Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Frederick Kindersley
Before: Justice B. Oldham
Heard on: July 28 & 30, 2020
Reasons for Judgment released on: August 5, 2020
Counsel:
- Radbert Pe, for the Crown
- Ben Prichard, for the Defendant
Judgment
[1] Application for Mental Assessment
1This is an application by the Crown under s. 672.11(b) of the Criminal Code (the "Code") requesting that the Court order an assessment to determine whether, at the time of the offences, Mr. Kindersley was suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) of the Code.
2Counsel for Mr. Kindersley had not put Mr. Kindersley's mental capacity for criminal intent into issue and is opposing this application.
3The application was heard virtually on consent of all parties.
Background
4Mr. Kindersley is currently facing the following charges: 6 counts of break and enter with the intent to commit an indicatable offence; 10 counts of fail to comply with a probation order; resist peace officer; theft under $5,000 and mischief under $5,000. The charges relate to incidents alleged to have occurred between late fall 2019 and May 15, 2020.
5Mr. Kindersley was arrested on May 15, 2020 and has been in custody since his arrest.
Position of the Parties
6It is the Crown's position that there are reasonable grounds to believe that an assessment is necessary to determine whether at the time of these offences, Mr. Kindersley suffered from a mental disorder which rendered him incapable of knowing that his actions were wrong. Specifically, the Crown is relying on the second branch of subsection 16(1) of the Code.
7Mr. Kindersley has not been subject to a fitness assessment and has never been found unfit to stand trial.
8Counsel for Mr. Kindersley submits that the Crown has not met the onus necessary to allow the court to order an assessment. Counsel focuses on the evidence in respect of these specific acts and any mental illness at the time of these events. Counsel acknowledges that there is some evidence that may be interpreted as a mental illness, but not all mental illnesses render a person incapable of knowing that their actions were wrong. While there is some evidence of bizarre behavior, counsel submits that there is no evidence to suggest that Mr. Kindersley does not appreciate the nature and quality of his acts. Counsel relies on the apology note that Mr. Kindersley wrote the Reburns (Exhibit 3(c)) acknowledging damage to the cabin and theft of food and incense as evidence that he understands that his actions were wrong.
The Evidence
9The Crown called five witnesses; Mr. Kindersley's parents, Sarah and Rupert Kindersley, Mr. Kindersley's first cousin once removed, Caitlin Forrest, Mr. Kindersley's second cousin once removed, Phillip Graham and Dr. Shahid, a psychiatrist at Waypoint. The Crown also filed, on consent of the Defence, a copy of the Crown synopsis and witness statements relating to the current charges before this court and the Crown synopsis of an incident in Thunder Bay on February 8, 2018. The incident in Thunder Bay involved an allegation of theft of a vehicle which was operated without a license, without insurance and while on suspension resulting in charges under the Highway Traffic Act, Compulsory Insurance Act and the Code. Some or all of these charges may still be before the courts.
10The relatives who testified have all known Mr. Kindersley since birth and provided observational evidence of his behavior and actions over the years. None of the witnesses have been in contact with Mr. Kindersley since this Court's Probation Order dated August 15, 2019, with the exception of Mr. Graham who saw and met with Mr. Kindersley in the fall/winter of 2019.
11To put the observations in context, it is important to understand the family background and connection to Good Cheer Island. All of the charges arise from alleged incidents on Good Cheer Island on Georgian Bay. Good Cheer Island has been in the family since 1881. The Island is owned by a trust which includes 15 other Islands on Georgian Bay. Ownership in the trust can never be sold and can only pass on to a direct descendant. Mr. Kindersley's father is an owner and has a cabin on Good Cheer Island. Some owners, such as Mr. Graham have interests in sites on other Islands which do not have structures on them.
12Mr. Kindersley is 33 years of age and relies on his parents for financial support. His mother testified that he moved out of the house to work in Calgary with Mr. Graham for a short period of time, but returned and has otherwise lived with them in Toronto during the winters and on Good Cheer Island in the summers. There is no question that all of the family members who testified have a special affinity for Good Cheer Island. It is a place where they have spent a considerable amount of time and which provides an opportunity for gathering and respite. One of the conditions in Mr. Kindersley's August 15, 2019 Probation Order prohibits him from being within 100 meters of any place where he knows his parents frequent or any place he knows them to be.
13Mr. Kindersley's father describes his son as being obsessed with Good Cheer Island and wanting to spend as much time there as possible. He provided examples of times when Mr. Kindersley would put his life at risk by coming up in the winter and crossing the ice when it was not safe. He suggested that it was almost a manic desire to be on and to protect the Island. He described stashes of hunting knifes, spears and swords that Mr. Kindersley Jr. stored on the Island.
14Mr. Kindersley Sr. believes that his son lives in a bit of a fantasy world which requires that he rearrange facts to fit his fantasy. He testified that his son has a hard time relating to women, shows complete disregard for other people's property and yet is very protective of his own belongings. He believes that his son turns on people who no longer fit his fantasy.
15Mr. Kindersley Sr. also described an incident when his son slapped his face and pushed his mother. He believes that these actions occurred because he refused to give his son something that he wanted – a machete, or his dog, Diva, for example. Other times, he attributes his son's bizarre behavior to his intentional deprivation of sleep over the course of several days. He explains that his son makes less sense, and sometimes becomes violent, during these periods. By way of example, he described an incident in which Mr. Kindersley Jr. took off in the middle of the night in early spring when the water is very cold, in a boat with a sword to go after Zog. Zog is a First Nations man from Wasauksing who had been a friend of Mr. Kindersley Jr, but was someone whom Mr. Kindersley Jr. believed presented a threat to Good Cheer Island at the time. Mr. Kindersley Sr. did not observe the incident himself, but testified that his son told him the next day that he had lost his sword, abandoned his boat when it started to take on water and swam to shore. Mr. Kindersley Sr. was not sure about the timing, but thought that it may have been in June 2019.
16Mr. Kindersley Sr. explained that he was constantly fixing doors in his home in Toronto after his son had punched holes in the wall or slammed the door. He attributes these acts to a shift in Mr. Kindersley Jr.'s mind or fantasy, unable to explain any other reasons for a change in behavior which he described as otherwise fine and even kind.
17Mr. Kindersley's mother described two incidents: one in 2011 and one in 2019 when Mr. Kindersley had become aggressive with her and with her husband. She described unusual behavior on the Island and times when she would describe her son as paranoid or lost in a video world.
18In 2017 Mr. Kindersley was sent to Waypoint following unusual behavior which included spreading tomato ketchup on the floor, writing a note about an "Indian Plan", defacing a backgammon game and slapping his father in the face.
19Dr. Shahid was the psychiatrist who diagnosed Mr. Kindersley in 2017. Mr. Kindersley was sent to Waypoint on a Form 1 on September 10, 2017. Dr. Shahid made a tentative diagnosis of Unspecified schizophrenia spectrum and other psychotic disorders and adult anti-social disorders. Dr. Shahid testified that a tentative diagnosis is given when a psychiatrist wishes to investigate whether the behavior comes from some form of psychotic disorder. The tentative diagnosis of antisocial behavior was based upon the observations of the staff at the West Parry Sound Health Center ("WPSHC") who made the referral.
20Mr. Kindersley was made voluntary by Dr. Shahid and was released under a Form 5 on September 11, 2017, after being at Waypoint for only one day. During his brief stay, neither Dr Shahid nor any of the nurses or staff at Waypoint observed any symptoms or signs indicative of mood disorders or psychosis. He was reported to have done well over night. He slept well and the staff could not provide any reason to keep him. Dr. Shahid testified that he reassessed Mr. Kindersley on September 11, 2017 before making him voluntary and noted that he showed no signs that he was responding to internal stimulus such as hallucinations. He did not appear to be delusional or suffering from paranoid thoughts. There was no evidence of self-harm, aggression to others or his environment and he was able to care for himself. In fact, Dr. Shahid testified that based on his reported history of substance abuse, he thought that this was probably an issue of substance abuse and that Mr. Kindersley was good by the time he observed him.
21After the incident in 2019, Mr. Kindersley was charged and ultimately pled guilty to two counts of assault, three counts of breach of undertaking; three counts of theft under $5,000 and one count of fail to appear.
22Caitlin Forrest testified about her relationship with Mr. Kindersley. She said that they did everything together and that he was her best friend until an incident with her husband a couple of years ago. Mr. Kindersley apparently observed a cold sore on Ms. Forrest's husband and became obsessed with the notion that he was diseased and that he would infect her and others on the Island. He then made numerous racist and hurtful comments. Ms. Forrest described Mr. Kindersley's treatment of her as protective and at times a little creepy.
23Ms. Forrest believed that Mr. Kindersley was unable to see the next step in life. He was never able to create a life in the city. He stayed with his parents and saw his role as the protector of Good Cheer Island. She described how he could not fit in and how his views did not jive with the regular world. He could not connect with women and his behavior had scared some of her friends. In her view, Mr. Kindersley took extraordinary risks to get to Good Cheer Island in the winter when it was not safe. She described how he would try to live off the land – staying in tree forts, scavenging food from cabins and creating weapons – spears and sharpened sticks – as if he was planning for a war.
24Ms. Forrest was the recipient of several emails from Mr. Kindersley which she described as nonsensical, sometimes threatening and often hurtful. She never told anyone about the emails until these proceedings and explained how she would always forgive and 'justify Freddie's crazy behavior' until the incident with her husband.
25Mr. Graham confirmed that he had a good relationship with Mr. Kindersley until a couple of years ago. He described how he hired him and trusted him to operate his boat on Georgian Bay. He only became concerned about Mr. Kindersley's behavior after his visit from December 2018 to February 2019. Mr. Kindersley had come to Mr. Graham's home in Calgary in an effort to find work. During this period Mr. Graham observed some concerning behavior. Mr. Kindersley described conspiracies and believed that the police and natives were after him. He was arrested following an incident in Banff with a female police officer to whom he delivered a Valentines card. Mr. Graham ultimately took Mr. Kindersley to the bus station in Edmonton on February 23, 2019 to return him to Ontario. He only saw him on one other occasion. Mr. Kindersley was at the marina in Parry Sound that Mr. Graham uses to access the islands. He advised Mr. Graham that he was no longer allowed to be in the area. Mr. Graham took him for lunch and then to the bus stop to return him to Toronto. Mr. Graham could not recall the specific date that they met but indicated that September 2019 felt right. When asked if it could have been November, he replied that he had no recollection.
26Mr. Graham was aware of at least two tree forts that Mr. Kindersley had built on Good Cheer Island. Mr. Graham believed that he used the tree forts as observation posts and to hid from others on the Island. He believed that Mr. Kindersley felt he was at war with people, but noted that he had never seen him use any of the bows and arrows to threaten anyone and that he believed that they were primarily used to hunt. While he did not have extensive involvement with Mr. Kindersley on this issue he knew and told Mr. Kindersley that the maintenance of these tree forts did not help his standing on the Island.
Law and Analysis
27This application is made by the Crown under the following sections of the Code:
Section 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:
(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)
Section 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.
Section 672.12(2) — Where the prosecutor applies for an assessment in order to determine whether the accused is unfit to stand trial…
Section 672.12(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 issues; 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.
Section 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.
28This is not a request for an assessment for the purposes of determining whether Mr. Kindersley is fit to stand trial. There has not been a trial and there is no finding of guilt. This is a request by the Crown to determine whether the court should order an assessment to determine whether Mr. Kindersley was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility.
29A plain reading of the Code demonstrates Parliament's intention to make access to a Not Criminally Responsible ("NCR") assessment more challenging when requested by the Crown than the defence. When the prosecutor, rather than the defence puts the accused mental capacity for criminal intent into issue, there is an additional hurdle before an assessment can be ordered. The prosecutor must satisfy the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
30As noted by Justice Brown in R. v. Pancer, 2018 ONCJ 355 ("Pancer"), the test is two-fold. In order for the court to order an NCR assessment at the request of the Crown, there must be reasonable grounds to believe that the person was suffering from a mental disorder and reasonable grounds to doubt criminal responsibility arising from suffering from a mental disorder at the time of the allegations (see Pancer, para 13).
31The Code is silent as to what is meant by "reasonable grounds"…"no particular evidence is necessary" as long as the basis for the belief is "clear and plainly appears on the record of proceedings" (See: Pancer at para 22).
32The Crown submits that it is a low threshold and relies of the observational evidence of the witnesses, the incident report from Thunder Bay in 2018 and the referral to Waypoint in 2017 to ground its request. It is this constellation of evidence, the Crown submits, that forms the basis of the reasonable grounds.
33In support of its position that this is sufficient evidence, the Crown relies on R. v Capano, 2014 ONCA 599 ("Capano") and R. v. Goudreau, 2015 ONSC 6758 ("Goudreau").
34At para 31, in Goudreau the court refers to R. v. Sealy, 2010 QCCQ 4504 (C.Q.), which comments on the term "reasonable grounds" and the word 'necessary" in the context of a s. 672.11 application.
"I am not obligated to determine if the applicant's case for an assessment order is superior to the Crown's case to dismiss it. All I have to do, instead, is determine if there are tangible grounds or arguments that indicate that an assessment order is called for."
35The trial judge's decision to order an NCR assessment in Capano was upheld by the Court of Appeal after considering a constellation of evidence. At para 32 Justice Epstein notes:
"There was evidence available to the trial judge relevant to the determination of whether there were reasonable grounds to doubt that Mr. Capano was criminally responsible for the offence, on account of mental disorder. The trial judge has observed Mr. Capano's outbrusts in the courtroom. In addition, there was the evidence of the two probation officers about their meeting with Mr. Capano – his response to the instruction to attend CAMH and his behavior during the meeting – as well as the pre-sentence report and the report of Dr. Gojer that pre-dated the probation order."
36The probation officer testified that Mr. Capano explained that he refused to attend at CAMH as set out in the probation order because he believed the probation order to be invalid as it was not signed by the trial judge and secondly, because he was of the view that the order was under appeal – neither assertion was accurate. The PSR and Dr. Gojer's report indicated that Mr. Capano suffered from a major mental illness for which he was refusing treatment, that he may be a serious risk to the public and that his family was afraid of him.
37In this case, Mr. Kindersley made several bizarre statements to the OPP in Thunder Bay such as that "he was royalty and wanted to speak to the Chief of Police. [He] believed that everything 'could get solved' if he could make a statement regarding 'an Indian trying to kill me'". He also made comments about being kicked off his island and noted that he had been in a mental institution which 'he beat'. These comments were followed and/or preceded by emails to Ms. Forrest about her 'Indian' husband. Mr. Kindersley left notes on the Island which were nonsensical. For example, the "Indian's Plan" set out in Exhibit 5(b).
38By contrast, however, we do not have an assessment or psychiatrist confirming a mental illness as was the case in Capano.
39The absence of a psychiatric assessment is not necessarily fatal. Justice Brown in Pancer grapples with how to determine whether there is reasonable grounds when there is no assessment and at paragraph 23 notes:
"It becomes almost a chicken and egg problem where the Crown seeks an assessment of this nature. For instance, there is no report in existence as to whether a person such as Mr. Pancer qualifies from a psychiatric perspective for an NCR defence related to the offences for which he has plead and been found guilty. That is because the court is examining the record of evidence before any such assessment is done."
40Like in Pancer, there is no assessment; only the Discharge Summary from Dr. Shahid dated September 11, 2017 (the "Summary"). The Summary predates and cannot speak to Mr. Kindersley's capacity at the time of the allegations. At most there is a tentative diagnosis of unspecified schizophrenia spectrum and other psychotic disorder and adult antisocial behavior. Dr. Shahid describes the diagnosis of unspecified schizophrenia spectrum and other psychotic disorder as one typically given in order to investigate further whether the behavior comes from some form of schizophrenia or some other psychotic disorder. His evidence, however, is that neither he, nor any of his staff, observed behavior which would support or indicate a need for further investigation. The tentative diagnosis of adult antisocial behavior was based upon the reports from the physicians and staff at the WPSHC.
41The Crown submits that the hearsay evidence upon which Dr. Shahid gave his opinion is in the Summary and is consistent with the evidence provided by the observational witnesses in this hearing. The Summary reports the "presenting problems" as being a threat/danger to others and delusions; specifically, that the "patient was threatening to kill his cousin in law in self defence as he believes this man tried to kill him and is a "mad scientist". The patient reported as being paranoid." The Summary also notes that there were no previous psychiatric admissions, no suicide attempts, only mental health diversion through court in 2014. Recommended medications were denied at that time. The patient was not on any medications and had no current mental health follow up at the time of the assessment. There was a history of polysubstance abuse.
42In the discharge section of Dr. Shahid notes:
"Patient was admitted on a Form 1 for assessment and did not show any objective evidence of psychosis, mania or depression. He denied any suicidal or homicidal ideations and expressed remorse over his actions. He said he parents could pick him up today on their way from their cottage in Parry Sound. He wished to be released and the Treatment Team had no concerns. Patient was made voluntary and discharged."
43No psychiatric medications were recommended and no follow up was recommended other than through his family doctor. Dr. Shahid noted that any antisocial behavior which led to Form 1 from the WPSHC may have been the result of substance abuse.
44Dr. Shahid's report dates back to September 10, 2017. Just as an assessment of a mental disorder in 2017 would not necessarily mean that Mr. Kindersley suffers from a mental disorder at the time of these offences, the absence of a mental disorder in 2017 does not mean that he was not suffering from a mental disorder at the time of these events. The difficulty here, however, is that there is no new or additional evidence in 2020 that was not present in 2017. As noted by the Crown, many of the concerns and observations of the witnesses were present in 2017. Ms. Forrest described that Mr. Kindersley was always 'bat shit crazy', but that she has always justified his behavior.
45Mr. Kindersley has been building forts, playing video games and making swords and weapons for years. A psychiatrist who testifies that in 2017 he observed no internal stimulus such as hallucinations, that he did not appear to be delusional or suffering from paranoid thoughts, that there was no evidence of self-harm, aggression to others or his environment and that he was able to care for himself, makes even a low threshold difficult to meet.
46Counsel for Mr. Kindersley submits that there is little or no evidence of observations around the time of the allegations. None of the witnesses had seen or talked to Mr. Kindersley since the fall of 2019. The allegations allegedly occurred over the winter of 2019 to spring of 2020.
47In Pancer, Justice Brown looks at the specific evidence that addresses the test in s. 672.12(3)(b) when the Crown brings the application for an assessment and notes at paragraph 40 that "Evidence of relevance would include observations and circumstances related to the time of the allegations." [Emphasis added]
48With respect to the allegations, the crown synopsis states that "at a point over the winter" and goes on to describe the basis of the allegations. For example"the accused broke into the cottage"; "the accused broke a window in an entry door"; "the accused spent many nights inside and cooked most of his meals here leaving a huge mess of dirty, damaged cookware and garbage"; "the accused took a portable radio"; "he stole food, wood and incense"; "he dismantled an exterior wall".
49Counsel for Mr. Kindersley submitted that all of these actions may be explained by the need to sustain himself through the winter on a remote island and have nothing to do with a mental disorder or an inability to understand that his actions were wrong.
50The Crown submits that we should not apply a temporal exclusion and that the court must look at all of the objective factors, but if the focus is on the evidence before the court at the time of the specific allegations, he relies on Exhibit 3 with respect to evidence related to the specific allegations.
51Exhibit 3(a) is the crown synopsis and general report. The report describes damage to cabins and alleges that Mr. Kindersley resisted arrest. There is no evidence, however, in the synopsis, report or notes of the interviewing officer to suggest that Mr. Kindersley was presenting as delusional, paranoid or otherwise being in a psychotic state at the time of his arrest.
52Exhibit 3(b) is the witness statement from Robert Joy describing what was found in the main cabin. Some of the findings support the notion that "someone (presumably Mr. Kindersley) must have been here awhile given that they almost completed a 1000-piece jigsaw puzzle, the wood stove is full of ashes, candles have been consumed…". Other findings suggest more bizarre behavior. "There were numerous handmade weapons on display in the room where Robert Joy's three children sleep… There was a crowbar found hanging in the rafters next to an area where pillows and other materials had been assembled into a small 'perch/nest' above the door. In the kitchen, there was a large machete style knife and a super-soaker style water gun found on top of a cupboard."
53Exhibit 3 is the 'apology letter' which counsel for Mr. Kindersley relies upon as evidence that Mr. Kindersley understands the nature and consequences of his actions and understands that what he did was wrong.
54There are aspects of the letter which are bizarre and irrational. For example, it reads in part:
"For invasion of natives, police and old high school revals ways heavy on my mind. On that note you are rightful to try to protect Robbies girls form me for I am aggressive by nature and by my past."
55There are also aspects of the letter which appear to express an understanding of his actions. For example:
"Although I was there the whole endeveaur was uncomfotible & disturving to my very sole. I have taken wood, food & some of your incense for my cabin smells. No matter how much I try to fool myself I am in part to blame…"
56While this Exhibit is evidence relevant to the specific allegations, on its own it does not move the Crown's application from mere possibility to probability. More is required to establish that there are reasonable grounds to believe that Mr. Kindersley was suffering from a mental disorder and reasonable grounds to doubt criminal responsibility arising from suffering from a mental disorder at the time of the allegations.
57In R. v. Szostak, 2012 ONCA 503, the focus of the appeal was on whether the accused had ineffective counsel and issues around the NCR Hearing. In reviewing the decision by the trial judge to order an assessment, Justice Rosenberg notes that the assessment is an important step in the procedure in that "counsel's request for an assessment under s. 672.12 did prejudice the appellant since it set in motion the chain of events that led to the finding of NCRMD and indefinite detention. (see: Szostak, para 74).
58Justice Rosenberg goes on to describe the prejudice in paragraph 64 as follows:
"I have no difficulty in concluding that in the general sense the appellant was prejudiced by the course of the proceedings. Had the appellant been prosecuted and convicted for these offences without reference to his mental state, he would, at worst have received a penitentiary term of two to three years, less credit for pre-sentence custody. Having been found NCRMD, the appellant was subject to indefinite detention until he was no longer a significant threat to the safety of the public: see s. 672.54 of the Criminal Code. The appellant has now been detained in a hospital for five years. The consequence of a finding of NCRMD can be so profound that a high degree of procedural fairness and scrupulous attention to the rights of the accused are required." [Emphasis added]
59This is similar to the comments of Justice Trotter in R. v. John Doe, [2011] O.J. No 52 at para 35, where he notes:
"On a more general level, the assessment provisions under Part XX.1 must be approached with great care, especially when the Crown attempts to invoke them. In this case, the Crown's motivation for seeking an assessment is legitimate. Nevertheless an assessment under Part XX.1 is an entrance into a socially protective regime, one that is accompanied by significant deprivations of liberty. Accordingly, one must proceed with restraint when applying these provisions: see: more generally, Winko v. B.C. (Forensic Psychiatric Institute) (1999) 135 C.C.C. (3d) 129 (S.C.C.) at p. 156, Penetanguishene Mental Health Centre v. Ontario (A.G.) (2004) 2004 SCC 20, 182 C.C.C. (3d) 193 (S.C.C.) at p. 201 and Regina v. Conway (2010) 2010 SCC 22, 75 C.R. (6th) 201 (S.C.C.) at p. 232. Indeed, an assessment is itself an invasive procedure in many ways. This is no doubt one of the reasons why Parliament intended assessment orders should be "completed with dispatch": see Ontario v. Phaneuf 2010 ONCA 901, at para 16."
60The facts in John Doe describe bizarre behavior. Mr. Doe refused to provide a name, date of birth or to identify himself in any way which resulted in the label of John Doe. Justice Trotter noted that there were an "impressive collection of summaries of Mr. Doe's previous encounters with the criminal justice system, in addition to many previous psychiatric reports…" and yet Justice Trotter concluded that the only thing that was clear on the record was that Mr. Doe's mutism is selective, voluntary or volitional.
61In both Szostak and Capano, there was evidence of outbursts by the accused during the proceedings. Mr. Kindersley appeared by video from Central North Correctional Institute during these proceedings. His audio remained on throughout the proceedings and while he did make a couple of comments, they did not rise to the level of outbursts in either their nature or frequency. Mr. Kindersley read out a prepared statement at the conclusion of the proceedings against advice of counsel, but there was nothing in the statement that addressed the central question of whether there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
62I appreciate the limitations and challenges of trying to determine whether an assessment is necessary without an assessment, but I am not satisfied that the evidence before me provides me with reasonable grounds to believe that Mr. Kindersley suffered from a mental disorder. It is possible. There is evidence of bizarre behavior, but the evidence of Dr. Shahid suggests that it is also possible that such behavour is just the result of substance abuse. There are no other assessments and the evidence of family members suggests that they had not, until the last couple of years, believed or treated Mr. Kindersley's behaviours as anything other than unusual. He has not been diagnosed as having any mental disorder.
63In addition to the issue of whether there is reasonable grounds to believe that he suffered from a mental disorder at the time of these offences, I am not satisfied that there are reasonable grounds to believe that Mr. Kindersley, even if suffering from a mental disorder, should be exempt from criminal liability on the basis that he did not understand that what he did was wrong. At this stage, it is not necessary to determine whether he should be exempt, just whether there are reasonable grounds sufficient to order an assessment.
64On this point, the crown notes that although Mr. Kindersley wrote an apology letter suggesting that he knew his actions were legally wrong, he may still believe that his actions in this particular case were justified such that he should be exempt from criminal liability.
65Justice McLaughlin in R. v. Oommen, [1994] 3 S.C.R. 1303, reviews what it means to know that your actions are wrong. At para 29 she reviews the defence of insanity and notes:
"A person may have adequate intelligence to know that the commission of a certain act, e.g. murder, is wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing and the considerations which to normal people would make the act right or wrong. In such a situation the accused should be exempt from criminal liability." [emphasis originally added]
66Although there are troubling aspects of Mr. Kindersley's behavior and actions, I must be cognizant of the profound impact that an assessment may have on him. It is not simply up to me to make an assessment because I am curious as to whether his conduct might render him exempt from criminal liability, or on the hope that he may receive some treatment that he is otherwise avoiding. Rather, there must be reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder. I am not satisfied that the basis for this belief is clear and plain on this record such that an assessment can be ordered.
67Accordingly, the Crown's application is dismissed.
Released: August 5, 2020
Signed: Justice B. Oldham