Court File and Parties

COURT FILE NO.: CR-15-9423 DATE: 20181206 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – THOMAS CHAN Defendant

Counsel: Andrew Midwood and Frank O. Schwalm for the Crown David S. McFadden and L. Joleen Hiland for Mr. Chan

HEARD: September 10-14 and17-19; October 17, 22, 25 and November 1, 2018

REASONS FOR JUDGMENT

Boswell J. (orally)

Introduction

[1] Thomas Chan had done mushrooms before. He had enjoyed the experience. The drugs opened his mind; let him see the world and his place in it more clearly than he ever had. On the evening of December 27, 2015 he would try them again. This time they would alter his world in an almost inconceivable way.

[2] At about 3:30 a.m. on December 28, while in a drug-induced state of psychosis, Mr. Chan broke into his father’s home by smashing a window. He woke his father and his father’s partner, Lynn Witteveen. He proceeded to the kitchen where he obtained a butcher knife. He stabbed his father to death and gravely wounded Ms. Witteveen.

[3] Mr. Chan is charged with murder, attempted murder and aggravated assault. The Crown conceded during argument, however, that the specific intent offences of murder and attempted murder are not supported in the evidence and they seek convictions for manslaughter and aggravated assault.

[4] This case is not about whether Mr. Chan did the acts he is alleged to have done. He did. This case is about whether he is criminally liable for his acts.

[5] By way of defence, Mr. Chan asserts that he is not criminally responsible for the attack on his father and Ms. Witteveen because, at the time of attack, he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his actions or of knowing that his actions were wrong. This is a defence expressly provided for in s. 16 of the Criminal Code.

[6] The manner in which this case was presented leaves the following two broad questions for the court to answer:

A. Has the Crown established the essential elements of the offences of manslaughter and aggravated assault beyond a reasonable doubt?

B. If the answer to question (A) is yes, is Mr. Chan criminally responsible for committing those offences?

[7] The matter of criminal responsibility is going to be the primary focus of this ruling. It is going to require a determination of a series of further sub-issues, which I will outline as I get to them in the analysis.

[8] For now, I will begin with the first broad question and the issue of whether the alleged offences have been made out.

A. THE OFFENCES

[9] The Crown seeks convictions for manslaughter in relation to the death of Dr. Chan and aggravated assault in relation to the attack on Ms. Witteveen.

[10] To establish the offence of manslaughter, the Crown must prove, to the reasonable doubt standard, that Mr. Chan caused the death of his father, by an unlawful act that was objectively dangerous.

[11] To establish the offence of aggravated assault, the Crown must prove, again to the reasonable doubt standard, that Mr. Chan intentionally applied force to Ms. Witteveen, without her consent, that wounded, maimed or disfigured her or endangered her life. The assault must have occurred in a context that was, again, objectively dangerous.

[12] That the offences were committed by Mr. Chan is not contentious. I will, accordingly, set out the circumstances of the offences relatively briefly in order to provide the necessary context for the analysis that follows.

The Events at Denure Drive

[13] On December 27, 2015 Mr. Chan and a number of his friends gathered in his mother’s basement. At about 6:30 or 7:00 p.m. they headed out, en masse, to a local pub to watch some hockey and drink a beer. They returned to Ms. Vestano’s basement at about 8:30 p.m. Some of the friends departed. Five remained. A group decision was made to acquire and consume some magic mushrooms.

[14] Two of the friends went on a mission to acquire the drugs. The evidence is not entirely clear about how much of the drug was acquired. It was described variously as “about the size of a fist”, a “baseball” and “enough to fill your hand”. According to one of the friends who bought the drugs, Mr. Purves, he asked for enough for “four guys”.

[15] Mr. Chan and two of his friends each ingested a dose of mushrooms at roughly 10:00 p.m. A third friend ingested some a while later. About a half an hour after ingesting his initial dose, Mr. Chan observed that his friends were manifesting the effects of the drug, but he felt nothing, so he took a second dose.

[16] Three of Mr. Chan’s friends provided testimony regarding their observations of Mr. Chan following his ingestion of the magic mushrooms: Nik Nemeczek, Dylan Purves and Soren Christianson. Each of these friends were with Mr. Chan throughout the night and planned to sleep over in the basement at his mother’s house.

[17] Nothing particularly remarkable occurred prior to the time that they decided to call it a night. The three friends began to prepare a large, makeshift bed in the middle of the rec room in the basement. No one recalled precisely what time this occurred, but based on the timelines they each described, I conclude that it was after 1 a.m. and likely closer to 2 a.m. It was just about this point in time that Mr. Chan’s behaviour started to change. Mr. Christianson said Mr. Chan asked him where he should sleep. Mr. Christianson considered that to be an odd question, since it was Mr. Chan’s house.

[18] Mr. Chan made his way upstairs to his bedroom. Accounts as to what happened next vary somewhat between witnesses. Having said that, a composite of their testimony provides a reasonably coherent picture of how events unfolded after the decision was made to turn in for the night.

[19] I find that Mr. Chan spent some time alone in his room meditating. He made at least two trips back down to the basement. He complained about feeling hot and indeed he was hot to the touch. He attempted to change the length of Mr. Purves’ hair by gesturing in front of his face and speaking gibberish. At one point he had his cell phone held to his chest with the flashlight on, facing outwards. He expressed that he was scared and he ran upstairs.

[20] Mr. Chan went to his mother’s room, turned on the light and sat on her floor. It was 3:18 a.m. He wanted to talk. Ms. Vestano was in bed with her boyfriend, Jeff Phillips. She wanted her son to turn off the light and go to bed. He wouldn’t. She got out of bed, naked, and turned out the light herself. He was not fazed by her actions.

[21] Mr. Chan then went up to his bedroom again. His mother was concerned and she went after him. His sister, Christina, came out of her room and together with Ms. Vastano tried to get into his room, but he was holding the door shut. Eventually he opened the door and began to call his mother and sister “the devil” and “Satan”. He claimed to “see the light”. He then walked past them and said he was going to his father’s house. He ran down the stairs and out the front door wearing only a pair of pants.

The Confrontation on Haggis Drive

[22] Naturally concerned for her son’s safety, Ms. Vastano hastily put on a jacket, grabbed one for Mr. Chan, and chased after him up the street. He had a head start and was faster than her. He was quickly out of sight, though he had headed off in the direction of his father’s house.

[23] Jeff Phillips had by now arisen and dressed himself. He and Mr. Christianson got into his car and drove up the street after Ms. Vastano. They collected her about halfway up Denure Drive and carried on to the location of Dr. Chan’s residence. That meant north up Denure and then west on Haggis.

[24] Mr. Chan was located just to the east of his father’s residence. He was pacing in front of the driveway next door. Mr. Phillips pulled up beside him. Ms. Vastano motioned to give him the coat, but he yelled, “fuck you, you’re the devil”. She gave the coat to Mr. Christianson to try.

[25] Mr. Christianson asked Mr. Chan if he was ok and he passed him the coat which he put on immediately. Mr. Chan asked Mr. Christianson if he was okay, using a childlike voice. Then Mr. Chan grabbed him by the hand and tried to throw him to the ground. Mr. Christianson sat cross-legged on the ground in an attempt to show Mr. Chan that he was not a threat. Mr. Chan snarled at him and said, “we’re going to fight”.

[26] Mr. Chan picked up a rock from a nearby garden. He began to walk towards Mr. Christianson, who, fearing for his safety, retreated to Mr. Phillips’ car. Mr. Chan followed him towards the car. He began to yell, “fuck you Jeff” and then smashed the driver’s side window with the rock. Mr. Phillips drove off slowly and returned to Ms. Vastano’s home, where they called the police. Mr. Chan walked behind the car at first yelling “you’re the devil, you’re Satan, I am God”.

[27] As the commotion was unfolding on the street in front of Dr. Chan’s home, a number of neighbours were awakened. Six of them testified as part of the Crown’s case and the preliminary hearing testimony of two others was filed on consent. They consistently reported hearing a male voice yelling in the street. The utterances they heard were reported variously as:

• “This is God’s will, this is God’s way, I’m sorry but I would do it again.”
• “This is God’s will”; “This is God’s way”; and “I’m going to hurt myself.”
• “Hear me people. I am God. I am trained to do this and I will do it every Sunday”.
• “This is God’s will. This is God’s way. Nobody can stop me. I am God.”

[28] Back at the residence on Denure, Ms. Vestano and Christina Chan commandeered Mr. Christianson’s car. They returned to Dr. Chan’s residence. By this point, Mr. Chan was no longer on the street. Ms. Vestano ran up to Dr. Chan’s front door. She looked through a window beside the front door. She could see a person pacing, then sitting, then pacing again. She rang the doorbell. She heard someone running towards the front door yelling, “I am God, you are the devil”. She assumed it was her son, but in a voice she had never heard before. She ran back to the car.

The Stabbings

[29] Mr. Chan had made his way into his father’s residence. His father had a keypad on the garage door that was fingerprint activated. Mr. Chan’s fingerprint would have opened the door. Yet he elected to break into the home through a window, causing himself some significant injuries in the process.

[30] Dr. Chan had two motion-activated cameras set up in his main living area. They sent a video and audio feed to his iPhone. They provide a partial record of what occurred inside Dr. Chan’s residence following Mr. Chan’s forced entry. That partial record is largely filled in by the testimony of Ms. Witteveen.

[31] The recordings begin with the sound of glass smashing. Mr. Chan entered the house. He was wearing pants, no shirt, an open jacket and nothing on his feet. He was screaming. He switched on a light. He yelled, “I am not afraid any more”. He proceeded directly to his father’s bedroom. Although out of camera vision, the sound of a door being kicked in is audible. There is additional yelling that cannot be made out in the recording. Ms. Witteveen testified, however, that she awoke to Mr. Chan yelling, “this is the day of reckoning.”

[32] In the next recorded images, Mr. Chan is out of sight, but it can readily be inferred that he was in the kitchen with his father. There was more shouting. Ms. Witteveen had gotten out of bed and was standing at the end of the hallway looking into the kitchen. She testified that Dr. Chan had his arms crossed in front of him. Mr. Chan had a knife and was trying to grab his father. Dr. Chan was saying, “Thomas, it’s Daddy, it’s Daddy.” She watched as Mr. Chan then stabbed his father who bled profusely.

[33] Mr. Chan can be observed on video coming out of the kitchen and attacking Ms. Witteveen. He slashed at her with a long butcher knife. She agreed under cross-examination that she was telling him, “Thomas, it’s Lynnie, it’s Lynnie, I love you.” She does not think he recognized her. She said she thought he punched her really hard in the stomach, but then realized he had stabbed her in the abdomen. He also stabbed her in the arm and the back and across her chest.

[34] Ms. Witteveen ran back to the bedroom and called 911. While she was on the phone with 911, Mr. Chan returned to her room. She told him she loved him. He told her he loved her, but in a deep voice she had never heard him use before. He then stabbed her in her right eye.

[35] Mr. Chan then returned to the main area of the house. He sat down by the front door for a few moments. Then he returned to the bedroom where Ms. Witteveen was and slashed her neck.

[36] The doorbell began to ring. It was Ms. Vastano. Mr. Chan yelled, “Please stop; please stop”. He said “I love you all, so much, I don’t want to do this.” Then, “Get the fuck away, stay the fuck away. This is a holy fucking place, this is a holy place.” Moments later the police arrived.

The Arrest

[37] Police Constables Kelly and Heenan had received reports of a woman being stabbed inside the residence on Haggis. They were not messing around. PC Kelly was armed with a taser. PC Heenan had his sidearm drawn. They attempted to kick in Dr. Chan’s front door, unsuccessfully. They demanded that Mr. Chan open the door, which he did. He immediately complied with their demands to raise his hands and drop to the ground. They handcuffed him. He was covered in blood and sweat.

[38] Mr. Chan began to struggle. PC Heenan described him as having super strength. Other officers came to assist. They managed, after a great deal of struggle and force, to secure him in the back of a police car. A number of officers made notations in their notebooks that they had heard him say, “I am God”. PC Kelly recalled that he said, “I am God. I carried out God’s will.” He can be heard on the audio portion of the security footage yelling, “You are the devil.” PC Heenan noted that he said, in a more muted tone, “I am God, I finished my plan, put a bullet in my head.”

Conclusions about the Offences

[39] I am satisfied beyond a reasonable doubt that Mr. Chan stabbed both his father and Ms. Witteveen. There is an abundance of evidence, both direct and circumstantial, to support that conclusion.

[40] The stabbings were, in law, an assault with a weapon, which is an unlawful act. They were clearly objectively dangerous acts. They caused the death of Dr. Chan. And they endangered Ms. Witteveen’s life and resulted in the loss of one of her eyes. The essential elements of manslaughter and aggravated assault have been proven beyond a reasonable doubt.

[41] I turn then to the next broad question: is Mr. Chan criminally responsible for his actions?

B. CRIMINAL RESPONSIBILITY

[42] Section 16 of the Criminal Code provides 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.

[43] Section 16 reflects certain fundamental policies of the criminal law.

[44] First, our law presumes that individuals are autonomous and rational beings whose acts are capable of attracting criminal liability. In other words, our law presumes that accused persons are mentally sound.

[45] Second, our law recognizes that it would be unfair to impose criminal consequences on accused persons who were not acting autonomously or rationally at the time an offence was committed. Hence, the presumption of mental soundness is a rebuttable one.

[46] Third, the availability of a verdict of not criminally responsible on account of mental disorder (“NCR”) “gives effect to society’s interest in ensuring that morally innocent offenders are treated rather than punished, while protecting the public as fully as possible.” See R. v. Bouchard-Lebrun, 2011 SCC 58, at para. 52.

[47] To be exempt from criminal responsibility due to a mental illness, an accused person must satisfy two factors on a balance of probabilities. These factors were described by Justice Watt in R. v. Dobson, 2015 ONSC 2865, affirmed, 2018 ONCA 589, as follows:

The exemption has two components: the first is a condition, a mental disorder. The second is an incapacity associated with that condition. On its own, a mental disorder does not exempt anyone from criminal responsibility. A mental disorder only exempts from criminal responsibility if it renders a person incapable of appreciating the nature and quality of an act or omission, or incapable of knowing that the act or omission was wrong. (Para. 66).

[48] In the result, the issue of criminal responsibility requires the court to consider the following two questions:

1. Was Mr. Chan suffering from a mental disorder at the time of the offences? and,
2. Did that mental disorder render him incapable of appreciating the nature and quality of his actions, or incapable of knowing they were wrong?

[49] I will address these issues in turn.

1. Mental Disorder (Condition)

[50] Section 2 of the Criminal Code defines a mental disorder as a “disease of the mind”. This definition begs the question, what is a “disease of the mind”?

[51] The Supreme Court has held that, for the purposes of the Criminal Code, the phrase, “disease of the mind” is a “legal concept with a medical dimension”: Bouchard-Lebrun, at para. 61. This means that although medical expertise plays an important role in the characterization of any particular condition as a mental disorder, it remains a question of law to be decided by the trial judge.

[52] The legal concept of “disease of the mind” was defined by Justice Dickson, as he then was, in Cooper v. The Queen, [1980] 1 S.C.R. 1149, where he said as follows:

…One might say that in a legal sense "disease of the mind" embraces 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 such as hysteria or concussion.

[53] The evidentiary record discloses two potential medical disorders in play on December 28, 2015. One is described as substance induced psychosis. The other is an alleged mild traumatic brain injury.

[54] Counsel appear to be agreed that Mr. Chan was suffering from a substance induced psychosis at the material time. They are not in agreement about whether he was suffering from a mild traumatic brain injury, nor are they agreed about whether a mild traumatic brain injury, if it existed, had anything to do with the outcome on the night in question.

[55] Two psychiatrists testified about Mr. Chan’s mental state at the material time. Dr. Gary Chaimowitz testified for the defence. Dr. Phillip Klassen testified for the Crown. Both are eminently qualified as forensic psychiatrists. Both agreed that Mr. Chan was suffering from a substance induced psychosis at the time of the attack. Both agreed that he also had, and continues to have, a mild traumatic brain injury.

[56] On its own, the presence of a substance induced psychosis is not helpful in establishing the first branch of an NCR defence.

[57] The Diagnostic and Statistical Manual of Mental Disorders, fifth edition (commonly known as the DSM-V) lists substance induced psychosis as a recognized mental disorder. In other words, psychiatrists recognize substance induced psychosis as a mental disorder. Psychiatric recognition is not, however, the equivalent of legal recognition.

[58] In Bouchard-Lebrun, the Supreme Court directly addressed the question of whether a substance induced psychosis caused exclusively by a single episode of intoxication is a mental disorder within the meaning of s. 16 of the Criminal Code. Their answer was no. It is clear from that case that if a psychotic condition is due exclusively to self-induced intoxication, a s. 16 NCR defence is not available.

[59] In this case, the defence asserts that Mr. Chan’s psychosis was not caused exclusively by self-induced intoxication. They point to a diagnosed mild traumatic brain injury as a significant contributor to Mr. Chan’s condition. Crown counsel is skeptical about whether Mr. Chan actually had a mild traumatic brain injury at the relevant time.

[60] In my view, the evidence clearly supports the conclusion that Mr. Chan had a mild traumatic brain injury at the time of the attacks.

[61] Mr. Chan is a 21 year old man. He was 19 at the time of the events in issue.

[62] He attended private school, as did most of his friends, at Lakefield College School, just outside of Peterborough. He was an avid and, by all accounts, tremendously talented rugby player.

[63] He played not only for his school and city, but for Team Ontario and Team Canada. In fact he played for the U17 Canadian team when he was just 15 years old.

[64] Unfortunately, he suffered multiple concussions while playing the sport, most of which appear to have been during high school games. He never saw his family doctor about his head injuries and never received an MRI or a CT scan. According to Ms. Vastano, his father, Dr. Chan, provided primary health care to all members of the family. His father was the one to clear him for further play following a head injury.

[65] Following his numerous head injuries he experienced headaches, light-sensitivity and depression. There were times when his mother had to pick him up from school due to headaches. She would collect him from the nurse’s office where he would be lying down with a cold cloth on his head.

[66] Ms. Vastano testified, and I accept, that there were games when Mr. Chan suffered a head injury and was put back on the field in the same game. He suffered two serious head injuries just a week apart while playing rugby in grade eleven. He was knocked unconscious and remained so for some ten minutes in the first incident. After that his mother said he could no long play rugby. But someone from Lakefield apparently called Dr. Chan a week later and asked if Mr. Chan could play. For reasons best known to him, Dr. Chan gave the go-ahead. Thomas was knocked out again on his first game back. His mother said “no more” and that was the end of a promising rugby career.

[67] Following the end of his rugby career Mr. Chan went through a period of depression. He saw a psychologist for a number of months. By the beginning of grade twelve he seemed to have overcome that depression. He did, however, have increasing difficulties at school, with concentration and motivation. Lakefield suggested that he see a neuro-psychologist, which he did. After a neuro-psychological assessment, Lakefield made certain accommodations for him, such as writing his exams in a separate room by himself and giving him more time to complete his tests.

[68] The neuro-psychologist he saw in 2013 was Dr. Peter Gaskovski. Mr. Chan was 16 at the time. Dr. Gaskovski concluded that Mr. Chan had cognitive deficits in the areas of auditory attention, auditory working memory, variable memory functions, diminished processing speed and poor tracking/self-monitoring.

[69] It is true that Dr. Gaskovski did not a have pre-concussion performance baseline to compare Mr. Chan’s 2013 test results to. But there is a close proximal connection between the onset of cognitive and scholastic difficulties and the increasing number of concussions suffered by Mr. Chan. It would be naïve in my view, not to find a connection between the two.

[70] Mr. Chan underwent more recent neuro-psychological testing conducted by Dr. Bruno Losier in June and July 2018. Dr. Losier’s findings were consistent with those of Dr. Gaskovski in terms of cognitive deficits in the areas of auditory attention, working memory and information processing.

[71] Dr. Losier concluded that Mr. Chan’s symptoms were stable and longstanding and that he meets the criteria for a mild traumatic brain injury. His view was that there is quite likely injury to Mr. Chan’s frontal lobe and possibly his temporal lobe areas.

[72] Drs. Chaimowitz and Klassen each accepted Dr. Losier’s findings and each shares the view that Mr. Chan has a mild traumatic brain injury. I agree.

[73] Crown counsel questioned Dr. Losier fairly extensively about whether Mr. Chan’s cognitive defects could be associated with a disorder other than a mild traumatic brain injury. They also put to him that Mr. Chan’s brain injury may well have healed between the end of his rugby career in 2013 and when the index offences occurred in 2015. Cognitive deficits appearing in tests conducted in 2018, they suggested, may be the result of intervening events, such as a car accident Mr. Chan had been involved in.

[74] I reject any suggestion that Mr. Chan’s brain injury healed after the 2013 neuro-psychological testing and was re-injured shortly before the 2018 testing. The evidence does not support such a finding. The results of Mr. Chan’s neuro-psychological testing in 2013 and 2018 are entirely consistent with one another. Each of Dr. Losier, Dr. Chaimowitz and Dr. Klassen accept that Mr. Chan had and continues to have a mild traumatic brain injury.

[75] I conclude that he has a number of chronic cognitive deficits associated with his brain injury. Most brain injuries tend to heal up between 3 and 6 months. Some take longer. Some, like Mr. Chan’s, persist.

[76] I further conclude that Mr. Chan’s mild traumatic brain injury is a disease of the mind, consistent with the Cooper definition of that term, for the purposes of s. 16 of the Criminal Code. It is an abnormal condition that impairs the functioning of Mr. Chan’s brain. It is not transitory.

[77] The next question is whether the mild traumatic brain injury – alone or in combination with the intoxicating effects of psilocybin – rendered Mr. Chan incapable of appreciating the nature and quality of his actions on December 28, 2015 or of knowing those actions were wrong.

2. Incapacity

[78] As I set out, one of the two components of an NCR defence requires Mr. Chan to establish, on a balance of probabilities, that he was incapable of either appreciating the nature and quality of his actions, or of knowing that they were wrong.

[79] The notion that Mr. Chan was incapacitated at the time of the offences is not particularly contentious. The real litigious issue is whether the cause of that incapacity was a mental disorder for the purposes of s. 16 of the Criminal Code. My discussion of the nature, as opposed to the source, of the incapacity will be comparatively brief in the result.

[80] To be capable of appreciating the nature and quality of his actions, Mr. Chan needed to have the capacity to know what he was doing (in this case stabbing his father and Ms. Witteveen) and to estimate and understand the physical consequences that would flow from his actions (in this case physical injury that could result in death): Dobson, at para. 103.

[81] To be capable of knowing that his actions were wrong, Mr. Chan needed to have the capacity to be aware that his actions would be considered wrong according to the ordinary moral standards of reasonable members of society: Dobson, para. 121.

[82] Both psychiatrists agreed that Mr. Chan was, at the time of the attacks, unable to understand the wrongfulness of his actions. Dr. Chaimowitz expressed the additional opinion, not entirely shared by Dr. Klassen, that Mr. Chan also would not have been able to appreciate the nature and quality of his actions. But both agreed that he was unable to appreciate that what he was doing was morally wrong. He appears to have misidentified the victims as the devil and, in his delusional state, he would have had a moral rationale for doing what he did.

[83] I accept the psychiatrists’ shared opinion that Mr. Chan would have been incapable of knowing that his actions were morally wrong. My acceptance of their opinions is a result of a consideration of their views in the context of the compelling factual matrix that was laid out in the evidentiary record.

[84] It is readily apparent to me that Mr. Chan was experiencing an acute break with reality at the time the offences were committed. His actions and words were bizarre. He experienced delusions of grandeur. He lost touch with reality. He became aggressive and extremely violent.

[85] There appears to have been absolutely no rational motive for the attacks.

[86] Mr. Chan appeared to be socially well-adjusted. He had a close-knit group of friends that he had grown up with. He had a new group of friends at St. Lawrence College in Kingston. He had a girlfriend. He was not enjoying his program at school – police foundations – but had made arrangements to switch to an alternative program.

[87] Although his parents separated in 2008, Mr. Chan remained close to both his mother and father. He was perhaps a little closer to his mother; the result, no doubt, of living primarily with her. But he saw his father regularly and they maintained what appeared to be a close and loving relationship. They had spent some time together on Christmas Day. They shared a passion for Star Wars and had gone to see the latest instalment in that film series on Boxing Day. His sister described their interactions on Christmas Day and Boxing Day as entirely pleasant.

[88] Mr. Chan also appeared to have a good relationship with his father’s partner, Lynn Witteveen. She testified that he had a very positive relationship with his father and with her. He was always respectful. He was charismatic. She loved him like her own son.

[89] I have listened to the accounts of Mr. Chan’s family and friends and the harrowing account of Ms. Witteveen about the events of the evening in issue. I have seen firsthand the video of Mr. Chan’s behaviour inside his father’s residence. And I have considered the opinions of the experts who testified.

[90] Based on the whole of the evidence, I conclude that, at the time of the offences, Mr. Chan was experiencing a psychotic episode that rendered him incapable of knowing that his actions were wrong.

[91] I will move on to the more contentious issue: what caused Mr. Chan’s incapacity?

[92] There can be little doubt that Mr. Chan was in a state of self-induced intoxication at the time of the offences. In the circumstances, the court must identify a specific source for his psychosis: was it self-induced intoxication, or was it a disease of the mind, or some combination of the two?

The Governing Principles

[93] In R. v. Bouchard-Lebrun, the Supreme Court provided a framework for analysis where the court is faced with the difficult challenge of determining the cause of a psychotic episode that emerged while an individual was intoxicated. The framework involves a holistic analytical approach which was first described in R. v. Stone, [1999] 2 S.C.R. 290.

[94] Determining the source of the psychosis is critically important. A psychosis caused exclusively by self-induced intoxication does not result in an exemption from criminal responsibility under s. 16 of the Criminal Code.

[95] The situation is more complicated, of course, when an episode of psychosis occurs in the context of a disease of the mind coupled with intoxication. In these circumstances, the onus is on the defence to show that the psychosis was caused by the disease of the mind and not the intoxication: R. v. Turcotte, 2013 QCCA 1916, at para. 108.

[96] The analysis starts with the general principle that temporary psychosis is excluded from the definition of “disease of the mind” provided for in Cooper. Mr. Chan’s psychosis was both temporary and closely associated with the course of his intoxication. The presumption is, therefore, that his condition is not one that could justify an exemption from criminal responsibility. This is a rebuttable presumption. But rebutting the presumption will require Mr. Chan to demonstrate that his psychosis was driven by his mental disorder and not intoxication-related symptoms: Bouchard-Lebrun, para. 69.

[97] To determine if Mr. Chan has discharged his burden of rebutting the presumption, the court must apply a holistic approach. The holistic approach will aid the court in determining whether the cause of Mr. Chan’s psychosis was a mental disorder that would exempt him from criminal liability, or self-induced intoxication, which would not support a s. 16 defence. In cases where there is evidence of an underlying mental disorder but also evidence that shows that the toxic psychosis was triggered by the consumption of drugs of a nature and quantity that may have produced the same condition in a normal person, the holistic approach must be meticulously applied: Bouchard-Lebrun, para. 88.

[98] The holistic approach involves a consideration of two factors, known as “the internal cause” and “continuing danger” factors, as well as the policies underlying s. 16 of the Code.

[99] The internal cause factor requires the court to consider the nature of the substance that triggered the psychosis and to determine whether a normal person, in the same circumstances, might have had the same reaction that Mr. Chan did, assuming similar consumption. The more likely it is that a person without a disease of the mind would also be susceptible to a similar state, the more likely it is that the cause of the psychosis was external. In other words, not a disease of the mind.

[100] The continuing danger factor asks the court to assess the risk of Mr. Chan’s future dangerousness. In other words, what is the likelihood he presents a recurring danger to others? If Mr. Chan suffers from a condition that is likely to recur and cause further risk to the public, then there is a greater chance that the psychosis was related to the mental disorder and not to the temporary symptoms of intoxication.

[101] Finally, the holistic approach requires the court to consider the policy concerns that underlie the inquiry. In particular, whether there is a need to protect society from Mr. Chan through the procedures set out in Part XX.1 of the Criminal Code. Should the court conclude that Mr. Chan does not require any particular treatment and that he is not a threat to others, then it is considerably less likely that a determination will be made that he was suffering from a disease of the mind at the time of the offences that supports a finding of not criminally responsible.

The Positions of the Parties

[102] The parties have very different positions about the cause of Mr. Chan’s psychosis.

[103] Defence counsel acknowledge that the court must be particularly wary when a psychotic event is closely associated, temporally at least, with intoxication. In this case, however, there is much more in play, they say, than simple intoxication.

[104] The defence submits that they have established, on a balance of probabilities, that the psychosis experienced on December 28, 2015 was a result of the interplay between the drugs ingested by Mr. Chan and his underlying brain vulnerability. They contend that but for the brain injury, Mr. Chan would not have become psychotic after taking magic mushrooms.

[105] Mr. Chan’s brain injury, they argue, made him more vulnerable to the effects of psilocybin than a normal person would be. The court should conclude, they submit, that the cause of Mr. Chan’s psychosis was, or primarily was, an internal mental disorder as opposed to intoxication.

The Position of the Crown

[106] The Crown’s position is that the primary driver of Mr. Chan’s psychosis was the ingestion of an intoxicating substance. There is no dispute in this case that Mr. Chan’s mild traumatic brain injury would not have, on its own, led to a psychotic episode. It was the drugs, the Crown says, that caused the psychosis.

[107] The Crown highlights the fact that both psychiatrists who testified in this case agree that Mr. Chan does not suffer from an ongoing psychotic illness. He had no latent illness that was triggered by his ingestion of an hallucinogen. The psychosis in this case was a direct result of the ingestion of psilocybin and cannot therefore form the basis of an NCR defence.

Discussion

[108] In my view, a meticulous application of the holistic approach leads to the conclusion that Mr. Chan’s psychosis was the result of his ingestion of magic mushrooms. In other words, his self-induced intoxication. I will go through the analysis in detail, beginning with the internal cause factor.

The Internal Cause Factor

[109] There is no dispute that Mr. Chan ingested magic mushrooms on the evening in issue. There is no dispute that the magic mushrooms triggered the psychosis that led to the attack. The internal cause factor involves a consideration of whether a normal person, in the same circumstances as Mr. Chan, would likely have had the same reaction as he did.

[110] Dr. Daryl Mayers testified during the Crown’s case. He has worked at the Centre of Forensic Sciences since 1992 as a forensic toxicologist. I qualified him as an expert in that field.

[111] Dr. Mayers explained that the active ingredient in magic mushrooms is psilocybin. It is an hallucinogen. It tends to take about 30 minutes after ingestion to begin having an impact. The effects typically peak after about two hours and wear off after about six hours. If a person took a second dose some time after the first, the result would be a shifting and enhancement of the peak.

[112] According to Dr. Mayers, psilocybin is generally pretty safe in terms of toxicity. Users of the drug often report positive sensations like giddiness, laughter, euphoria, an intensification of perceptions, a physical lightness, and pseudo-hallucinations – typically visual distortions that the person knows are not real.

[113] There can be some less positive effects as well: nausea and vomiting, an increased body temperature, anxiety, fearfulness, aggressiveness and violence.

[114] Dr. Chaimowitz testified that he sees a significant number of patients in his practice who have suffered a substance induced psychosis. In his experience, mushrooms are not the most common drug out there. He thought it would be rare to have a psychotic episode after consuming mushrooms, but he was unable to say what percentage of normal individuals would become psychotic after consuming them. He was not aware of any scientific studies on the subject.

[115] Notwithstanding that mushrooms may be a comparatively safe drug in terms of toxicity, each of Dr. Chaimowitz and Dr. Klassen testified, and I accept, that if any given person took enough of the drug, he or she would become psychotic.

[116] In order to assess whether Mr. Chan’s psychotic reaction to the mushrooms he ingested was a more extreme reaction than one would expect to see in the normal population at the same dose, one would have to know (a) what the dose in issue was; and (b) what dose would typically result in a serious adverse event like toxic psychosis in the normal public.

[117] I am significantly handcuffed in this case in making those determinations.

[118] First, I have essentially nothing to go on in terms of scientific studies that might give me some indication as to what dose of psilocybin tends to trigger toxic psychosis in the normal population.

[119] Second, I have no idea what dose of psilocybin Mr. Chan consumed on the occasion in question. He told Dr. Klassen that it was about four times as much as he had taken previously. On one level that suggests perhaps a significant dose, but at the same time, there are many variables that make that evidence less helpful.

[120] There are something in the neighbourhood of 200 different types of magic mushrooms. I have no idea what type was consumed in this instance, nor precisely how much of it. Moreover, individual experiences may vary depending not only on dose, but also on personality, stimuli experienced while high and expectations going in. About all I can say with any confidence is that the three friends who took a handful of these same mushrooms had non-toxic and evidently positive experiences. Mr. Chan took a significantly greater dose than his friends and experienced a serious adverse event.

[121] The defence case appears to be based more on the general notion that a person with a mild traumatic brain injury is likely to be more susceptible to the effects of hallucinogenic drugs than the normal population. That premise is said to be the foundation for two suggested inferences. First, that Mr. Chan’s brain injury made him more vulnerable to the effects of the mushrooms; and second, that on the occasion in question he experienced toxic effects that non-brain injured individuals would not have.

[122] There is no scientific research literature to support defence counsel’s premise. Not being satisfied that the premise is established, I am not in a position to draw the inferences counsel urges upon me.

[123] Defence counsel conceded that there is a lack of scientific research literature regarding the effects of hallucinogens on brain injured subjects. This is not surprising of course because research ethics boards would be loath to approve studies of this nature on vulnerable subjects. That said, Dr. Chaimowitz has significant experience dealing with substance induced psychosis in mentally ill patients. He opined that it is likely that Mr. Chan’s brain injury made him more vulnerable to the effects of the mushrooms. This is an issue upon which he and Dr. Klassen parted company.

[124] Dr. Chaimowitz expressed the opinion that it is likely that the use of mushrooms triggered a psychotic state in Mr. Chan because of his vulnerable brain. In his view, the damaged areas of Mr. Chan’s brain contributed to the psychosis. They made him more vulnerable. The frontal lobe is the seat of inhibition. Damage to that area of the brain tends to make one more susceptible to disinhibition.

[125] Dr. Chaimowitz conceded under cross-examination that it is possible that, even if his brain was normal, Mr. Chan may be one of those unusual people that experience toxic episodes after taking drugs. He prefers the explanation, however, that Mr. Chan’s brain injury made him more vulnerable.

[126] Dr. Klassen accepted that Mr. Chan has a mild traumatic brain injury, but testified that it is difficult to say whether that mild traumatic brain injury made Mr. Chan more vulnerable to the effects of the mushrooms. He would go only so far as to say it might have.

[127] In Dr. Klassen’s view, the absence of any meaningful evidence about the dose of psilocybin taken makes it very difficult to comment on any vulnerabilities Mr. Chan may have had. This is because at a high enough dose, anyone will become psychotic.

[128] I found both psychiatrists to be highly qualified and they were both honest and compelling witnesses. But I tend to agree with Dr. Klassen on this particular issue. I do not think that there is a sufficient scientific basis upon which to conclude that Mr. Chan’s mild traumatic brain injury made him more vulnerable to the effects of psilocybin. I acknowledge that it may well be that the science just isn’t there yet.

[129] Dr. Mayers testified that psilocybin is an agonist, meaning it binds to a neural receptor and activates the receptor to create a response. It has a preference for particular receptors – those identified scientifically as 5-HT2A receptors. He said the density of 5-HT2A receptors in a particular brain may impact on the effect of the drug.

[130] There is no evidence as to the density of 5-HT2A receptors in Mr. Chan’s brain.

[131] Mr. Chan’s mild traumatic brain injury may be the result of diffuse axonal injuries in his frontal and temporal lobes. But there is no scientific evidence before me that tends to explain how diffuse axonal injury intensifies or exacerbates the effects of psilocybin. Nor is there any scientific evidence to support the general assertion that someone with a mild traumatic brain injury is more susceptible to the effects of psilocybin than the normal population. Dr. Chaimowitz testified that not only has he never seen a study on the effects of hallucinogens on brain injured subjects, he has never seen a study identifying the percentage of “normal” people who experience a psychotic episode after ingesting magic mushrooms.

[132] Dr. Chaimowitz may well see patients with underlying mental disorders who have experienced substance induced psychoses. I expect that there is a significant co-morbidity between certain types of mental disorders and substance use or abuse. His evidence fell short, however, of providing a basis upon which I could rationally conclude that individuals with mild traumatic brain injuries, specifically, are more vulnerable to the effects of hallucinogens than the normal population.

[133] There is a certain visceral attraction to the suggestion that a brain injured person is likely more susceptible to the effects of an hallucinogenic drug. On the record before me, however, the best that can be said is that it might. “Might” is a word that falls much closer to speculation than it does to proper inference.

[134] I find that Mr. Chan experienced a sudden onset of psychosis that coincided directly with the ingestion and absorption of magic mushrooms. The psychosis dissipated as the effect of the drugs wore off. The progression and course of his psychosis is highly suggestive that it was caused by the effects of the drugs and not an internal mental disorder.

[135] It is not possible, in my view, to conclude on the record before me, that Mr. Chan had a reaction more extreme than would be the case in the normal population based on the same dose. At best, I consider the “internal cause factor” to be neutral in the holistic analysis. I will move on to the continuing danger factor.

The Continuing Danger Factor

[136] Mr. Chan is a really good person. And something really bad happened to him and to some of the people closest to him in his life.

[137] There is an old adage: soccer is a game of gentlemen played by hooligans. Rugby is a game of hooligans played by gentlemen. Mr. Chan – an outstanding footballer – personified that adage. Blessed with incredible athleticism and power, he remained a gentle soul. He is a romantic. And a dreamer. He was – and is – loved by his close knit family. He has been popular socially. He had a large group of good friends. And he had a leadership role in that group.

[138] No one suggests that Mr. Chan is a continuing danger to himself or to others, provided of course that he avoids the consumption of illicit drugs.

[139] There is essentially no risk, according to the experts, that Mr. Chan’s mild traumatic brain injury will cause a sudden psychosis. No one suggests that his mild traumatic brain injury is inherently dangerous in any way.

[140] The continuing danger factor points away from a mental disorder and towards an external explanation for Mr. Chan’s psychosis.

Policy Considerations

[141] Mr. Chan is not a danger to the public. He is a good kid who got super high and did horrific things while experiencing a drug-induced psychosis. He requires no ongoing treatment according to both Dr. Chaimowitz and Dr. Klassen.

[142] Mr. Chan is not the type of person that Part XX.1 of the Criminal Code is designed to serve.

Conclusion

[143] Based on my application of the holistic approach, I conclude that Mr. Chan was not rendered incapable of knowing his actions were wrong by his mild traumatic brain injury. I conclude that he was incapacitated by the effects of the drugs he consumed. The first prong of the holistic approach is neutral at best. The other two point away from an exemption from criminal responsibility. In the result, I am not satisfied on a balance of probabilities that he has established an exemption from criminal responsibility under s. 16 of the Criminal Code.

[144] This is a very tragic result to a very tragic case. But it is the result mandated by our laws. I am compelled to conclude that Mr. Chan is guilty of committing manslaughter and aggravated assault.

Boswell J. Released: December 6, 2018