insane.
Boyd: It’s uh, it’s quite usual. It could have been a one-two split or it could have perhaps been a five-seven split. If necessary, more and more psychiatrists could have been brought in and make it appear even more ludicrous than it is with a four-three split.
Interviewer: I believe it started out as a three-two split and then developed into a four-three split. And I believe that’s where it stands at the moment.
Boyd: There were a number of other psychiatrists involved in the case who didn’t appear at the trial and I suspect the numbers could have been increased.
Interviewer: What sort of decision do judges usually reach when there is this sort of split between psychiatrists? How do they reach decisions? Is there not usually - do they not usually take the attitude that the accused is given the benefit of reasonable doubt?
Boyd: Well now I’m not a lawyer, I’m a psychiatrist, but it’s my understanding that on a question of guilt there has to be proof beyond a reasonable doubt. When the question of mental illness and mental health is concerned in court, it’s usually a question of preponderance of evidence rather than beyond reasonable doubt. But judges and juries, of course, have to listen to opposing testimony all the time that’s what.
Watson: Dr. Alexander Sutmary has been a practicing psychiatrist for 30 years, he’s now a professor of clinical psychiatry at the University of Toronto.
Sutmary: my name is Dr. Alexander Sutmary. I am psychiatrist. I had opportunity to see Fred Fawcett as a psychiatrist on several occasions in 1961, 1962, and recently. And, on the basis of my own examination, I came to the conclusion that Fred Fawcett is not mentally sick, does not suffer under delusions, and has - does not need or doesn’t have to be certified as a mentally sick patient and be confined in a mental hospital.
Watson: Dr. Sutmary’s judgement was supported by two other psychiatrists: Dr. Arthur Doyle, head of the psychiatric ward at St Michael’s Toronto and Dr. Allan G. Crisp. Caught in the middle of this psychiatric conflict is Fred Fawcett’s sister, Rita who’s spent many thousands of dollars trying to get her brother released. She talks to Warren Traynor.
Rita: I don’t think he’s either eccentric or has a fixation because he’s much more sensible about it than perhaps I would be or most other people. He feels that he has something there to support his contention that he should have equal services and consequently he feels that he should use them and the decision of the court.
Interviewer: Is he stubborn then?
Rita: Well I think that he’s a man who would stand up for his rights. I wouldn’t say that he’s a very stubborn man, I would say that I’m a much more stubborn person than he is.
Interviewer: How persistent and stubborn are you? When will you quit trying to get your brother out of there?
Rita: I won’t quit trying to get my brother out because I feel he should be out. I think there’s a serious miscarriage of justice.
Interviewer: Did you have trouble finding psychiatrists who would say that your brother is sane? That he was not mad?
Rita: Yes. Not that they didn’t find that he wasn’t sane but when they found that the government was hiring psychiatrists and would possibly make trouble for them they didn’t want to testify against them.
Watson: Fawcett's lawyer, Bernard Cott.
Cott: What we have to note in the Fawcett case that makes it so different despite the court decision is that we have had three very eminent psychiatrists testify that he is sane.
Interviewer: Three psychiatrists?
Cott: Yes. We had Dr. Doyle, Dr. Shutmary, and Dr. Crisp. Men of great experience and who I’m sure we’d like to think are just as capable as the people who appeared for the department. That is one thing. And the question arises: what do you do in a case when you have three men testify that a man is sane, three doctors testify that a man is sane and four testify that he’s not, that he’s not sane. This raises, you see, the question as to whether we should not really in a case like that resolve the doubt - for in my opinion there must be a doubt, you have two sides to a story - in favour of liberty and in favour of sanity. In this case, in 1965, like in 1962, Fred Fawcett was the applicant – he’s the man that comes into court and has to prove that he is sane. The burden rests on him. Why should it?
Interviewer: I don't know is -
Cott: A young man steals a car, drives around all over Ontario for example smashes up the car and then he leaves it on the street and two days later the police arrest him for stealing a car. He walks into court, he folds his hands, and he says ‘well you prove it.’ And then everything works in his favour, they have to prove that he is guilty. I would like to think, particularly in the case where we have medical evidence to support the patient’s allegation that he is sane - why should the burden rest on him? Yet he has to - that is why in a civil trial if there was a doubt it couldn’t really be resolved in favour of Fawcett because he is the mover, he is the man who asserts and he has to prove on the balance of probability that he is sane. And sometimes that may be difficult, like in this case, it was difficult.
Interviewer: What must Fred Fawcett do to get released? He is - he must prove his sanity and reasonable doubt cannot be resolved on his side.
Cott: Certainly I think we have retained the best medical talent that you can possibly get in our country. And this is all that you can do, just like when you have a difficult case and you want to get the best defence, you try and retain the most experienced lawyer. We have retained the most experienced doctors. And if this failed, one wonders what you can do. I think it only goes to prove the very point of this case: how easy it may be to get in, but almost impossible to get out.
Watson: The man who can answer for keeping Fawcett locked up is Ontario’s Attorney General, Arthur Wishart. He’s questioned by Warren Troyer and Peter Pearson.
Troyer & Pearson: How does Fred Fawcett - what can Fred Fawcett do now to get out?
Wishart: Well, an application can be made at any time under the Mental Hospital’s Act and if tomorrow a preponderance of evidence could show that he had recovered and was ready - was fit to be released - this could come about. This is the goal to which we strive - to find him free of mental aberration and that he’s capable of being released.
Troyer & Pearson: Let us try to define that --
Wishart: -- That’s the goal of our training, our mental hospitals.
Troyer & Pearson: Let us try to define preponderance of evidence. Is this a question of odds? If he had nine psychiatrists who said he was sane against four who said he was not would that get him out? Is this a numbers game?
Wishart: Well I should certainly think that would be a preponderance.
Troyer & Pearson: Mr. Wishard, if an independent group of psychiatrists - let us say very prominent psychiatrists from New York, from Montreal - people who were independent in the sense that they were not connected with the government, or Ontario hospitals, or with Fred Fawcett - a group of four or six or fifty psychiatrists were empanelled to examine Fred Fawcett and if they found him sane would the government release him?
Wishart: Well now, it’s a very interesting thought. We’ve had seven psychiatrists and there’s been difference of opinion. I would certainly be willing to have him examined by more psychiatrists but supposing you come again to a difference of opinion, what do you do? As the court, and particularly Mr. Justice Betts pointed out, that’s a very heavy burden to place upon a court. If this area is dangerous to let him loose in that area.
Troyer & Pearson: Speaking -- excuse me Sir, speaking of difference of opinion, in general court procedure I think that the difference of opinion is generally resolved in favour of the individual isn’t it?
Wishart: That is the principle of law, yes, that if you’re accusing a person you must establish your case.
Troyer & Pearson: Then why was the difference of opinion not resolved in favour of Fred Fawcett?
Wishart: Well under the Mental Hospitals Act, a person declared insane, found insane, then the onus of proving his sanity, there must be a preponderance in his favour.
Troyer & Pearson: How do you prove that you’re sane?
Wishart: By the evidence of psychiatrists, that’s how you -
Troyer & Pearson: Fred Fawcett got that.
Wishart: He was, yes. That is true.
Troyer & Pearson: There’s been nothing in Fred Fawcett’s record since August 28, 1961 to indicate any mental derangement since that time. How long must he wait until he gets out?
Wishart: There’s nothing – he’s been in an institution with the exception I believe of a month he stayed at the farm – there’s nothing in his conduct while he’s been in the institution to show mental derangement and I think the psychiatrists agree that it’s only in the area, the geographical area of his farm that this paranoia appears.
Troyer & Pearson: Well could he get out if he sold the farm and rented an apartment in Toronto? [Laughing] Would the Attorney General's department drop its case against him? Would you be happy to have him out?
Wishart: You put it simply: if he sold the farm. I think the psychiatrists would then say - this is what I read in their evidence - that if this farm situation were removed I from his mental area that the paranoia would disappear.
Troyer & Pearson: If he sold his farm, if the farm were sold tomorrow, could he get out of the Ontario mental hospital the next day and rent an apartment in Toronto and live a normal life as a free man?
Wishart: Well I don’t think it would be quite that simple. I think if he sold his farm and if he came forward then with an application I think psychiatrists would then say this – they’ve all said, those who’ve said he’s mentally deranged in this area - would say this no longer exists. And I think he would be freed.
Back to studio: Ladies and gentlemen, Fred Fawcett has twice taken his case to the Ontario Supreme Court and once to the Canadian Supreme Court. There’s really no further recourse for him in the courts. He does not know how he can prove to the officials that he is sane. The three best psychiatrists he could get weren’t good enough.11:54:55:00
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