ONTARIO COURT OF JUSTICE

CITATION: R. v. Mishibinijima, 2018 ONCJ 96

DATE: 2018 02 13

Gore Bay

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

LEVI MISHIBINIJIMA

Before Justice V. Christie

Heard on January 30, 2018

Reasons for Judgment released on February 13, 2018

D. Beaton.............................................................................................. counsel for the Crown

J. Weppler.................................................. counsel for the defendant Levi Mishibinijima

CHRISTIE J.:

[1] On January 30, 2018, Mr. Mishibinijima pleaded not guilty to a charge of aggravated assault. The charge reads as follows:

That Levi Alexander Michael Mishibinijima on or about the 14^th^ day of August, 2017 at the Village of Wikwemikong in the said region did endanger the life of Joseph Michael Gerald Mandamin thereby committing an aggravated assault contrary to Section 268 of the Criminal Code.

Agreed Statement of Facts

[2] Following the plea of not guilty, an agreed statement of facts was entered as Exhibit 1. The facts were as follows:

(1) On August 14, 2017, Wikwemikong Police Services (WPS) were dispatched to a reported stabbing which occurred at 2152 Kaboni Road.

(2) Officers attended to 2166 Kaboni Road in Wikwemikong.

(3) The officers had prior information that from the Communications Centre (PCC) that Levi Mishibinijima was the suspect.

(4) At 2166 Kaboni Road the officers spoke with Darrin Mandamin who advised that the Accused fled on foot.

(5) The officers attended to 2152 Kaboni and observed Michael Mandamin. He had his left hand on his neck and officers noticed blood down the front of his shirt.

(6) Mr. Mandamin advised police that the Accused had stabbed him from behind in the neck and then fled the area. He further advised that the Accused was wearing all black clothing and had fled across a field.

(7) The officers maintained observation on a trail at the end of a field where it was believed that the Accused had fled.

(8) Mr. Mandamin was transported by ambulance to Little Current for medical attention.

(9) The WPS requested assistance from the Ontario Provincial Police (OPP) as well as the UCCM Police (UCCM). Officers from both those forces were dispatched to Wikwemikong and a search commenced.

(10) At 9:22 pm, the PCC advised that an April Simon called and that she advised the Accused had contacted her from a phone number she recognized as belonging to Kyle Johnson who resides at 482 Wikwemikong Way.

(11) Police attended to that location and the Accused was located in the driveway.

(12) The accused was arrested at 9:34 pm.

(13) The Accused blurted out that he was a murderer and that he killed his brother (the victim Mandamin) as the victim had killed his father.

(14) The Accused was cautioned to say nothing more, read his rights and transported to the detachment.

(15) Police interviewed Tim Pangowish who stated he observed the Accused run at Mr. Mandamin from behind. He heard impact noises and observed the Accused to strike Mandamin.

(16) Pangowish did not see any injuries or blood but did leave before police arrived. He further heard Mandamin to say that the Accused was crazy. He further heard the Accused say “I know you killed my father”.

(17) At 2:15 am, the Accused was interviewed under caution. He told St. Cooper that he was getting a “weird vibe” that was telling him to kill, something like a flare. Levi Mishibinijima said it was like, “I just thought it was like Bear Witch or Bear Walker, bad, bad vibes.” He said that it was “like kinda taking control of me”.

(18) Levi Mishibinijima told Sgt. Cooper that he could hear his father saying “Gwissehn, gwissehn” which means son in Anishnaabe. His father was telling him that the victim had hung him and that he needed to be free of him. Then he went on to say that the victim said something “like I killed your father or your father’s dead in your mind control”. He could hear his dad speaking. Then Levi Mishibinijima said, “….all I could hear is go ahead Gwiss stab him get it over with and leave and something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him.”

(19) Levi Mishibinijima was asked by Sgt Cooper who did you tell that to and Levi Mishibinijima replied, “My father was telling me that”.

(20) The knife used in this attack was taken from the Accused’s grandmother’s house.

(21) Mr. Mandamin was transported to Sudbury for further medical treatment.

(22) The Emergency Room Note from Manitoulin Health Centre dated August 14, 2017 indicates that Mr. Mandamin lost between 600 to 800 cc’s of blood due to the nature of the dressings when he arrived at the hospital and what was suctioned from the wound. The report notes that the wound was in the neck, the wound direction was vertical and approximately 2 cm in length.

[3] The Court was further advised that Mr. Mandamin recovered from his injuries.

[4] Based on this agreed statement of facts, and as conceded by the parties, there is no question that Mr. Mishibinijima committed an aggravated assault on Mr. Mandamin at the time and place indicated. The Court had no difficulty concluding this beyond a reasonable doubt.

Hearing to Determine Criminal Responsibility

[5] Counsel on behalf of Mr. Mishibinijima then submitted that his client should be found not criminally responsible of this offence on account of mental disorder. Evidence and arguments were then heard.

[6] Submitted by the defence, the Court received a psychiatric report dated November 14, 2017 authored by Dr. Beth Eayrs, a Consultant Forensic Psychiatrist to Waypoint Centre where Mr. Mishibinijima was incarcerated at the time of the hearing. This report was marked as Exhibit 2 and a copy of Dr. Eayrs’ curriculum vitae was marked as Exhibit 4.

[7] Dr. Eayrs was also called as a witness by the defence. She was qualified by the Court to give expert evidence. She was specifically qualified as a forensic psychiatrist. She testified that she had been conducting Form 48 assessments regularly for the past 1.5 years and prior to that she would do these assessments on an occasional basis. Dr. Eayrs, at the time of her testimony, held a faculty appointment at the University of Toronto as a lecturer and supervisor of residents and medical students. In addition, Dr. Eayrs was a psychiatrist member of the Ontario Review Board. The Crown agreed that Dr. Eayrs was qualified to give expert evidence in the area of forensic psychiatry.

[8] Dr. Eayrs testified that she had been the treating psychiatrist for Levi Mishibinijima. She first met him when he was admitted to Waypoint on September 6, 2017. Dr. Eayrs referred to page 7 of her report which stated:

Mr. Mishibinijima evinced signs of psychotic illness from the time he arrived at Waypoint on September 6, 2017. During the admission interview, he was found to be occasionally responding to internal stimuli. There was some disorganization of thought processes, though insufficient to cause concern about fitness to stand trial. Later that same day, however, he was seen laughing to himself and running in the hallway. He invaded the personal space of a co-patient, who warned him not to touch him. A physical altercation ensued, the beginning of which was unwitnessed by staff. Upon being secluded, Mr. Mishibinijima winked and made kissing gesture towards female staff. He was also seen laughing to himself, and making facial grimaces and grunting noises for no apparent reason. He was also seen licking his window.

[9] Dr. Eayrs clarified that this was about 2 weeks after the material time when the stabbing occurred.

[10] When asked whether Mr. Mishibinijima was suffering from a psychosis, Dr. Eayrs responded in the affirmative. She explained that it took many weeks, if not several months, for his psychosis to resolve. She explained that it was a gradual resolution. Dr. Eayrs explained that during that time, he was not using cannabis or other intoxicating substances. She further explained that she did not have a lot of information from before the incident and she did not know how long he was in that state leading up to the incident. However, Dr. Eayrs, relying on a self-report from Mr. Mishibinijima, believed that the psychosis was present for a few months or longer. Based on all of this information, Dr. Eayrs found it reasonable to assign a diagnosis of schizophrenia.

[11] Dr. Eayrs did not believe there was any evidence to suggest this was a drug-induced psychosis. She did state that Mr. Mishibinijima gave conflicting reports about when he last used cannabis and explained that cannabis can cause psychosis or be aggravating. Dr. Eayrs testified that she did not get any information that he had been using on the day of the index offence or using substantial amounts in the weeks leading up to the offence. With respect to alcohol, Dr. Eayrs testified that, at times, Mr. Mishibinijima denied using alcohol at the time, however at other times, he referred to drinking a beer or even two beer. Regardless, there was nothing to suggest excessive alcohol at the time of the index offence.

[12] Dr. Eayrs was provided with the transcript of the taped police interview with Levi Mishibinijima from August 15, 2017. She clarified that she had not reviewed the interview prior to preparing her report, but rather only a case file synopsis. Dr. Eayrs stated that the content of the interview reinforced the conclusions that she came to in her report, as to Mr. Mishibinijima’s state of mind at the time of the index offence. She stated that it reinforced her conclusions in two ways:

(1) The statements to Sgt. Cooper show a disorganized state of mind which is a typical feature of a psychotic episode and is common of untreated schizophrenia.

(2) The statements demonstrate paranoia toward the victim. He was influenced by hearing voices, seeing his father’s spirit, and believed his father was speaking to him at the time, telling his what to do. Thought insertions are features of psychotic illness that point to a disturbed state of mind

[13] Dr. Eayrs was asked whether Mr. Mishibinijima was acting on command when he was stabbing Mr. Mandamin, to which she responded in the affirmative. She indicated that Mr. Mishibinijima reported that he heard a voice telling him to stab the victim, which Dr. Earys described as command hallucinations. She also referred to the fact that he used the phrase “mind control” in his interview with police (p. 23). Dr. Eayrs explained that he believed someone can control his mind and that this is another symptom that occurs when someone is psychotic.

[14] In the “opinions and recommendations” section of the report, commencing at page 9 of 11, Dr. Eayrs provided the opinion that Levi Mishibinijima likely suffered from a mental disorder on August 14, 2017. Dr. Eayrs confirmed this in her testimony, however, she indicated that it is difficult to say this directly in the report. She explained that she did not have any collateral information from friends or family, despite attempts that were unsuccessful, and there was simply no information about Mr. Mishibinijima’s state of mind leading up to the events. However, Dr. Eayrs stated that it was reasonable to extrapolate backwards given that 3 weeks after the events, Mr. Mishibinijima was still psychotic and agitated and being influenced by his psychotic experience. He was not able to ignore or set aside his hallucinations and his behaviours were being influenced by the hallucinations.

[15] In Dr. Eayrs’ opinion, Levi Mishibinijima was psychotic at the material time of these events. When asked whether this mental disorder would have rendered him incapable of appreciating the nature and quality of the act, she replied “no”. She said, “I think he knew what he was doing….. I think he knew he was stabbing a human being.” However, Dr. Eayrs stated, “…..but he was acting under the influence of his mental disorder…..He was not able to access rational choice…..He was not able to consider the wrongfulness of his actions.”. She stated that Mr. Mishibinijima was overcome by the experience of hearing his father’s voice and getting vibes. He was in the grip of a marked psychosis.

[16] Dr. Eayrs explained that when Levi Mishibinijima came to Waypoint, he did not get medicated for a period of time, and it was clear that he was very psychotic during this time. Mr. Mishibinijima asked for a consent and capacity hearing which delayed the process. His treatment with Paliperidone began in early October 2017. She said that he has responded favourably to the medication. For a number of weeks after beginning the medication, he was still psychotic with good and bad days, but as time went by and the dosage increased, those days became fewer and fewer. Over the last 2 full months, there have not been any symptoms of psychosis.

[17] The last time Dr. Eayrs met Mr. Mishibinijima was the week before the hearing on January 30, 2018. She described him as pleasant, calm and cooperative. Dr. Eayrs explained that there was still a certain vagueness to his thought and how he expressed thoughts, but his thoughts were more organized and his thought process was improving. There was no indication of paranoia and he was not distracted by internal stimuli, in other words, not hearing voices.

[18] Finally, Dr. Eayrs stated that if the court did find Mr. Mishibinijima not criminally responsible by reason of a mental disorder, it was her opinion that he still requires a secure facility, however less secure than what he has been in. She confirmed that a bed is still available for him back at Waypoint for the time being. She also stated that if the Court found him not criminally responsible but then adjourned for the Ontario Review Board to make a decision about disposition, that would take place at Waypoint and she would be present to provide evidence.

[19] In cross-examination, Dr. Eayrs confirmed that they were unable to obtain collateral information from family and friends. Also, there was no past medical information available, despite attempts made to retrieve such information.

[20] Dr. Eayrs was asked about the cumulative effect of drug and alcohol use by Mr. Mishibinijima, which was also referred to at page 2 of her report. She replied that it was her impression that he was describing heavy use of alcohol between 18 and 20 years of age, but that it was her impression that he had not used as much alcohol since then. She did not believe that alcohol contributed to his mental state. Dr. Eayrs believed, however, that it was more likely that the regular and significant use of cannabis would have contributed to the eventual emergence of psychotic illness. She explained that regular cannabis use throughout teenage years is a factor that can contribute to the emergence of a psychotic illness. Dr. Eayrs testified that the human brain is continuing to develop and mature up to the age of 25 and that this amount and extent of substance use, particularly the cannabis use, has had a negative effect on his brain, and would play a contributory role in psychosis. Dr. Eayrs could not say whether or not he would have had the illness without using substances.

[21] Dr. Eayrs testified that she was “pretty certain” that he was psychotic at the material time, and that the transcript of his police interview reinforced that opinion. She agreed that when a person is sliding into a psychotic state, it would start minimal and progress over time and agreed that the act of stabbing someone in August is an extreme action. Yet, Dr. Eayrs also agreed that in the days and weeks prior, they were not able to locate anything to show his behaviour was progressing toward a psychotic state, other than some comments from his self-report. There were no other sources of information that would assist such as family, police reports, or medical files. It was suggested to Dr. Eayrs that the symptoms / behaviour could have started on the day in question and went forward. She agreed that it was possible but unlikely given his state of mind as evidenced from the interview on August 15 which showed his thoughts to be very disorganized and with reference to a variety of psychotic symptoms that continue for weeks after. Dr. Eayrs stated, “It is likely that he was in a similar state of mind on August 14 as he was on the 15^th^”. She described this as an endogenous mental disorder. She also pointed to the fact that the psychotic symptoms continued for weeks after the material time, in the absence of the use of substances, such as cannabis, cocaine or alcohol, which also points to the existence of an endogenous mental disorder. She stated that the duration, severity, presence of agitating behaviour that did not resolve until he received treatment, all supported her opinion that this psychotic state of mind was present on August 14 and likely weeks or months leading up to that point.

[22] It was suggested to Dr. Eayrs that when they attempted to medicate Mr. Mishibinijima initially, he refused and requested a hearing which might suggest a logical thought process. Dr. Eayrs did not agree with this suggestion and stated that the way it unfolded suggested the exact opposite. When the Rights Advisor came to meet him, Mr. Mishibinijima was not able to indicate very clearly to the Rights Advisor what he wanted but according to the Rights Advisor, he was not happy about receiving medication. Dr. Eayrs clarified that there was no clear request for a hearing from Mr. Mishibinijima.

[23] In re-examination, Dr. Eayrs clearly stated that in her opinion, Mr. Mishibinijima appreciated the nature and quality of what he was doing but could not act on rational choice to think through moral and legal wrongfulness. An acute psychotic state prevented him from doing that. The factors that assisted Dr. Eayrs in understanding his state of mind at the time were the severity of the psychosis when he arrived at Waypoint, the evidence from the jail that he was demonstrating psychosis there, information from the case file synopsis, the fact that the psychosis was getting worse, his self-report leading up to the material time, and the absence of any information that he was using intoxicating substances at the time. All of this led Dr. Eayrs to conclude that Levi Mishibinijima was acutely psychotic with an endogenous (entrenched) mental disorder.

[24] In addition to the testimony of Dr. Eayrs, the Court reviewed and considered the entirety of the psychiatric report dated November 14, 2017, which was introduced by the defence on behalf of Mr. Mishibinijima and marked as Exhibit 2. The following information is noted from the report:

(1) The personal background section of the report states that during the first part of the admission to Waypoint, Mr. Mishibinijima was so disorganized that he was unable to provide Waypoint staff with accurate contact information for his mother or other family members. Therefore, the personal background section was a compilation of information obtained from Mr. Mishibinijima himself and from the information provided by the Sudbury Jail.

(2) The report then provides information relating to Mr. Mishibinijima’s childhood and education, employment and residence, criminal history, substance use, medical history, and criminal history.

(3) Mr. Mishibinijima provided a self-report to the Psychometrist on November 2, 2017 and to Dr. Eayrs on November 10, 2017. [These statements are not proof of the truth of the facts stated, however, statements of a preposterous nature may be relevant to the issue of mental disorder and criminal responsibility. – see R. v. Kirby (1985), 1985 CanLII 3646 (ON CA), 21 C.C.C. (3d) 31 (Ont. C.A.) at p. 53; R. v. Dobson, 2015 ONSC 2865, para 128-129]

(4) Evidence of mental illness was taken from the file from the Sudbury Jail, his course in hospital at Waypoint from September 6, 2017 to November 10, 2017, and a draft psychology report which included the results of some testing. Collateral information from family was not available. The following is noted:

(a) File Information from the Sudbury Jail – On August 24, 2017, Mr. Mishibinijima was seen by Dr. Veluri who noted that the interview was very difficult because Mr. Mishibinijima was unable to focus. He was laughing for no particular reason, and displayed facial expression out of keeping with the topic of conversation, that is, he would burst into laughter when talking about his father’s death. His thinking was described as disjointed and thought disorder was evident.

(b) Course in hospital, Waypoint, September 6, 2017 to November 10, 2017 – Mr. Mishibinijima evinced signs of psychotic illness from the time he arrived at Waypoint on September 6, 2017. During an attempted Consent and Capacity hearing, he became agitated and spat at two nursing students who were observing. When this hearing was resumed a few days later, he was too unwell to come out of the seclusion suite and the meeting had to take place in the corridor outside his room. Until treatment with antipsychotic medication was commenced on October 7, 2017, Mr. Mishibinijima exhibited a fluctuant pattern of intense psychosis. The overall trajectory was that of psychosis deterioration. Mr. Mishibinijima was found incapable of making treatment decisions on September 15, 2017. From September 15, 2017 to September 18, 2017, he did accept 3 mg oral Paliperidone twice daily, and showed some improvement. The treatment was stopped when the Rights Advisor gave notice on September 18, 2017 that Mr. Mishibinijima wanted a hearing. A hearing went ahead and treatment with oral Paliperidone was begun with Mr. Mishibinijima’s cooperation in early October 2017. Since a dose of 12 mg oral Paliperidone was achieved in mid-October, Mr. Mishibinijima has shown fewer and fewer episodes of intense psychosis.

(c) Psychology Report (Draft) – The report had not been reviewed by a psychologist but portions of it were included in the psychiatric report because: 1) it provided some information about Mr. Mishibinijima’s recollection of the material time, 2) it indicated some ongoing cognitive impairment; and 3) testing discovered that there was no suggestion of an attempt to malinger mental illness.

(5) Finally the report contains an “opinions and recommendations” section which states in part as follows:

(a) Following a period of treatment, Mr. Mishibinijima was assessed with respect to fitness on November 10, 2017 and was deemed fit from a psychiatric perspective.

(b) Mr. Mishibinijima continues to exhibit some disorganization of thought processes. There is still occasional evidence of his responding to internal stimuli, but both features of his illness have shown substantial improvement since treatment was commenced.

(c) Mr. Mishibinijima remained floridly psychotic for many weeks after arriving at Waypoint. He was not using substances during this interval. The duration of psychosis in the absence of substance use qualifies him for a diagnosis of at least Schizophreniform Disorder and if his symptoms persist for much longer, the more accurate longitudinal diagnosis will be Schizophrenia.

(d) Mr. Mishibinijima indicated that he believes he is special on account of the experience of hearing voices, including special in a moral way. He continues to think this way about himself in spite of the abatement of voices, and it is likely that he possessed this psychotically driven exalted view of himself at the material time.

(e) Mr. Mishibinijima has exhibited a fluctuant pattern of acute psychosis throughout his admission to Waypoint. This has con­tinued in the absence of use of alcohol and street drugs.

(f) Given Mr. Mishibinijima’s psychotic and disorganized presentation in the absence of substance use, it is reasonable to extrapolate back to the material time and to assert that this was, on a balance of probabilities, his underlying state of mind at the time he assaulted the victim. While he may have used some cannabis during the period leading up to the material time, while it is possible that cannabis could have exacerbated his psychosis, his psychotic presentation at Waypoint, which has prevailed in the absence of cannabis use, points to an endogenous psychotic illness as the chief factor in play at the material time.

(g) There has been ample evidence that he hears voices and receives psychotic messages on an intermittent basis, yet he will only sometimes admit that this is occurring.

(h) A combination of the content of the voices, psychotic disorganization and agitation and psychotic grandiosity were, in all likelihood, in play at the material time in such a way as to interfere with capacity to assess rational choice in relation to considerations of moral and legal wrongfulness.

(i) Mr. Mishibinijima does not present as currently certifiable according to the criteria of the Mental Health Act of Ontario. In the event of his stopping this medication, he would likely deteriorate within days to weeks, and in a deteriorated state, would once again pose a high risk of violent behaviour.

[25] In addition to the above, the defence submitted a copy of the transcript of Mr. Mishibinijima’s statement to police which was taken on August 15, 2017 between the hours of 2:15 a.m. and 2:53 a.m. The transcript was marked as Exhibit 3. The Court has reviewed the entirety of this transcript, however, the following comments are of note:

Sgt. S. Cooper: so you’re telling me your dad was a good man and the other guy was a bad dude

Levi Mishibinijima: (u/i)

Sgt. Cooper: yeah

Levi Mishibinijima: (u/i)

Sgt. S. Cooper: he’s a crack head and deals drugs

Levi Mishibinijima: yeah (u/i) get my dad involved in drugs you know

Sgt. S. Cooper: uhmm

Levi Mishibinijima: he was going out with Blossom before he died

Levi Mishibinijima: (u/i) my daddy brought me back from Windsor (u/i) came and got me over there

Sgt. S. Cooper: you were down in Windsor

Levi Mishibinijima: yeah

Sgt. S. Cooper: oh that’s why I haven’t seen you around you were gone for quite a long time

Levi Mishibinijima: yeah and then he drive me back hic em yeah and I got to see my dad for like a week and then

Sgt. S. Cooper: uhmm

Levi Mishibinijima: he died

Sgt. S. Cooper: yeah who is your grandma

Levi Mishibinijima: Caroline Mandamin

Sgt. S. Cooper: Caroline Mandamin

Levi Mishibinijima: yah

Sgt. S. Cooper: which house does she live at they’re there’s three houses there (u/i) which one is their house

Levi Mishibinijima: the blue house

Sgt. S. Cooper: oh the blue house so you were there visiting your grandma

Levi Mishibinijima: yeah

Sgt. S. Cooper: oh yeah and you said that she’s pretty (u/i)

Levi Mishibinijima: yeah (u/i) when I got there you know (u/i) message from my dad

Sgt. S. Cooper: uhmm

Levi Mishibinijima: yeah

Sgt. S. Cooper: uhmm

Levi Mishibinijima: (u/i) and my auntie Violet took off (u/i)

Sgt. S. Cooper: you saw your dad’s spirit is that what you said

Levi Mishibinijima: yeah it was like a bunch of like it was a bunch of vibes

Sgt. S. Cooper: yeah you were getting vibes

Levi Mishibinijima: and then something in my head communicated with me it kill her kill her right now then like

Sgt. S. Cooper: uhmm so you’ve never met Mike before

Levi Mishibinijima: no

Sgt. S. Cooper: do you know who he was

Levi Mishibinijima: no

Sgt. S. Cooper: no so how do you know that was Mike that was there

Levi Mishibinijima: because I got there real close to him and like (u/i) dad was speaking to me (u/i) basically I could hear him say it (u/i)

Sgt. S. Cooper: what was he saying what did you hear in his head

Levi Mishibinijima: (u/i) he wouldn’t look at me he’d look away like

Sgt. S. Cooper: uhmm

Levi Mishibinijima: then he’d something like I killed your father or your father’s dead (u/i) in your mind control

Sgt. S. Cooper: uhmm

Levi Mishibinijima: and then he’s (u/i) like he wasn’t there man

Sgt. S. Cooper: uhmm and how did that make you feel

Levi Mishibinijima: it made me feel uncomfortable

Sgt. S. Cooper: uhmm

Levi Mishibinijima: knowing that I can hear my dad

Sgt. S. Cooper: uhmm

Levi Mishibinijima: yeah I kinda feel like it was (u/i)

Sgt. S. Cooper: uhmm and then what happened

Levi Mishibinijima: I guess I can hear dad (u/i) at the tractor (u/i)

Sgt. S. Cooper: uhmm

Levi Mishibinijima: and then I can hear my uncle Theodore coming and like I always hear and all I could hear is go ahead Gwiss stab him get it over with and leave and

Sgt. S. Cooper: uhuh

Levi Mishibinijima: and something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him

Sgt. S. Cooper: where did you stab him

Levi Mishibinijima: in the neck somewhere or in the head and then I ran (u/i) and then just like and I ran back I guess and I told I told the (u/i) that he hung him

Sgt. S. Cooper: uhuh who did you tell that to

Levi Mishibinijima: my father was telling me that (u/i)

Sgt. S. Cooper: uhmm

Levi Mishibinijima: but my father was telling before that him and Mike had a fight before (u/i)

Sgt. S. Cooper: uhmm

Levi Mishibinijima: jealous of him Mike (u/i) it’s like

Sgt. S. Cooper: uhmm

Levi Mishibinijima: yeah my dad’s like traditional medicine

Sgt. S. Cooper: uhmm

Levi Mishibinijima: he followed the traditional way medicine

Sgt. S. Cooper: …..you were saying that you felt that you were being bear walked you said something overcame you and you was telling you to kill Mike is that correct

Levi Mishibinijima: yeah

Sgt. S. Cooper: can you tell me when you said you had a knife and where did this knife come from

Levi Mishibinijima: at my grandma’s

Sgt. S. Cooper: at your grandma’s can you describe that knife to me

Levi Mishibinijima: just a knife I guess it was on the counter

Sgt. S. Cooper: uhmm

Levi Mishibinijima: And I had some pizza (u/i) made some pizza (u/i)

Sgt. S. Cooper: yeah you had some pizza at your grandma’s and it was the knife that you were using for the pizza or

Levi Mishibinijima: no it was a it was a pizza cutter knife

Sgt. S. Cooper: it’s a pizza cutter knife

Levi Mishibinijima: hmm

Sgt. S. Cooper: yeah

Levi Mishibinijima: it was there the (u/i) the knife (u/i)

Sgt. S. Cooper: a what knife

Levi Mishibinijima: a knife beside it

Sgt. S. Cooper: okay so which knife did you grab

Levi Mishibinijima: it was a wooden knife (u/i)

Sgt. S. Cooper: a wooden knife

Levi Mishibinijima: yeah (sniff)

Sgt. S. Cooper: where is that knife now

Levi Mishibinijima: I don’t know I threw it away somewhere it must’ve fell

Sgt. S. Cooper: do you remember exactly where it may have fell

Levi Mishibinijima: no

Sgt. S. Cooper: was it at the house or at the field or in the bush

Levi Mishibinijima: I don’t know it’s gone it’s gone

Sgt. S. Cooper: it’s gone

Levi Mishibinijima: (u/i) pizza knife and then (u/i) that pizza knife

Sgt. S. Cooper: uhmm

Levi Mishibinijima: you know (u/i)

Sgt. S. Cooper: uhmm

Levi Mishibinijima: and then I left and then (u/i)

Sgt. S. Cooper: uhmm so you were explaining to me that you felt something overcome with you you’re describing a flame that entered your body

Levi Mishibinijima: yeah it was like not a flame but it was like

Sgt. S. Cooper: okay so what makes you decide to go over there

Levi Mishibinijima: nothing

Sgt. S. Cooper: nothing you just decide to go check it out or like how did you end up over there

Levi Mishibinijima: I ended up there before (u/i)

Sgt. S. Cooper: uhmm

Levi Mishibinijima: (u/i) but (u/i) being hurt on the floor (u/i) and my spirit on my dream that was my spirit (u/i)

Sgt. S. Cooper: uhmm okay so

Levi Mishibinijima: but that was that was like four three or four years ago

Sgt. S. Cooper: uhmm so going back to the pizza you’re having pizza and then at what point do you decide to go next door

Levi Mishibinijima: I didn’t decide

Sgt. S. Cooper: you didn’t decide how did you end up there

Levi Mishibinijima: I don’t know I just hang out with Dorian

Sgt. S. Cooper: you’re just hanging out with Dorian

Levi Mishibinijima: yeah

Sgt. S. Cooper: what were you guys talking about

Levi Mishibinijima: nothing we just (u/i)

Sgt. S. Cooper: uhmm so you guys are watching TV flipping through the channels and then at some point you end up over next door right

Levi Mishibinijima: yeah

Sgt. S. Cooper: can you tell me why you went next door

Levi Mishibinijima: I don’t know I couldn’t

Sgt. S. Cooper: can you tell me what you saw and what next door

Levi Mishibinijima: I didn’t see anything

Sgt. S. Cooper: okay so earlier you said that you saw some people over there

Levi Mishibinijima: yeah I seen somebody else I think

Sgt. S. Cooper: uhmm

Levi Mishibinijima: Mike and some dude

Sgt. S. Cooper: you saw Mike and some dude and then you decide to go over and talk to them is that what happened or

Levi Mishibinijima: yeah then I seen my uncle Theodore

Sgt. S. Cooper: you saw your uncle where is he

Levi Mishibinijima: he was coming outside the house with his daughter

Sgt. S. Cooper: uhmm who is his daughter

Levi Mishibinijima: I don’t know them (u/i) well I did before but I never really talk to them

Sgt. S. Cooper: okay so you told me earlier that when you went over to where your uncle Mike lives and there’s some dude you said that you could hear voices

Levi Mishibinijima: yeah

Sgt. S. Cooper: can you tell me what those voices were telling you

Levi Mishibinijima: (u/i) they’re but they’re like mind communicating to me (u/i)

Sgt. S. Cooper: okay and who was doing that to you

Levi Mishibinijima: I don’t know

Sgt. S. Cooper: and you described to me again what ah Mike’s demeanour was toward you

Levi Mishibinijima: he was mean

Sgt. S. Cooper: he was mean to you

Levi Mishibinijima: yeah

Sgt. S. Cooper: okay how did he act when he saw you

Levi Mishibinijima: (u/i) he knew that that he did something wrong but didn’t want to tell me because

Sgt. S. Cooper: uhmm

Levi Mishibinijima: I thought maybe he would know that I would know about it that my father was (u/i)

Sgt. S. Cooper: uhmm

Levi Mishibinijima: my dad is (u/i) my dad is (u/i) I love my father

Sgt. S. Cooper: uhmm

Levi Mishibinijima: (u/i)

Sgt. S. Cooper: uhmm

Levi Mishibinijima: I should’ve never went to him there they were drinking

Sgt. S. Cooper: uhmm

Levi Mishibinijima: (u/i) alcohol (u/i) drink (u/i) over there

Sgt. S. Cooper: uhmm

Levi Mishibinijima: (u/i) I went there he probably cause my body is like real weak (u/i) it’s like alcohol and drugs

Sgt. S. Cooper: uhmm

Levi Mishibinijima: that (u/i) that like (u/i)

Sgt. S. Cooper: yeah

Levi Mishibinijima: like my body gets taken over by by ah (u/i) like that (u/i)

Sgt. S. Cooper: uhmm so were you on alcohol yesterday

Levi Mishibinijima: (u/i)

Sgt. S. Cooper: were you on drugs

Levi Mishibinijima: (u/i) I just (u/i) my auntie and had a beer there

Sgt. S. Cooper: so you’re over there and you’re talking and you can hear these voices and you’re saying that there’s some mind control going on

Levi Mishibinijima: yeah Amanda could do that too

Sgt. S. Cooper: who is Amanda

Levi Mishibinijima: Amanda Mandamin (u/i) the mind telling me (u/i)

Sgt. S. Cooper: uhmm

Levi Mishibinijima: again some kind of power that he can mind control

Sgt. S. Cooper: uhmm

Levi Mishibinijima: but with the (u/i)

Sgt. S. Cooper: uhmm

Levi Mishibinijima: (u/i) my mom before (u/i)

Sgt. S. Cooper: you want to do anything else to Mike

Levi Mishibinijima: (sniff) no not (u/i)

Sgt. S. Cooper: have you ever hurt anybody else

Levi Mishibinijima: no (u/i) no

Sgt. S. Cooper: no so um you said you grabbed the knife from you grandma’s kitchen

Levi Mishibinijima: yeah

Sgt. S. Cooper: can you describe that knife to me

Levi Mishibinijima: it’s silver

Sgt. S. Cooper: okay

Levi Mishibinijima: yeah

Sgt. S. Cooper: how long was it

Levi Mishibinijima: (u/i)

Sgt. S. Cooper: uhmm and where did you hide that knife on you did you

Levi Mishibinijima: it fell out of my pocket or something

Sgt. S. Cooper: it fell out of your pocket when would that have happened

Levi Mishibinijima: I don’t know probably when (u/i)

Sgt. S. Cooper: uhmm which pocket did you put it in

Levi Mishibinijima: left

Sgt. S. Cooper: your left pocket are you left handed or are you right handed

Levi Mishibinijima: I’m left handed

Sgt. S. Cooper: are you

Levi Mishibinijima: (u/i) I usually stay at my mom’s place (u/i) it might be up there

Sgt. S. Cooper: yeah (u/i) they take you to the psyche ward is that what you said

Levi Mishibinijima: (u/i) probably where I’ll have to go

Sgt. S. Cooper: like everything that we talked about is recorded okay and I also talked to you in your initial arrest you had to you could talk to a lawyer and stuff like that did you talk to a lawyer

Levi Mishibinijima: I talked to duty counsel

Sgt. S. Cooper: you talked to duty counsel do you remember his name

Levi Mishibinijima: no I don’t

[26] While the Court does have the benefit of the transcript of this interview conducted with Levi Mishibinijima on August 15, 2017, it must be noted that the best evidence would have been the video and audio of this statement. There are many inaudible utterances as noted in the transcript, which makes it very difficult to understand the comments made by both parties. In addition, it would have been preferable to see Mr. Mishibinijima as he was making these comments. At the very least, it would have been preferable to hear Mr. Mishibinijima make these comments as opposed to simply reading the comments.

[27] Further, it is quite shocking to the Court that Dr. Eayrs did not have the benefit of the video recording to form her opinion. This interview commenced at 2:15 a.m. on August 15, 2017. The stabbing occurred on August 14, 2017 and Mr. Mishibinijima was arrested at 9:34 p.m. on that date. A video of Mr. Mishibinijima at 2:15 a.m., less than 5 hours after his arrest, would seem to be an important piece of information for both Dr. Eayrs to see and for the Court to see. However, this evidence was not provided to either the doctor or the Court.

Analysis

[28] Section 16 of the Criminal Code governs the defence of mental disorder and states as follows:

16(1) 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 knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

[29] No person who committed an offence while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong may be convicted. The test is a legal test, not a medical test.

[30] Mental disorder means a “disease of the mind”, as stated in Section 2 of the Criminal Code. A “disease of the mind” includes any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states. See R. v. Cooper, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149.

[31] In using the two words “appreciating” and “knowing”, Parliament clearly intended that different tests be used. The verb “know” has a positive connotation requiring a base awareness, while “appreciate” involves a further step of analysis of knowledge or experience: See R. v. Barnier, 1980 CanLII 184 (SCC), [1980] 1 S.C.R. 1124

[32] It is conceded that Mr. Mishibinijima did appreciate the nature and quality of the act, and this is therefore not the focus of the analysis in this case. It is argued that Mr. Mishibinijima committed an act while suffering from a mental disorder that rendered him incapable of knowing that the act was wrong.

[33] Knowledge in this circumstance does not require appreciation. One would assume that the language in the section is deliberate in that this second branch of the inquiry only refers to “knowing that it was wrong”. As referred to above, this is a base awareness.

[34] Wrong means “morally wrong” and not simply “legally wrong”. The court must determine whether the accused, because of a disease of the mind, was rendered incapable of knowing that the act committed was something that he ought not to have done. The inquiry cannot terminate with the discovery that the accused knew that the act was contrary to law. A person may know that the act was legally wrong and yet, by reason of a disease of the mind, be incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of reasonable men and women. See: R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303 at para 101, 108 and 111

[35] In R. v. Oommen, McLachlin J. for the Court provided further guidance on this point and stated in part as follows:

[21] A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.

[22] The wording of s. 16(1) suggests this result. It proclaims that the focus is not a general capacity to understand that the act, say of killing, is wrong, but rather the act “committed” or omission “made”, i.e. the particular act or omission at issue in the criminal proceedings.

[26] The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental disfunctions; as the following passages indicate these include at a minimum the states to which the psychiatrists testified to in this case – delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing. See: R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507

[36] Further in Oommen, McLachlin J. distinguished between the person who is unable to know that the act is wrong from a person who is able to know the act is wrong but chooses to do it anyway. At para 32:

[32] Finally, it should be noted that we are not here concerned with the psychopath or the person who follows a personal and deviant code of right and wrong. The accused in the case at bar accepted society’s views on right and wrong. The suggestion is that, accepting those views, he was unable because of his delusion to perceive that his act of killing was wrong in the particular circumstances of the case. On the contrary, as the psychiatrists testified, he viewed it as right. This is different from the psychopath or person following a deviant moral code. Such a person is capable of knowing that his or her acts are wrong in the eyes of society, and despite such knowledge, chooses to commit them. To quote Herbert Fingarette, The Meaning of Criminal Insanity (1972), at pp. 200-201:

It should be evident that we are not here reverting to the thesis that “knew it was wrong” means “judged it wrong in the light of his own conscience”….such a definition could never be acceptable in a viable criminal law. As the courts have rightly insisted, it is a public standard of wrong that must be used, whether public law or community morality.

What we are saying here is that “knowing the nature and quality of the act or that it is wrong” in the context of insanity (and thus, rationality) means “having the capacity to rationally assess – define and evaluate – his own particular act in the light of the relevant public standards of wrong”…

The preceding comments should not be taken to mean that a person is not responsible if he holds irrational beliefs, for that is not the case….The point is that if the person has a mental makeup which is such that he lacks even the capacity for rationality, then responsibility is vitiated. If he has the capacity but simply fails to use it, responsibility is not precluded.

[37] It is not sufficient to decide that the conduct was as a result of the person’s delusions. This would not end the inquiry. Even if the conduct was motivated by a delusion, the accused is criminally responsible if she or he was capable of knowing, in spite of the delusion, that the conduct in the particular circumstances would have been morally condemned by reasonable members of society: See R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68 at para 21. Certainly, these comments would apply equally if, rather than delusions, the person was suffering from auditory hallucinations.

[38] In R. v. Dobson, 2015 ONSC 2865, Justice Watt stated three helpful reminders about the case law on this prong of the s. 16 test:

124 First, the inability of a person accused of crime to exercise the same degree of judgment as would be expected of a person unencumbered by mental disorder is a long way removed from the incapacity to know that a person's actions are wrong according to the normal standards of members of the community: R. v. Guidolin, 2011 ONCA 264 (Ont. C.A.), at para 22.

125 Second, a subjective belief by an accused that his or her conduct was justifiable will not exempt him or her from criminal responsibility even if his or her personal beliefs were driven by a mental disorder, as long as she or he retained the capacity to know that the conduct would be regarded as wrong in the circumstances by reasonable members of society: R. v. Ross, 2009 ONCA 149 (Ont. C.A.), at para 27; Chaulk , at para 98; and R. v. Woodward, 2009 ONCA 911 (Ont. C.A.), at para 6.

126 Third, to determine whether an accused's mental disorder rendered him incapable of knowing that his conduct was wrong in the circumstances, triers of fact are not bound by the opinions of experts. Rather, the determination is to be made on the basis of the evidence as a whole. Expert testimony falls to be evaluated like the testimony of any other witness: Ratti, at p. 81. To be more specific, a trier of fact is entitled to reject expert evidence that an accused was capable of knowing that his or her conduct was wrong and to conclude from an accused's previous and contemporaneous conduct and utterances that the accused was or was not criminally responsible: Kirkby, at p. 49; Attorney-General for South Australia v. Brown, [1960] A.C. 432 (Australia P.C.), at p. 452.

[39] The onus and burden of proof in this case lies on Mr. Mishibinijima on a balance of probabilities, given that he has raised the issue with the Court.

[40] The question to be answered is whether Mr. Mishibinijima has demonstrated on a balance of probabilities that he should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.

[41] I find the evidence in this case lacking in several respects.

[42] Based on the totality of the evidence that I do have, it is somewhat difficult for me to say that Mr. Mishibinijima was, at the material time, suffering from a mental disorder. While I appreciate that Dr. Eayrs has attempted to provide evidence in this regard, I find that her evidence is somewhat limited in the sense that she was not provided with any medical background or information from other collateral sources such as family or friends. While I understand from her evidence that it was difficult at the beginning of Mr. Mishibinijima’s admission to get reliable information from him, this changed at some point. The Court is left questioning why this was never followed up on prior to the hearing on January 30, 2018.

[43] Further, Dr. Eayrs came to her initial conclusions in the report without the benefit of having Mr. Mishibinijima’s statement to the police. She did subsequently review the transcript of that interview and testified that it supported her earlier conclusions. Again, the Court is left questioning why the video-taped statement was not provided to Dr. Eayrs. One would think that this would provide better evidence to Dr. Eayrs, especially because the transcript in this case contained a number of inaudible notations.

[44] Further, I do not believe that Dr. Eayrs had access to other potentially helpful pieces of information, such as:

(1) Disclosure, including witness statements, officer’s notes, relevant videos and audios, crime scene video, or forensic reports.

(2) Mr. Mishibinijima’s criminal record (the Criminal History section on page 2 and 3 of the psychiatric assessment only stated: Mr. Mishibinijima was detained at the Sudbury jail in 2012 and on four occasions in 2013. Charting from the 2017 detention at the Sudbury Jail refers to a past incident in which he may have sexually abused a sister. This report remains uncorroborated)

(3) Mr. Mishibinijima’s probation and previous supervision records, if they exist.

[45] One would think that a medical professional would need as much detail and the best information available about the person’s background in order to be able to conclude what the person’s state of mind was at the material time. I would say this is especially so given the fact that experts, such as Dr. Eayrs, are reluctant to provide certainty when attempting to describe someone’s mental state at a specified time in the past. A person’s past mental state cannot be precisely known, therefore, the expert should be extremely thorough and consider all avenues prior to coming to an opinion.

[46] In my view, the assessment and conclusions in this case rely on inadequate information.

[47] Further, even if the Court were to find, on a balance of probabilities, that Mr. Mishibinijima suffered from a mental disorder at the relevant time of the index offence, the existence of a mental disorder is not synonymous with lack of criminal responsibility. The existence of a mental disorder, as defined in section 2 of the Criminal Code, is a necessary condition for a successful defence under section 16, but it is only one of the necessary conditions. The presence of the mental disorder and, more specifically, the symptoms of the mental disorder, need to have affected the person at the critical time of the index offence in order for the Court to say that the mental disorder deprived the person of the capacity of knowing the act was wrong.

[48] In order to draw out information with respect to the person’s state of mind at the relevant time, and specifically to attempt to uncover whether or not the person had the capacity of knowing the act was wrong at the relevant time, the Court would expect the psychiatric assessment to delve into issues such as:

(a) Details of the person’s mental state leading up to the index offence;

(b) A history of the person’s relationship with the complainant, including any potential motive to commit the act in question;

(c) Information regarding how the act occurred, including any attempt to evade police or avoid detection;

(d) Where there are delusions or auditory hallucinations, a consideration of whether the person has experienced these symptoms in the past and has the person been able to overcome the influence of such symptoms in the past;

(e) Information as to whether the person attempted to stop themselves from the act they committed;

(f) Information from the person regarding why they did what they did, what the consequences would be if they did or did not do the act, was the person concerned about the consequences, what authority were they acting on to commit the act, and the person’s opinion as to whether or not the act is legal.

While this list is not meant to be exhaustive, it should offer some guidance for assessments geared toward a determination of criminal responsibility. For further guidance see: Bloom, Hy and Schneider, Richard D. Mental Disorder and the Law : A Primer for Legal and Mental Health Professionals, Toronto: Irwin Law, 2017, pp. 173-175.

[49] There is certainly some evidence that Mr. Mishibinijima was hearing voices on the day in question and that those voices were telling him to commit the act. However, as previously stated, it is not sufficient to decide that the conduct was as a result of the person’s auditory hallucinations. This would not end the inquiry. Even if the conduct was motivated by a command auditory hallucination, the accused is still criminally responsible if she or he was capable of knowing, in spite of the command auditory hallucination, that the conduct in the particular circumstances would have been morally condemned by reasonable members of society.

[50] In my view, the evidence presented to this Court does not establish on a balance of probabilities that Mr. Mishibinijima was incapable of knowing that his conduct was morally condemned by reasonable members of society. In my view, the evidence points to the opposite conclusion:

(1) Included in the agreed statement of facts are the following pieces of evidence:

(a) There was evidence that Mr. Mishibinijima fled the scene of the crime.

(b) Mr. Mishibinijima blurted out that he was a murderer and that he killed his brother (the victim Mandamin) as the victim had killed his father. This would suggest a revenge action.

(c) Tim Pangowish heard Mr. Mishibinijima say “I know you killed my father”. This would also suggest a revenge action.

(d) Mr. Mishibinijima told Sgt Cooper that his father was telling him that the victim had hung him and that he needed to be free of him. Then he went on to say that the victim said something “like I killed your father or your father’s dead in your mind control”. He could hear his dad speaking. Then Levi Mishibinijima said “all I could hear is go ahead Gwiss stab him get it over with and leave and something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him.” This also suggests a revenge action. The statement “something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him” does not indicate that Mr. Mishibinijima was deprived of his ability to make a rational choice or to know right from wrong.

(2) Included in the transcript of Mr. Mishibinijima’s statement to the police on August 15, 2017 are the following comments which lead this Court to believe that he was able to make a rational choice and that he knew this act was morally wrong:

(a) Yeah (u/i) get my dad involved in drugs you know

(b) (u/i) he wouldn’t look at me he’d look away like….then he’d something like I killed your father or your father’s dead (u/i) in your mind control…..and then he’s (u/i) like he wasn’t there man

(c) [Where did you stab him?] In the neck somewhere or in the head and then I ran (u/i) and then just like and I ran back I guess and I told I told the (u/i) that he hung him….my father was telling me that.

(d) but my father was telling before that him and Mike had a fight before (u/i)….jealous of him Mike (u/i) it’s like (u/i)

(e) yeah my dad’s like traditional medicine….he followed the traditional way medicine

(f) [….where did the knife come from]…..at my grandma’s….it was a wooden knife….[where is the knife now]…..I don’t know I threw it away somewhere it must’ve fell…..I don’t know it’s gone it’s gone.

(g) [Okay so what makes you decide to go over there…] nothing […..nothing you just decide to go check it out or like how did you end up over there…..] I ended up there before (u/i)….but (u/i) being hurt on the floor (u/i) and my spirit on my dream that was my spirit (u/i)….but that was that was like four three or four years ago.

(h) [You saw Mike and some dude and then you decide to go over and talk to them is that what happened or] ….yeah then I seen my uncle Theodore.

(i) [Can you tell me what those voices were telling you]…..(u/i) they’re but they’re like mind communicating to me (u/i) [….okay and who was doing that to you…..] I don’t know

(j) [and you described to me again what ah Mike’s demeanour was toward you] he was mean…. [he was mean to you….] yeah

(k) (u/i) he knew that that he did something wrong but didn’t want to tell me because I thought maybe he would know that I would know about it that my father was (u/i)….my dad is (u/i) my dad is (u/i) I love my father

(l) I should’ve never went to him there they were drinking….(u/i) alcohol (u/i) drink (u/i) over there…(u/i) I went there he probably cause my body is like real weak (u/i) it’s like alcohol and drugs….that (u/i) that like (u/i)….like my body gets taken over by ah (u/i) like that (u/i)

[51] A person may well be aware that an act is usually contrary to societal standards and therefore wrong but, by reason of a mental disorder, may be incapable of knowing that the act is wrong in the particular circumstances in which the person finds himself. However, if, notwithstanding a mental disorder, a person has the capacity to know that his conduct is morally wrong, he is not exempt from criminal responsibility.

[52] In my view, there is ample evidence to demonstrate that Mr. Mishibinijima committed this act because he believed that the victim murdered his father. After committing this act, he ran and went to a friend’s house. As stated earlier, the crux of the inquiry is whether Mr. Mishibinijima lacked the capacity to rationally decide whether the act was right or wrong and hence to make a rational choice about whether to do it or not. I am not convinced that the auditory hallucinations Mr. Mishibinijima may have been experiencing made him perceive a wrongful act as right or justifiable. I am not convinced, on a balance of probabilities, that any disordered condition of his mind deprived him of the ability to know right from wrong.

[53] A trier of fact is entitled to reject expert evidence that a person was incapable of knowing that his or her conduct was wrong and to conclude on the basis of previous and contemporaneous conduct and statements that the person was criminally responsible. Based on the facts of this case, the court finds that Mr. Mishibinijima had the capacity to know the act was wrong but simply failed to use that capacity. Responsibility is not excused in these circumstances.

[54] In the result, I am satisfied that Levi Mishibinijima is criminally responsible for the aggravated assault on Joseph Michael Gerald Mandamin. A finding of guilt and conviction will be recorded on the offence of aggravated assault.

Released: February 13, 2018

Signed: Justice V. Christie