COURT FILE NO.: CR-22-00000126 DATE: 20231003 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – LAWRENCE ROBERT CAINES Defendant
Counsel: Ms. B. Bhangu, for the Crown Mr. A. Bryant, for the Defendant
HEARD: June 28 and August 17, 2023
Reasons for Judgment
Introduction
1On the morning of January 14, 2022, 54 year old Lawrence Caines (“Mr. Caines”) was at the Collingwood apartment of his brother, Donald Caines (“Donald”). In the hours leading up to that morning, Mr. Caines made videos that recorded his own bizarre and aggressive behaviour. Mr. Caines posted the videos on a social media site, where they were seen by family members.
2In response to a telephone call from Mr. Caines’ niece, police officers went to the apartment. They found Donald Caines dead in the bathroom. Mr. Caines ran from the apartment, but was apprehended. He was arrested and charged with the first degree murder of his brother.
3A forensic psychiatrist, Dr. Lisa Ramshaw, conducted an assessment of Mr. Caines’ criminal responsibility. After reviewing Dr. Ramshaw’s report, Crown and defence counsel agreed that the assessment, along with the circumstances of the killing, supported a finding of not criminally responsible on account of mental disorder (“NCRMD”). Crown and defence counsel jointly applied to the court asking that that finding be made.
4On the hearing, Crown counsel, Ms. Bhangu, presented a Synopsis that counsel confirmed was an agreed statement of fact. I was invited to, and did, find beyond a reasonable doubt that Mr. Caines unlawfully caused the death of his brother Donald Caines.
5Ms. Bhangu called Dr. Ramshaw to testify. I qualified Dr. Ramshaw as an expert in forensic psychiatry as it relates to NCRMD issues. Dr. Ramshaw’s assessment report was filed as an exhibit. At the conclusion of her testimony, Crown and defence counsel jointly invited me to find that at the time he unlawfully caused his brother’s death, Mr. Caines suffered from a mental disorder that is a disease of the mind, that rendered him incapable of knowing that his act was morally wrong. I made that finding on a balance of probabilities.
6A last issue remained to be addressed. Ms. Bhangu applied to have Mr. Caines designated a high-risk accused (“HRA”) under s. 672.64 of the Criminal Code. At the outset of the hearing, defence counsel, Mr. Bryant, indicated the request was on consent of the defence. After I told counsel that I needed to be satisfied I should make the designation, counsel asked for an opportunity to review the jurisprudence and return on a later date to make submissions on the issue.
7On the return date, Mr. Bryant advised that he opposed the making of the designation. I then heard full submissions from Crown and defence counsel on the s. 672.64 application.
8Counsel agreed that for the purpose of deciding the issue, I could rely on information gathered by Dr. Ramshaw and set out in her report, in addition to her testimony, the information in the Synopsis, and Mr. Caines’ criminal record. No additional evidence was tendered on the application.
The Death of Donald Caines
(a) Background
9In mid-December 2021, Lawrence Caines left the Toronto home he shared with his wife and children. He went to Collingwood, where his mother lived. He was mentally unwell at the time.
10Mr. Caines showed up at his sister’s Collingwood home on December 17, 2021. He told his sister that he had left his wife because she was a “demon”. He went from his sister’s home to visit his mother and his in-laws, but returned, telling his sister they were all “demons”. He stayed at his sister’s home, but his behaviour was unsettled. He left her residence and went to a local hotel.
11On December 19, 2021, hotel staff called the police because of Mr. Caines’ bizarre behaviour. During his apprehension, he spat on one officer and injured the hand of another. He was admitted to Collingwood General and Marine Hospital on a Form 1 under the Mental Health Act [1], for aggression and bizarre behaviour. He received chemical restraints in the emergency department. He was able to settle, and the Form 1 was rescinded the next day. The discharge diagnosis was “resolved episode of bizarre behaviour”.
12On December 21, 2021, Mr. Caines was readmitted to the same hospital on a Form 1 because of bizarre behaviour in public and threats to kill police. He presented as manic. His wife was contacted. She told hospital personnel that she was concerned about her husband’s medication compliance. The next day, Mr. Caines remained agitated. He was disorganized, tangential in his statements, and lacking judgement. He voiced delusions. In particular, he endorsed a belief that he was God.
13Mr. Caines was transferred to Waypoint Centre for Mental Health, where a Form 3 was issued. He was diagnosed with bipolar disorder, opioid use disorder in remission, and post-traumatic stress disorder. His medication was increased. He was discharged on January 6, 2022, when the Form 3 expired. The discharge record noted that there was no evidence of perceptual abnormalities, and Mr. Caines’ thought content was unremarkable. He had shown good insight and reasonable judgement on the ward.
14After leaving Waypoint, Mr. Caines went back to his sister’s home. His behaviour continued to be bizarre. After he became physically aggressive with his nephew, his sister asked him to leave. On January 9, 2022, he went to stay at the Collingwood apartment of his brother, Donald.
(b) Events Leading Up to the Killing
15On January 12, 2022, the Caine brothers’ niece called police and requested a well-being check of her uncles. Police went to the apartment, but there was a refusal to open the door. Mr. Caines called 911 and said that officers were there and one was threatening to shoot him. He asked that an ambulance come to the apartment. He said, “I don’t know what the police are up to…they are out back”. He demanded to know who had called the police, and then hung up. The officers left as they had no grounds to do anything further.
16A friend of Donald’s visited the apartment on the morning of January 13, 2022. Mr. Caines was in his brother’s bedroom. He came out at times and paced to the bathroom. The friend saw a video of Mr. Caines filling his mouth with Lysol.
17On the afternoon of January 13, 2022, Mr. Caines again called 911. He said that he was attacked by the police at a hotel on December 19, put in hospital and released. He said that he was attacked again on December 21, but went to Waypoint where he was assessed and released. He said that the police showed up at his brother’s place the preceding night. He wanted to put a restraining order on his niece because he found out that she had called the police on him.
18On January 14, 2022, shortly after 4:00 a.m., one of Donald’s neighbours called 911 and reported hearing yelling, stomping, and slamming of doors from Donald’s unit.
19After the killing, the police found two cell phones belonging to Mr. Caines in the apartment. The phones contained videos filmed by Mr. Caines on January 14, 2022, in which he told Donald to drink Lysol, talked about spraying others with Lysol, sprayed Lysol into his own mouth, and sprayed Lysol around the bathroom. Mr. Caines told Donald to go, and that the police were coming. The videos showed the two men arguing and struggling in the bedroom. Mr. Caines called Donald a “devil lover”, told Donald he would get the “heat” and “the demons” out of him, and spoke of “the demon” that was inside Donald. He said that if Donald called the police, he would kill him. Donald asked Mr. Caines not to hurt him, and to have mercy on him. At one point, Mr. Caines kissed Donald on the head, and said he loved him and that they were going to be all right.
(c) The Events of January 14, 2022
20Mr. Caines posted the videos referred to above on Facebook. His niece saw them and called the police on the morning of January 14, 2022. She asked that the police go to the apartment to check on the well-being of her uncles. The police did so shortly after 8:00 a.m. No-one answered their knock on the apartment door. When they heard glass breaking inside the unit, they forced entry into it.
21The police found Donald lying on his back on the bathroom floor. A towel was wrapped around his face. When it was removed, the police found what appeared to be a belt around his neck, and the wooden pole of a toilet plunger shoved down his throat. His eyes appeared to have been removed. He was deceased.
22Mr. Caines was in the unit. He threw water at the police, then jumped out the apartment window, falling about 11 feet to the roof of a business below. He jumped to the ground, and ran though the parking lot. He was shoeless, and wearing underwear and a filtered mask. He ran into a store, grabbed a bottle of soap, and left.
23He was pursued by the police, subdued with a taser, and arrested.
(d) Mr. Caines’ Statements to the Police
24At the police station, after being given his rights to counsel and cautioned, Mr. Caines told a police officer that he killed his brother and cut his eyes out.
25Mr. Caines provided a video recorded statement, in which he said that he had been at his brother’s apartment the entire week. He said that Donald got mad at him for cleaning the apartment and throwing things out the window. Donald attacked him in the bathroom and was trying to bite him, so he took off Donald’s belt and used it to try to hold him. Donald was a demon, the devil, and the poison that had been bothering him all these years. He said that he poured water down Donald’s throat to drown him, then put cigarettes in his nose but Donald was still breathing, so he used the pole of the toilet plunger to break Donald’s teeth. When the pole broke, he attacked Donald’s eyes with his fingers, twisted the plunger, and put Lysol and toothpaste into Donald’s mouth to stop him from breathing.
26Mr. Caines said that he had to get rid of Donald’s eyeballs, so he took the “stick” and did “that” to Donald, he had to save himself.
(e) Findings on Autopsy
27On autopsy, the cause of Donald’s death was identified as upper airway obstruction. There were lacerations around the eyes and blunt force trauma to the eyes. The eyes were present, but ruptured. Two teeth and a necklace were found at the back of the mouth and throat. The hyoid bone was fractured on the left side. There was hemorrhage on the jaw line, the upper and lower back, and the left hip. There was a small laceration on the back of the head.
(f) Admission to Central North Correctional Centre (“CNCC”)
28Mr. Caines was taken to CNCC and remained in custody there. He was placed on a multi-medication regime including anti-psychotic medication. A psychiatrist, Dr. Lorberg, saw him on January 27, 2022. Dr. Lorberg’s diagnosis was consistent with bipolar 1 disorder with mild/moderate hypomania. There was no paranoia. Mr. Caines was interviewed by a social worker in mid-February 2022. He spoke of being the brother of Jesus, and said that he saw God and demons regularly. He said that he had killed his brother, but expressed no remorse for it.
29In late March 2022, he was experiencing mood swings, seeing shadows and hearing vibrations. Dr. Lorberg saw him and adjusted his medication. Dr. Lorberg saw him again in mid-June 2022. He had no mania, but said that he had night terrors about his brother and about demons. He was prescribed an additional medication.
The Psychiatric Assessment by Dr. Ramshaw
30Mr. Caines is now 56 years old. He and his common law wife have four children. His wife remains supportive of him, and speaks with him regularly by telephone.
31Dr. Ramshaw described Mr. Caines as experiencing significant childhood traumas. He had a disrupted childhood with domestic violence in the home. He was placed in foster homes, and spent time in training school. He reportedly was sexually abused by his brother and also in training school. He had behavioural difficulties from early adolescence. He left school in grade 9.
32As an adult, Mr. Caines worked in his own garage door repair business.
33Mr. Caines has a history of alcohol abuse with associated aggression and dysfunction, and also opioid abuse. He stopped using both substances in 2015. He has received continued treatment with Suboxone. He has used cannabis at times when he was mentally unwell, although the details of that are unclear. There is no suggestion that cannabis use was involved in the killing of his brother.
34Mr. Caines has a criminal record consisting of 26 convictions, starting in 1984 and carrying on into 2019, with some gaps. Many of the convictions were for property offences. In 2009, after a gap of about seven years, he was convicted of assault. In 2019, again after a gap of about nine years, he was convicted of flight while pursued by a peace officer, dangerous driving, resist peace officer, take motor vehicle, and fail to stop at the scene of an accident. He received a jail sentence and probation. He reportedly was manic and psychotic at the times of his arrest for both the 2009 and 2019 offences.
35Mr. Caines told Dr. Ramshaw that he was diagnosed with bipolar disorder in 2007 while in jail. In 2009, he had a manic episode when he thought his wife was the devil. He started treatment, but remained ill for a couple of months. He became ill again in 2011. At that time he was no longer on medication. He was addicted to Percocets, and he was drinking. After he threatened to assault his wife, she left him. They reunited in 2012. He became ill again in 2014, but was not hospitalized.
36In 2018 he was admitted to Scarborough Centenary Hospital on a Form 1 after the police found him directing traffic. Hospital records described him as minimally cooperative, and having persecutory delusions. When the Form 1 was cancelled because he was no longer certifiable, he signed out of the hospital against medical advice. He returned home, but remained unwell and left. Soon after that, he committed the driving-related offences of which he was convicted in 2019.
37Mr. Caines’ wife told Dr. Ramshaw that when he is ill, he thinks he is God. He is angry and aggressive when unwell.
38Dr. Ramshaw wrote that Mr. Caines has had a number of manic episodes with psychotic symptoms in the context of nonadherence with medication. Psychosis has included delusional beliefs that he is God, paranoia including fears of being killed, perceptual abnormalities, bizarre behaviours, and disorganization of thought. He has had associated aggression that appears to have been largely due to a perceived need to protect himself. Between manic episodes he has had long periods of depression.
39In the fall of 2021, he became increasingly symptomatic with manic and psychotic symptoms. He began to think that he was under attack, and that his wife was the devil. She was concerned that he was noncompliant with his bipolar medication. His mental state became worse in December 2021 and into January 2022. It was ongoing while he was in jail after his arrest, until he received medication including an anti-psychotic and a mood stabilizer. He was doing better by March 2022, although he reported some symptoms then and in June 2022.
40Mr. Caines told Dr. Ramshaw that in December 2021, he was thinking about how the devil was going to kill everybody. He thought that he was Jesus or God. He had to get out of Toronto because the devil’s people, including his wife and children, were around him. He went to Collingwood because it was God’s country. He became focused on COVID, and cleaning and spraying things with Lysol.
41Mr. Caines told Dr. Ramshaw that he feels terrible about killing his brother. He loved Donald, and felt sorry for him. At the time he thought he was killing the devil, not his brother.
42Dr. Ramshaw’s interview of Mr. Caines took place at the beginning of February 2023. At that time there were no evident delusions or perceptual abnormalities. He had improved insight into his mental illness and prior symptoms.
43Based on Mr. Caines’ history and self-report, Dr. Ramshaw made a primary probable psychiatric diagnosis of bipolar 1 disorder, although schizoaffective disorder--manic type could not be ruled out. Nor could post-traumatic stress disorder and antisocial personality disorder, although she testified to some question about the latter. Mr. Caines also has opioid and alcohol use disorders in remission.
44In her report, Dr. Ramshaw explained that bipolar disorder involves episodes of mania and episodes of depression, with normal moods interspersed between extremes of mood. Both the manic and depressive phases of bipolar disorder may involve psychosis, such as delusions, hallucinations, and/or grossly disorganized thought and behaviour. The mainstay of treatment is mood stabilizing medication. Non-compliance with treatment promotes relapse into either mania or depression. Once an individual has experienced two episodes of either mania or depression, medication is generally required in perpetuity.
45Dr. Ramshaw concluded that Mr. Caines has a major mental illness with mania and psychosis in keeping with bipolar disorder. In her opinion, psychosis was the probable driving force behind the “extreme and bizarre behaviour” on Mr. Caines’ part leading to the death of his brother. Mr. Caines had delusional beliefs that he needed to protect himself from the devil and from being killed. His manic episode likely highly impacted his judgement and interfered with his ability to know the moral wrongfulness of his actions at the time.
46It was not clear to Dr. Ramshaw exactly when Mr. Caines was not taking his medication, but she was told he had not been doing so. Lack of compliance with medication for bipolar disorder lends itself to psychotic symptoms. When someone with Mr. Caines’ history and a number of episodes stops taking their medication in a regular fashion, there is a very high risk of relapsing into mania or depression.
47Dr. Ramshaw testified that bipolar 1 disorder is the most serious of the mood disorders in terms of symptoms. It is a life-long disorder.
Recommendations of Dr. Ramshaw
48Dr. Ramshaw recommended that Mr. Caines have close psychiatric care for monitoring, support, and medication management. In particular, he should be monitored for any change in his mental status and risk of aggression.
49She suggested that a violence risk assessment could assist in determining his Ontario Review Board disposition. She testified that such a risk assessment is very common before a Review Board disposition is made, to better understand where the least onerous and restrictive place would be for the individual to engage in their rehabilitation while ensuring the public safety.
50Dr. Ramshaw said it was her understanding that an HRA designation restricts where the individual can go. They essentially need to remain inside the hospital. As a result, it is difficult for treating professionals to engage in certain forms of treatment. The designation does not allow for any re-integration of the individual. She noted that only a few people in Canada are under such a designation.
The High-Risk Accused Designation
51The Criminal Code was amended in 2014 to permit a court to designate an accused found not criminally responsible on account of mental disorder a “high-risk accused”. In R. v. Schoenborn, 2017 BCSC 1556, Devlin J. carefully analyzed s. 672.64. She commented, at paragraph 26, that the purpose of this provision is “to ensure the protection of the public against NCR accused who are considered dangerous and present an unacceptable risk to society based on an assessment of current dangerousness.”
52The provision reads as follows:
672.64 (1) On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and
(a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or
(b) the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.
(2) In deciding whether to find that the accused is a high-risk accused, the court shall consider all relevant evidence, including
(a) the nature and circumstances of the offence;
(b) any pattern of repetitive behaviour of which the offence forms a part;
(c) the accused’s current mental condition;
(d) the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and
(e) the opinions of experts who have examined the accused.
(3) If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c), but the accused’s detention must not be subject to any condition that would permit the accused to be absent from the hospital unless
(a) it is appropriate, in the opinion of the person in charge of the hospital, for the accused to be absent from the hospital for medical reasons or for any purpose that is necessary for the accused’s treatment, if the accused is escorted by a person who is authorized by the person in charge of the hospital; and
(b) a structured plan has been prepared to address any risk related to the accused’s absence and, as a result, that absence will not present an undue risk to the public.
(4) A decision not to find an accused to be a high-risk accused is deemed to be a disposition for the purpose of sections 672.72 to 672.78.
(5) For greater certainty, a finding that an accused is a high-risk accused is a disposition and sections 672.72 to 672.78 apply to it.
53An accused may be designated an HRA under either s. 672.64(1)(a), or s. 672.64(1)(b). In this case. Crown counsel seeks the designation under both heads.
54Devlin J. carefully analyzed the components of these alternative routes to an HRA finding in Schoenborn. With respect to s. 672.64(1)(a), she concluded, at paragraph 82, that it requires a finding that “there is a high degree of probability the NCR accused will cause, attempt to cause, or threaten to cause bodily harm, and in so doing expose another person to serious physical or psychological harm.”
55With respect to s. 672.64(1)(b), Devlin J. concluded:
- The word “brutal” with respect to the nature of the acts that constitute the index offence means cruel, savage, or inhuman. [See paragraph 89.]
- The inquiry is whether, having regard to the brutality of the index offence, considered along with and in light of the factors in s. 672.64(2), there is a high degree of probability that the NCRMD accused will use violence that will result in grave physical or psychological harm to another person that interferes in a substantial way with the physical or psychological integrity, health, or well-being of that person. [See paragraphs 96 and 99.]
56Devlin J. also considered the meaning of the phrase “pattern of repetitive behaviour of which the offence forms a part” in s. 672.64(2)(b). She concluded, at paragraph 118, that:
- The pattern should relate to behaviour that is criminal and not merely antisocial in nature.
- There must be significant similarities between each incident in the alleged pattern, in respect of their essential characteristics. The fewer the number of incidents, the greater the similarity required between their essential characteristics. The court should consider the type of conduct involved, who the victims were, and what motivated the accused.
- There is no requirement that the behaviour in the pattern be objectively serious or comparatively serious. The court should consider the context and surrounding circumstances in which the behaviour occurred, in particular the accused’s mental state at the time of the index offence and at the time of the incidents alleged to comprise the pattern.
The Positions of the Parties
57On behalf of the Crown, Ms. Bhangu submitted that Mr. Caines should be designated an HRA under both subsections (1)(a) and (b) of s. 672.64. She acknowledged that the burden of proof is on the Crown on a balance of probabilities. She asserted that the safety of the public must be the paramount consideration. With respect to subsection (1)(a), she pointed to Mr. Caines’ longstanding psychiatric condition involving manic episodes with psychosis; that in 2021 and into 2022 he was not complying with his medication regime; the depth of his psychotic state at the time of the killing; his diagnosis on discharge from Waypoint in January 2022; his propensity for violence when in a psychotic manic state which forms a pattern of repetitive behaviour; his criminal record; that while at CNCC he continued to have some psychotic symptoms and discontinued an anti-psychotic medication; and that Dr. Ramshaw’s recommendations include monitoring for any change in mental status, and medication management.
58With respect to subsection (1)(b), Ms. Bhangu submitted that the killing of Donald Caines involved an extreme level of violence that rendered it brutal in nature as contemplated by that provision. Additionally, Dr. Ramshaw testified that once an individual has experienced two episodes of mania or depression, medication is generally required in perpetuity. Mr. Caines has a history of non-compliance with medication. He also has a history of being violent when in a psychotic state. There is a substantial likelihood of him acting out with violence again. Although he is not psychotic now, he has been held in jail rather than at a mental health facility, and has yet to receive treatment. He needs strict controls and monitoring even at a mental health facility.
59On behalf of the defence, Mr. Bryant submitted that there is a lack of evidence on which to find that Mr. Caines meets the criteria for designation as an HRA under either subsection (1)(a) or (b) of s. 672.64. Dr. Ramshaw did not suggest in her report or testimony that Mr. Caines should be designated an HRA, nor is there a violence risk assessment before the court. There is no evidence of repetitive violent behaviour by Mr. Caines. He does have a long history of bipolar disorder with manic episodes and psychosis, and he requires close psychiatric care and medication management, but there is no suggestion that this cannot be appropriately addressed going forward.
60With respect to subsection (1)(a), Mr. Bryant submitted that there is insufficient evidence on which I can be satisfied there is a substantial likelihood that Mr. Caines will use violence that could endanger the life or safety of another person. With respect to subsection (1)(b), Mr. Bryant acknowledged that the offence was brutal in nature, but contended that it does not indicate a risk of grave physical or psychological harm to another person. Dr. Ramshaw did not opine that there was a risk of such harm, nor did Mr. Caines’ family members express such a concern to her. Mr. Caines’ behaviour in the months prior to his arrest was bizarre and involved making threats, but it did not rise to the level the legislation requires.
Reported Cases of Accused Designated High-Risk Accused
61The legal research done by Crown and defence counsel bears out Dr. Ramshaw’s observation that the HRA designation has been applied to only a small number of accused found NCRMD. This of course is not determinative of the result in this or any particular case. Whether the designation is made will depend on the facts and circumstances of the individual matter. But to the extent that other cases illustrate circumstances that led to an HRA finding, they are deserving of consideration. I will refer to some of them.
62In some cases, the court had expert opinion evidence as to the subject’s dangerousness. In Re Hadfield, [2022] O.R.B.D. No 2321, there is reference to the testimony before the trial court of the psychiatrist who conducted the NCRMD assessment. At an earlier stage in the proceedings, he conducted a risk assessment for the purpose of a dangerous offender hearing that was pre-empted by the need for an NCRMD hearing. He testified on the NCRMD hearing that the accused was a threat to public safety as he had demonstrated repeated acts of aggression and violence, and suffered from a treatment resistant schizophrenia. In R. v. Raymond, 2020 NBQB 251, the court also had the benefit of an evaluation of the accused’s risk. It put his likelihood of committing a violent act toward another person in the next several months, even though he was taking medication, at 16 to 21 per cent. This positioned him at the medium risk/need level. He was described as continuing to have poor insight. In F.G. v. Responsable de L’Institut A, 2019 QCTAQ 7649, there is reference to the opinion of the psychiatrist who conducted the NCRMD assessment that there remained a high risk of dangerousness inherent in the accused’s schizophrenia which could only be managed by restrictive measures and uninterrupted antipsychotic treatment.
63The HRA designation has been applied to accused who committed serious acts of violence and who previously were found NCRMD of an offence involving violence but discharged from Review Board supervision. In Re Cousineau, 2021 ONCA 760, the appellate court recounted that about six years before the index offence, the accused was found NCRMD after he assaulted the custodian of a church and threatened him with a knife, and then broke into a home and threatened to kill the occupant with an axe. He eventually was discharged from the Review Board’s jurisdiction. He did nothing to address his mental illness, and killed two elderly neighbours while in the throes of psychotic persecutorial delusions. In R. v. Grant, 2018 ONSC 3581, the accused had previously attacked his stepfather with a knife on three occasions. After the third occasion, he was found NCRMD. He was eventually discharged from the Review Board’s jurisdiction. He discontinued his medications soon after that. He attacked his stepfather with a knife for the fourth time, stabbing him and also his own mother. He suffered from treatment resistant schizophrenia, and had little insight into his illness.
Analysis
64There is no issue that Mr. Caines was found NCRMD for a “serious personal injury” offence. First degree murder is such an offence.
65In assessing the applicability of the criteria under both subsections (1)(a) and (1)(b), I have considered the specific factors in s. 672.64(2), as well as other relevant aspects. To some extent my comments referable to the statutory factors overlap.
66There is no question that Mr. Caines’ unlawful killing of the man who was his brother was brutal in nature. It also represented a gross breach of trust. Donald was attacked in his own home. There is no evidence from which I can infer that he had the opportunity, or the means at hand, to defend himself. Mr. Caines put a belt around Donald’s neck to try to restrain him, shoved a wooden toilet pole down Donald’s throat, breaking his teeth, and used his fingers to rupture Donald’s eyes so badly that they appeared to the police to have been removed. The descriptors cruel, savage, and inhuman all apply to Mr. Caines’ actions.
67The killing occurred in circumstances that were the culmination of a period of months of disordered thinking and bizarre behaviour on the part of Mr. Caines. In the weeks proximate to the killing, Mr. Caines spat on one police officer and injured the hand of another as they took custody of him, made generalized threats to kill police officers (on which he did not act), and reportedly assaulted his nephew (the details of which are hearsay conveyed to Dr. Ramshaw by others who were not present at the time).
68Mr. Caines has a criminal record dating back to 1984 for a multiplicity of offences. He has never before been found NCRMD. Crown counsel did not present transcripts of court proceedings, or synopses of the facts on which the previous convictions were based, nor does it seem that Dr. Ramshaw had access to that information. I know almost nothing of the facts underlying those offences, as found or admitted in court. It is those facts that matter on this application, not a third party’s hearsay account of what they believe occurred.
69There is some evidence of violent behavior by Mr. Caines in the past. It is unclear whether all of the previous events were associated with psychosis, such that they might constitute part of a pattern of repetitive behaviour as Crown counsel argued. There is only one previous conviction for an assaultive offence, and that is for common assault in February 2009. I do not know who the victim of that assault was, the offence date, or the circumstances of the offence. I do not have specific information as to Mr. Caines’ mental state at the time. He received a suspended sentence and probation, from which I infer his behaviour was considered to fall at the lower end of the spectrum of conduct.
70There are convictions for drinking and driving offences, property offences, mischief, contempt, and failing to comply, but nothing from which I can infer that violence was involved.
71The final set of convictions in April 2019 was for flight while pursued by a peace officer, dangerous driving, resist peace officer, take motor vehicle, and fail to stop at the scene of an accident. These offences occurred in 2018. Mr. Caines told Dr. Ramshaw that he smashed his truck into a car three times as he thought the person was the devil. I do not know the identity of that person, or the details of the offences. Mr. Caines’ wife gave additional information to Dr. Ramshaw, but that information is hearsay from her and I do not rely on it as I am not satisfied of its reliability. Mr. Caines received a total sentence of 12 months’ jail followed by probation for three years, and a three year driving prohibition. He was still bound by the driving prohibition and was still on probation when he travelled to Collingwood in December 2021.
72I am aware that Mr. Caines’ wife told Dr. Ramshaw that years ago, before he quit drinking and using opioids, he was physically aggressive with her. I do not know the details. In 2011 he threatened to break her jaw, at a time when he was drinking and addicted to Percocets. It is not clear whether this was part of a manic episode.
73A pattern of behaviour cannot be established by vague and imprecise information, by assumptions, or by hearsay information that is not shown to be reliable.
74Based on the limited factual information I have, aside from the incidents in late December 2021 which form part of the most recent bipolar episode, I find that Mr. Caines engaged in criminal behaviour that involved violence associated with psychosis when he committed the driving related offences in 2018. To the extent that this, along with the conduct that resulted in his apprehensions in December 2021 and the killing of his brother constitutes a pattern of repetitive violent behaviour associated with psychosis, it is a weak pattern.
75I consider next Dr. Ramshaw’s expert opinion. While she did not rule out certain other disorders, and Mr. Caines has opioid and alcohol use disorders in remission, her primary probable diagnosis is bipolar 1 disorder with mania and psychosis. It is the most serious of the mood disorders in terms of its symptoms. It is a lifelong illness. The centerpiece of treatment is mood stabilizing medication. The accounts of the history of his illness provided to Dr. Ramshaw by Mr. Caines and his wife is somewhat imprecise, but it reveals that he has experienced at least three significant episodes of mania with psychosis. In 2009, he perceived his wife to be the devil. In 2018, he was admitted to hospital on a Form 1 with persecutory delusions. Most recently, beginning in the fall of 2021 and carrying on into January 2022 he viewed family members, including his ultimate victim, as demons or the devil’s people, and himself as God or Jesus. Dr. Ramshaw did not say that Mr. Caines’ bipolar disorder is a treatment resistant illness. However, in light of these previous episodes, Mr. Caines will require pharmacotherapy for life.
76The information about Mr. Caines’ history of medical care, whether and when he was prescribed medication to treat his bipolar disorder, and to what extent he was compliant is a relevant consideration. Unfortunately, the information that I have is unclear. I was not provided with his medical records, nor does it seem that Dr. Ramshaw had access to comprehensive records. She received information from Mr. Caines’ wife about the period prior to the fall of 2021. Much of this is hearsay and, for the purposes of this court proceeding, considerably less reliable than medical records of a treating physician. I do accept that in 2018 Mr. Caines was admitted to Scarborough Centenary Hospital on a Form 1, and left the hospital against medical advice when the Form I was rescinded. He did not go to day treatment as his wife suggested, and subsequently committed the driving-related offences for which he was convicted in 2019.
77With respect to the fall of 2021, Mr. Caines told Dr. Ramshaw that his family physician switched him from a slow release dosage to a fast release dosage of Seroquel and that he was feeling tired. It seems that Mr. Caines’ wife told Dr. Ramshaw that he had not been taking his medication in the fall, but it was not clear to Dr. Ramshaw, nor is it clear to me, exactly when he was not taking it. The records of the Collingwood hospital indicate that in the latter part of December 2021 his wife expressed concern to hospital personnel about his medication compliance. I note that on December 20, 2021, he left the Collingwood hospital with advice to follow-up with his GP. There is no evidence before me that he pursued any follow-up, although for about a week before the killing he was picking up some kind of prescription medication at a Collingwood pharmacy. It is not clear to me whether this was Suboxone for his opioid issue, or something else, as I was not provided with the pharmacy records.
78Based on this incomplete record, and taking into account Mr. Caines’ behaviour from which reasonable inferences can be drawn, I conclude that there were times when he was non-compliant with medical advice and with prescribed medication, most particularly in late December 2021 and into January 2022. I am unable to conclude, however, that his non-compliance was consistent over the years, that he will be non-compliant in the future, or that he will not follow treatment in the future. I note that while at CNCC he was seen by Dr. Lorberg. There is no information that Mr. Caines was uncooperative or non-communicative with the physician. With a couple of exceptions, he has taken his numerous prescribed medications while in custody. In March of this year, he asked that his morning dose of Seroquel be discontinued, but he continued to take it at night. In August 2022 he refused crushed bupropion, but it is unclear whether that was a standing refusal, and it is unclear whether he received the medication in another form.
79There is evidence from Dr. Ramshaw of Mr. Caines’ current mental condition. He of course continues to suffer from bipolar disorder. Because he is in jail, he has received no treatment other than mood-stabilizing and other medications. Nonetheless, when Dr, Ramshaw met with him via video in February 2023, there were no evident delusions or perceptual abnormalities. He was pleasant, cooperative, and seemingly forthcoming. He had improved insight into his mental illness and prior symptoms. He told Dr. Ramshaw that he felt terrible about killing his brother, and became tearful when talking about it. He was upset at the notion that he could have killed others including his wife, had they been with him at the time.
80Dr. Ramshaw recommended that Mr. Caines have close psychiatric care for monitoring, support, and medication management, and that he be monitored for any change in his mental status and risk of aggression. She did not perform a violence risk assessment of Mr. Caines, nor did she comment on whether, from a psychiatric perspective, Mr. Caines is an HRA. Unlike some of the cases I referenced earlier, I do not have the benefit of an assessment of Mr. Caines’ future risk.
Conclusion
81Mr. Caines has a longstanding, lifelong, significant mental illness that involves mania and psychosis. While in the throes of that illness, he viciously killed his brother.
82There is a pattern of repetitive violent behaviour associated with psychosis of which the killing of Donald forms part, but it is a weak pattern. Without comparing the objective seriousness of events, the nature of incidents prior to January 14, 2022, is different from Mr. Caines’ attack on his brother.
83I recognize that Mr. Caines will require mood-stabilizing medication for the rest of his life. At this time, he is taking medication. He is not psychotic, he has improved insight into his mental illness and prior symptoms, he is remorseful for killing his brother, and he realizes that he could have harmed others had they been present at the time. He has the ongoing support of his wife. To be clear, there is no question that he needs intensive treatment in a controlled setting. But, his current circumstances demonstrate his amenability to treatment, including compliance with a medication regime.
84Mr. Caines has yet to commence treatment. There is no evidence before me that his illness is considered to be resistant to treatment. Nor is there evidence before me that Dr. Ramshaw’s recommendations for close psychiatric care and monitoring cannot be achieved unless an HRA designation is made. Dr. Ramshaw did not express that opinion.
85On the evidence before me, and having regard to the absence of relevant information I have mentioned, I am not satisfied on a balance of probabilities under s. 672.64(1)(a) that there is a substantial likelihood that Mr. Caines will use violence that could endanger the life or safety of another person.
86The killing of Donald Caines was of a brutal nature. But, on the evidence before me, and having regard to the absence of relevant information I have mentioned, I am not satisfied on a balance of probabilities that under s. 672.64(1)(b) Mr. Caines’ act of killing his brother was of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.
87The application to have Mr. Caines designated a high-risk accused is dismissed.
88I otherwise make no disposition. I refer the matter to the Ontario Review Board for disposition. I request that the Board give careful consideration to the recommendations of Dr. Ramshaw.
89I order that Mr. Caines provide samples of bodily substances for the purpose of DNA analysis.
Justice M.K. Fuerst
Released: October 3, 2023
NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Judgment and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.
ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – LAWRENCE ROBERT CAINES Defendant REASONS FOR JUDGMENT Justice M.K. Fuerst Released: October 3, 2023
Footnote:
1R.S.O. 1990, c. M.7
