Court File and Parties
Court File No.: Toronto
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Emile Joseph Deguire
Before: Justice Paul H. Reinhardt
Heard on: 10 August 2012 & 6 March 2013
Reasons for Ruling released on: 18 April 2013
Counsel:
- Katalin Kirec, for the Crown
- Frank Bernhardt, Amicus Curiae
- The defendant, Emile Joseph Deguire, on his own behalf
REINHARDT J.:
Charges and Guilty Pleas
[1] On 10 August 2012, Emile Joseph Deguire pleaded guilty before me to two Criminal Code offences, committed on 30 April 2012, in the City of Toronto in the Toronto Region:
(1) That he did, without legal justification or excuse and without colour of right wilfully interrupt the operation of the Toronto Dominion Bank by causing a disturbance, thereby committing mischief; and further;
(2) That he did, while bound by a probation order made on 8 March 2012, by Justice R. Bigelow at the Ontario Court of Justice, Old City Hall, 60 Queen Street West, fail to comply without reasonable excuse to the said order, to wit: keep the peace and be of good behaviour.
[2] Prior to the arraignment, I conducted an open court plea inquiry with Mr. Deguire and at that time I was satisfied that there was compliance with the statutory requirements of section 606 (1.1) to accept a plea from the accused. In other words, I was satisfied that Mr. Deguire understood the nature and consequences of his plea.
[3] In the resultant arraignment and pleas, Mr. Deguire admitted that on 30 April 2012 at approximately ten minutes to nine in the morning he was in the vestibule of the Toronto Dominion Bank premises at 890 Danforth Avenue in Toronto and when a bank employee told him to leave, he declined and caused a disturbance by swearing and yelling at the staff and customers. Mr. Deguire admitted that he refused to leave when requested to do so, and remained in the vestibule and masturbated. He admitted that the police were called and he was arrested.
[4] Mr. Deguire also admitted that by causing a disturbance at the TD Bank that morning he was in breach of the probation order made 8 March 2012 by Justice Bigelow that he had signed which required him to keep the peace and be of good behaviour.
[5] At the request of the Crown, Mr. Deguire also admitted, for the purposes of the sentencing hearing, that on 4 January 2012 he was sleeping at the TD Bank at Bay and Queen and was asked to leave.
[6] On the day of the guilty plea, after the accused admitted the facts as read by the Crown, and I had made findings of guilt, the Crown requested and I granted an order for an assessment to attempt to determine whether at the time of the commission of the two above offences, on 30 April 2012, Mr. Deguire was criminally responsible by virtue of a mental disorder (hereinafter referred to as "NCRMD") for his admitted actions.
[7] Mr. Bernhardt, appearing as court-appointed counsel ("amicus"), did not contest the ordering of the assessment, but indicated that he would reserve the right to contest the results of the assessment.
[8] Based upon the court record and the submissions of counsel, I was satisfied that there were reasonable grounds to doubt that Mr. Deguire was criminally responsible at the time he committed the offences to which he has pleaded guilty, and therefore a basis to order an assessment.
[9] Pursuant to my order, Dr. Angus McDonald of the Centre for Addiction and Mental Health in Toronto prepared a medical report dated 30 August 2012 in which he found that, in his opinion Mr. Deguire was NCRMD.
[10] On 6 March 2013 Dr. McDonald testified before me and was examined by both counsel as to the basis of his conclusion.
[11] At the conclusion of that testimony, the Crown submitted that I should make the finding of NCRMD based upon the evidence, the medical report and the opinion of Dr. McDonald. Mr. Bernhardt, as amicus, and Mr. Deguire opposed that finding.
2: THE NCRMD LEGAL FRAMEWORK
Defence of Mental Disorder
- (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.
R.S., 1985, c. C-46, s. 16 ; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 43, s. 2.
(For a full discussion of the history of section 16, and the legal interpretation of these statutory definitions and the code of procedure for the reception of psychiatric evidence on the issues of fitness and criminal responsibility in the courts, see Hy Bloom, LL.B., M.D.' F.R.C.P. (C.) and the Hon. Richard D. Schneider, PH.D, LL.M, C. Psych., Mental Disorder and the Law: A Primer for Legal and Mental Health Professionals, Irwin Law, 2006.)
[12] In his seminal paper on the defence of insanity, as set out in the predecessor wording of s. 16 of the Criminal Code, delivered on 13 & 14 March 1964, at a postgraduate course on forensic psychiatry at the Faculty of Medicine at the University of Toronto, G. Arthur Martin, as he then was, stated:
There has been no branch of the criminal law that has been so vigorously criticized as the law relating to the defence of insanity. This criticism has emanated both from the legal profession and the medical profession.
[13] Over the last almost fifty years since Martin's paper, much has changed in the legal landscape regarding s. 16. With the proclamation of Bill C-30 in 1992 we now have a statutory code of procedure for the disordered accused generally and for the trials of criminal responsibility specifically. This procedural framework has given the legal and medical professions guidance and the courts rules on how to deal with the escalating numbers of mentally disordered accused who have found their way into the criminal justice system. It has provided a useful tool to adjudicate fitness and led to the development of specialised "Mental Health Courts", in many jurisdictions, including here at Old City Hall in Toronto. In these specialized courts, psychiatric clinicians attend and interview accused during the court day, and generally testify the same day on the issue of fitness, which improves substantially, the legal adjudication of fitness in these special court settings and provides for prompt and authoritative results. (See the Hon. Richard D. Schneider, PH.D, LL.M, C. Psych., Hy Bloom, LL.B., M.D.' F.R.C.P. (C.) and Mark Heerema, B.A., LL.B., LL.M., Mental Health Courts: Decriminalizing the Mentally Ill, Irwin Law, 2007.)
[14] This new statutory regime has, arguably, assisted disordered accused in many respects in their encounters with the criminal justice system, but it has not, however, in my view, made the task of the adjudication of criminal responsibility any simpler for the legal and medical professions.
[15] Martin was making his comments when the language of s. 16 was that of "insanity" rather than "mental disorder". Moreover, prior to the 1992 amendments, which removed it, subsection 16(3) provided a defence as follows:
(3) A person who has specific delusions, but is in other respects sane, shall not be acquitted on the ground of insanity unless the delusions caused him to believe in the existence of a state of things that, if it existed, would have justified or excused his act or omission.
[16] Despite the deletion of that language, the essential structure of the legal test for NCRMD has not changed. The test today for finding a mental disorder that provides a defence of NCRMD is very close to the test at the time of Martin's essay:
- (1) No person shall be convicted of an offence in respect of an act or omission on his part while he was insane.
(2) For the purposes of this section a person is insane when he is in a state of natural imbecility or has a disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong.
[17] The old NCR test required then and the new NCRMD test today still requires that the court consider the state of mind of the accused at the time of the commission of the actus reus.
[18] The language in the Code, s. 16, then, parallels the language in the Code, today. They both require that at the time of the commission of the act or omission the accused was either:
(1) Incapable of appreciating the nature and quality of the act or omission; or
(2) Unable to know that the act or omission was wrong.
[19] In his paper, that includes many gems, Martin explains the difficulty of mixing the approach to mental illness that informs the therapeutic or "medical model" of mental illness which can be applied with relative certainty to the issue of "fitness" with the limited availability of mental deficiency as a defence in law. For the purposes of today's ruling I will refer only to a few points that Martin makes.
[20] These involve a consideration of whether the finding of not criminally responsible due to mental disorder as mandated by the Code, s. 16, is one that properly takes into account the current established medical knowledge regarding mental deficiencies and the deficient individual's accountability for their actions.
The Perspective of the Therapeutic or "Medical Model"
[21] Martin describes the threshold criticisms of the rules regarding criminal responsibility from the perspective of the therapeutic "medical model" of modern psychiatric knowledge as understood in the current state of the medical science of mental illness:
These rules have been criticized by the medical profession because they are based upon an invalid theory which is far removed from modern psychiatric knowledge. The rules assume that a person may be insane with respect to one or more subjects and yet sane in other respects, which is nonsense from a medical point of view because the mind is one and indivisible. There never was and never will be a person sane in some respects and insane in others. Criticism of the Rules is based upon the fact that they substitute a purely intellectual criterion for determining responsibility whereas it is argued that a seriously mentally ill person may know what he is doing and that it is wrong and yet by reason of disease of the mind be incapable of preventing himself from doing a harmful act. Mental illness affects not only intellectual functions but the functions of feeling and willing.
[22] Further in his introduction Martin states a second part of the "medical model" criticism only to shoot it down, while explaining the limited role of psychiatric testimony in the NCR hearing:
Another vigorous criticism of the law applicable to the defence of insanity has its basis in the argument that the definition of mental illness is a medical matter and not a legal matter. It is argued that the Criminal Code defines mental illness whereas the definition should be supplied by the psychiatrist. This latter criticism is quite invalid. The Criminal Code does not define mental illness. It simply defines the kind of mental illness that exempts from criminal liability. The Criminal Law proceeds on the assumption, rightly or wrongly, that those persons who are capable of appreciating what they are doing and knowing that it is wrong are capable of being influenced by the threat of punishment and therefore they should be held responsible or accountable for their actions. The court depends on the psychiatrist for information as to whether the accused is suffering from a "disease of the mind" within s. 16 and whether, if that is so, is of such a nature that is prevents the accused from appreciating the nature and quality of the act he is charged with committing, or from knowing that it was wrong. (Emphasis added)
[23] What Martin's paper does not fully address is the perennial problem for both the criminal law and the clinical treatment of patients: how to "see inside" a person's head, and how to properly evaluate their "state of mind" either in their immediate presentation or at another point in time.
[24] However, Martin's paper certainly sets the stage for more recent analysis.
[25] In Mental Disorder and the Law, supra, page 116, the authors suggest a number of areas where clinical experts may err in evaluating accused with respect to the NCRMD assessment:
- Failure to understand the legal standard for absent criminal responsibility;
- Assuming that mental disorder is synonymous with lack of criminal responsibility;
- Failing to hypothesize and deal with the prospect the accused is malingering;
- Relying on inadequate information; and
- Failing to address the accused's mental state with respect to each and every offence with which she is charged. (The error here is assuming that the dame mental state was operative so as to exempt the accused from responsibility with respect to each and every charge.)
[26] From the lofty vantage points of Martin's paper, and the more recent textbook by Messrs. Schneider & Bloom, let us now turn to the issues in the current case as they are framed by counsel and the accused, on his own behalf.
The Burden of Proof
[27] Subsection (2) sets outs the presumption of sanity until the contrary is proved on a balance of probabilities. Subsection (3) requires the party raising the issue of mental disorder, in this case the Crown, to bear the persuasive and evidentiary burden.
The Position of the Parties
The Position of the Crown
[28] Ms. Kirec relies upon the decision of Chief Justice McLachlin in R. v. Oommen, [1994] S.C.J. No. 60.
[29] Ms. Kirec submits that there is an abundance of evidence:
(1) The history of admissions and while under observation rapid decompensation and periodic threatening behaviour with no obvious logic or connection to the surrounding circumstances in which the threats of violence, or violence take place as documented in Mr. DeGuire's medical record and reviewed by Dr. McDonald in his report dated 30August 2012;
(2) The observations of Dr. McDonald in a two-hour interview with Mr. Deguire, made in order to prepare his report to the court, in which Mr. Deguire appeared to have no recollection of having even met Dr. McDonald, notwithstanding the fact that Mr. Deguire has been under Dr. McDonald's care at both Whitby and Penetanguishene psychiatric facilities.
(3) Mr. Deguire's view in his interview with Dr. McDonald, and in court that he was induced by the police officers and a white powdery substance to "display himself" at the TD Bank.
(4) The totality of the agreed facts and the circumstances surrounding the offences to which Mr. Deguire pleaded guilty.
[30] Ms. Kirec submits that Mr. Deguire has shown himself, both in his assessment reports and treatment history to be paranoid, to not hear correctly or simply not to listen to others when they are speaking to him, with the result that he responds in an often disconnected and inappropriate way to situations in which he finds himself.
[31] Ms. Kirec submits that he has a long history of major mental illness and this mental illness has been compounded with a chronic antisocial personality disorder.
[32] Ms. Kirec submits that this combination of factors causes Mr. Deguire to be eager to see contradictions and lack of consistency in the behaviour of others, and to act on his mistaken subjective impressions while ignoring these same behaviours patterns in his own actions.
[33] Ms. Kirec submits that Mr. Deguire in court consistently presents as emotionally volatile, without an ability to concentrate on the present and thus his ability to appreciate what is going on in court and generally is compromised and undermined.
[34] Ms. Kirec submits that Mr. Deguire has demonstrated in these offences unwillingness or an inability to appreciate and thereby be able to choose between the "right" and the "wrong" behaviour.
[35] Ms. Kirec submits that I should rely upon Dr. McDonald's opinion under the heading of "CRIMINAL RESPONSIBILITY" on page eight of his report and conclude that Mr. Deguire meets the definition of someone who, at the time of committing the offences to which he pleaded guilty, was unable to appreciate the "nature & quality" of his actions and was unable, at the time he committed the offences, of discerning that what he was doing was wrong.
The Position of Mr. Deguire
[36] In his submissions to me in court and in his statements both in court and recounted to this court by Dr. McDonald in his report, Mr. Deguire is, in Dr. McDonald's words:
aware that he is being assessed for criminal responsibility and is very much against this coming to pass.
[37] Mr. Deguire told me in his submissions at the end of the hearing that he had tried his best to answer Dr. McDonald's questions, and his anger as expressed in the TD Bank and in court is due to the unfairness of all of these events:
(1) Not being permitted to sleep in the bank when other people, in his experience, have been permitted to do so;
(2) That he was being influenced to "display himself" by the circumstances at the bank, and more particularly, by the police;
(3) That, despite his "occasional outbursts" he is really a kind person, not a violent person or an abusive & angry person.
The Position of The Amicus
[38] Mr. Bernhardt submits that, despite the Crown's assertion to the contrary, the assertion of Mr. Deguire's lack of criminal responsibility is not so clear.
[39] Mr. Bernhardt raises the concerns found in the legal textbook Mental Disorder and the Law by Schneider and Bloom, in terms of the potential for the potential shortcomings of clinical expertise when applying the legal NCRMD test.
[40] Inter alia, Mr. Bernhardt submits that it is significant that a previous attending psychiatrist, Dr. J. Rootenberg, who observed Mr. Deguire during the latter's inpatient stay and treatment at CAMH in December of 2006, was unable to make a finding that Mr. Deguire was NCR with respect to similar charges then before the court.
[41] Mr. Bernhardt submits that, more importantly, the Crown's evidence, and Dr. McDonald's report, fails to adequately address the question of Mr. Deguire's capacity at the time he committed the offence.
[42] In support of this submission, Mr. Bernhardt referred me to two recent decisions regarding criminal responsibility, both involving a review of the testimony of Dr. McDonald, in circumstances in which the Crown was making application for a finding that the accused was NCRMD.
The Recent Case Law
[43] In R. v. Cascagnette, [2011] O. J. No. 1354, Justice B.A. Allen heard an appeal by the accused from a trial judge's finding of NCRMD in which the accused was charged with three counts of assault and one count of utter a threat arising out of an incident on a subway car. The accused pleaded guilty and was assessed by a court appointed doctor who found him unfit. After a trip to the Ontario Review Board the accused returned to court and was found fit to stand trial. The Crown requested an assessment report, and on the basis of that report, which focused on the accused's medical background, the judge made an NCRMD finding. On appeal, Justice Allen concluded that the assessment report did not provide a reasonable basis for the finding, as it did not assist with a determination of the accused's capacity at the time he committed the offences. In the result, he quashed the finding and a guilty verdict was entered.
[44] In R. v. Guidolin, 2011 ONCA 264, [2011] O.J. No. 1649, the Ontario Court of Appeal allowed an appeal by the accused from a trial judge's verdict of NCRMD in a robbery case and imposed a sentence of one day in jail, reflecting 44 months already served and ordered a new trial on a companion charge of assault resist arrest. In that case, it was alleged that, in June of 2007 Mr. Guidolin confronted two women as they walked away from a bank machine and took the money that one of the women had just obtained from the bank machine, totally $240.00. He was charged with one count of robbery and two counts of resisting arrest. He was detained pending trial, and while detained his fitness was questioned and he was found unfit and a treatment order was made. He was subsequently, after treatment, found fit to stand trial.
[45] At trial, in December of 2007, Mr. Guidolin was represented by counsel and advanced a plea of NCRMD. The Crown did not oppose the plea. Dr. Angus McDonald prepared a report and the parties accepted the report without requiring Dr. McDonald to testify. The trial judge concluded that Mr. Guidolin had made out the NCRMD defence and remanded him to the jurisdiction of the Ontario Review Board, (the "Board") for disposition. Mr. Guidolin remained under the care of the Board until he was granted an extension of time to appeal the NCRMD finding in January of 2010. The perfection and hearing of the appeal was delayed for a number of reasons, including concern as to Mr. Guidolin's fitness to instruct counsel. For this reason, Mr. Guidolin's former counsel appeared as Amicus Curiae and Mr. Guidolin, the appellant, appeared on his own behalf.
[46] At the appeal, amicus counsel submitted that the verdict, based essentially on the report of Dr. McDonald, was unreasonable and should be set aside. He proposed findings of guilt and a sentence that would, if possible, permit continued treatment at the Whitby Psychiatric facility to facilitate the appellant's reintegration into the community.
[47] The appellant, who had now spent about three years and eight months in custody, mostly in maximum security psychiatric facilities, appeared on his own behalf. He supported the setting aside of the NCRMD verdict. He submitted that he was content that a conviction be entered on the robbery charge, but asserted that he had not assaulted the police, as alleged, and was not guilty of those two counts. The appellant further submitted that he was prepared and able to be released immediately and that he had plans to reconnect with various family members including his elderly mother.
[48] After reviewing the legal framework, Justice David Doherty concluded that the court could review the reasonableness of the verdict. After reviewing the record, which was primarily Dr. McDonald's report, and in which Dr. McDonald did not testify and was not cross-examined, Justice David Doherty found that the NCFMD finding was unreasonable.
[49] Justice Doherty initially expresses is concern about the procedure followed, where the report was simply filed, with examination under oath of Dr. McDonald.
[50] Justice Doherty then makes specific criticisms of Dr. McDonald's report.
[51] Justice Doherty quotes from Dr. McDonald's report in some considerable detail, and inter alia, refers to the following quotes from Dr. McDonald, while underlining for emphasis what he finds of concern in Dr. McDonald's stating of the issue. The quotes and underlying by Justice Doherty are repeated here:
[1] At this point I would regard Mr. Guidolin as Fit to Stand Trial. I will comment on this point on the issue of criminal responsibility or lack thereof . I am rather lukewarmly persuaded that this man qualifies, at least marginally, for a non-criminal responsibility finding. This is not because he has no capacity to recognize the wrongfulness of his actions or specifically the most recent act of robbery, indeed he can, but he is substantially morally indifferent , dismissively remarking at one point, "All I did was grab the money". When advised that the event in question had been recorded on video tape, he commented with some indignation, "They had a camera? But it was off hours!" He even acknowledged that he needed the money to buy drugs, as has his been his long term habit. Despite making such obvious inculpatory remarks, he was substantially evasive on many topics, as if acutely sensitive to the possibility of making his situation worse by talking about it.
This is the logical lead-in to the only possible way of seeing this man's actions as falling within the NCR rubric, i.e. he is often acutely psychotic, delusional, disorganized, and unable to exercise the judgment of a normal person (Oommen). While he does have significant antisocial tendencies of longstanding and has a long criminal record going back many years, he also has a major psychotic disorder which is predictably aggravated by his substance abuse.
[2] Perhaps the most relevant remarks he ever made about what might have been going on in his head at the time of the most recent robbery are the following: "They seem to know ... that I need money ... that's what drove me to do it ... I tried to ignore them, but mom not there, I was in dire need ... I was arrested a couple of days later ... my picture was on TV". It appeared that he was making references to auditory hallucinations, and he seemed to be suggesting that these had something to do with his committing the offence of robbery, but his account was disorganized and difficult to interpret.
[3] Although the psychiatric picture with this man is a mixed one with a significant antisocial component, I would support his candidacy for non-criminal responsibility status and would further remark that his manageability in the community without such disposition is totally unrealistic given his behavioural history. [Emphasis added.]
(See R. v. Guidolin, 2011 ONCA 264, [2011] O.J. No. 1649, (Ont. C. of A.), paragraph 20)
[52] After referring to these portions of Dr. McDonald's report, Justice Doherty gives three reasons in his judgment at paragraphs 22 to 24, why the report does not support the NCRMD finding under s. 16:
(1) Dr. McDonald appears to accept that Guidolin has the capacity to recognize the wrongfulness of his actions but simply does not care;
(2) Dr. McDonald opines that Guidolin is not able to exercise the judgment of a normal person;
(3) Dr. McDonald opines that Guidolin's auditory hallucinations had "something" to do with the commission of the offences, without concluding that Guidolin acted under the influence of any hallucination;
[53] In his concluding paragraph Justice Doherty states:
Dr. McDonald was obviously concerned about the appellant's manageability in the community and saw the NCRMD verdict as the best way to protect the community and hopefully offer the appellant some treatment. While that approach is understandable from the perspective of the psychiatric clinician, it is not a proper basis in law for an NCRMD verdict.
[54] Most importantly, in Guidolin, Justice Doherty found that there was nothing in the record or Dr. McDonald's report that could reasonably provide support for the assertion that Mr. Guidolin did not know that what he had done was wrong.
[55] In this judgment, Justice Doherty is giving a clear explication of the difficulties and the challenge of properly integrating and applying the expertise and perspective of the psychiatric clinician, to the legal test that must be met to support the NCRMD finding.
[56] In his reasons, Justice Doherty is also indirectly questioning the "proportionality" of the custody-time factor when a person, such as Guidolin finds themselves subject to an extended period of confinement because of the statutory procedures that arise when a person is found NCRMD and seeks to challenge that finding.
3: Application to the Facts of This Case
[57] In my view, the Crown in this case has indeed established that Mr. Deguire was NCRMD at the time he committed the offences to which he pleaded guilty before me.
[58] Mr. Justice Doherty's critique of Dr. McDonald's report in Guidolin can be distinguished from Dr. McDonald's report and testimony in this case, both in terms of Mr. Deguire's long-standing psychiatric profile over time, and in terms of Dr. McDonald's specific findings regarding Mr. Deguire at the time he committed these offences.
[59] Dr. McDonald's finding that Mr. Deguire would not be able to appreciate that what he was doing at the bank was wrong, clearly separates Mr. Deguire's diagnosis from that of Mr. Guidolin.
[60] Further, Dr. McDonald's assessment/observation that Mr. Guidolin fully understood that what he was doing when robbing the two women was wrong, but just didn't care, could not be applied to his assessment of Mr. Deguire.
[61] It must surely be acknowledged that the task of extrapolating from observed conduct and then attempting to interpret self-reported conduct, when the person reporting, is a person with significant difficulties in recounting events, is a challenge to the psychiatric clinician at the best of times. This difficulty was clearly evident in Dr. McDonald's attempt to interview his subject and to prepare his report on Mr. Deguire.
[62] The task of evaluating Mr. Deguire's clinical history and current assessment is no less challenging for a jurist.
[63] In my view, the overall picture that emerges of Mr. Deguire, from the medical reports and from his time before this court is not that of a person without any ability to be or stay fit, or to be "criminally responsible" for his actions.
[64] In my view, Mr. Deguire does not present as someone with absolutely no connection to his surroundings. Despite his periodic "disintegration" in court and in clinical & therapeutic settings, as documented above, it must be acknowledged that for a significant part of Mr. Deguire's time before this court, and as revealed in reports that describe his behaviour when interviewed for clinical assessment, Mr. Deguire has been able to function and participate in the community without incident.
[65] In my view, although his judgment, fitness generally and his fitness to stand trial specifically has, to put it mildly, fluctuated over the years, he has usually been able to benefit by treatment orders and as a result eventually appears before the court in sufficient lucidity to participate in the proceedings.
[66] Nonetheless, I have concluded that Dr. McDonald's report and his testimony in this proceeding, along with Mr. Deguire's clinical history and recorded conduct in this proceeding provide good and sufficient evidence on a balance of probabilities to conclude that Mr. Deguire, at the time he committed the offences before this court was:
(1) Suffering from a mental disorder;
(2) Not able to appreciate the nature and quality of what he was doing, and;
(3) Did not appreciate that what he was doing at the TD Canada Trust Bank on 30 April 2012 was wrong.
[67] Let me explain how I came to this difficult conclusion.
[68] In his concluding paragraphs of the report dated 30 August 2012 that he prepared on Mr. Deguire, and which is filed as an exhibit in this hearing, Dr. McDonald states as follows:
DIAGNOSIS
Mr. Deguire clearly suffers from a schizoaffective psychosis with marked paranoid features. When unwell, he is grossly thought disordered, agitated, delusional and unpredictable, with threats of aggression, or actual striking out. His situation is aggravated by chronic indulgence in street drugs, and alcohol, sometimes in heroic proportions. I have little doubt that he further has most of the features commonly associated with a diagnosis of antisocial personality disorder. This combination of problems renders him exquisitely unpredictable and a potential real threat to others on a recurring basis and this appears to have been the case for many years.
CRIMINAL RESPONSIBILITY
Despite a substantial degree of episodic incoherence, Mr. Deguire is aware that he is being assessed for criminal responsibility and is very much against his coming to pass. His reality contact, however, is grossly compromised at the best of times and even if he had the capacity to understand the rightfulness of any of his particular behavioural manifestations at any one time, he would be incapable of conforming his behaviour to social norms, rendering him, in my mind, an entirely appropriate candidate for a finding of non-criminal responsibility.
That Mr. Deguire's behaviour in the bank where he was arrested, and his failure to attend to probationary follow up, reflects his severe mental illness, rather than his antisocial personality disorder, appears abundantly clear.
[69] In his questioning of Dr. McDonald, and in his submissions to me, Mr. Bernhardt has asserted that this diagnosis while clearly making Mr. Deguire a "candidate" for a finding of NCRMD does not provide the basis for actually making such a finding. Mr. Bernhardt asserted to the court, and to Dr. McDonald in cross-examination, that the Mr. Deguire's long history of minor criminality, his diagnosis and behaviour patterns which are described in Dr. McDonald's report are consistent with Mr. Deguire's condition for many years and have not really changed. He moreover asserts that they do not really address with any certainty, Mr. Deguire's state of mind at the time of the commission of the offences to which he has pleaded.
[70] Dr. McDonald agreed with Mr. Bernhardt that Mr. Deguire's condition and diagnosis was long standing. He also conceded that he was not suggesting in his report, and could not say with certainty that Mr. Deguire's illness prevented him at all times from exercising judgment and control over his conduct.
[71] Dr. McDonald also agreed in cross-examination that, in his opinion, Mr. Deguire, on 30 April 2012 was responding, with anger to the bank staff's request that he leave. What he would not concede was that Mr. Deguire's anger was appropriate, or directed at the staff at the bank. He testified that he couldn't know for sure why Mr. Deguire was angry, that it could have been a general anger, and not specifically directed at the bank staff that day.
[72] Dr. McDonald hypothesized in his response to Mr. Bernhardt that Mr. Deguire might have considered himself under some duress or thought that he was being threatened while at the bank, but concluded that point by stating that he could not really be sure from his interview with Mr. Deguire, if that was what caused Mr. Deguire to behave as he did at the bank that day.
[73] Dr. McDonald conceded in cross-examination that Mr. Deguire's later attribution of coercion by the two police officers at the scene and the reference he made to white powder, may not have been accurate accounts of Mr. Deguire's state of mind at the time of the offences on 30 April 2012, simply because Mr. Deguire's ability to recall or report accurately on his previous actions is limited.
[74] Dr. McDonald testified that he believed that Mr. Deguire "probably" knew that he was masturbating, but had doubts as to whether Mr. Deguire knew that masturbating in public was illegal or wrong.
[75] After further questioning from counsel, Dr. McDonald concluded by saying that he believed that Mr. Deguire would have been incapable, at the time of the offences, of "considering whether or not such behaviour was or wasn't wrong" or able to make a rationale choice between right or wrong.
Analysis & Conclusion
[76] Joseph Emile Deguire is a forty-seven-year-old with many admissions to psychiatric facilities over his life. His criminal record dates back to 1988 and includes repetitive convictions for assaults, threatening and indecent acts, although all would appear to be of a minor nature, and do not pose a particular risk to society. His medical history includes more than 20 significant admissions for in-patient treatment in Ontario. He is appears to have abused street drugs and alcohol throughout his adult life.
[77] In my view, the report by Dr. McDonald established on a balance of probabilities that Mr. Deguire has suffered and continues to suffer from a major mental illness over many years and was so suffering at the time he committed of the offences at the TD Bank to which he has pleaded guilty.
[78] In his interview with Dr. McDonald on 30 August 2012, Mr. Deguire displayed incoherent moments and thought disorders that are documented in Dr. McDonald's report starting at page four under the heading "CURRENT MENTAL STATUS". Dr. McDonald summarized these parts of the interview as showing "a marked degree of thought disorder with paranoid and grandiose delusional thinking."
[79] It must be stated that Mr. Deguire has also demonstrated periods of relative lucidity while under observation in his in-patient settings, as documented by Dr. McDonald, and while attending this court proceeding on remand and during the hearing.
[80] However, it must also be stated that both in in-patient settings and while in court he has demonstrated rapid and marked decompensation followed by dramatic and continuing thought disorder, at which time he appears in layman's language "out of touch with his surroundings".
[81] It has been during his court appearances, when this happens, that fitness issues have been manifest, and findings made, followed by treatment orders.
[82] Dr. McDonald's report of 30 August 2012 concludes with the statement:
His reality contact, however, is grossly compromised at the best of times and even if he had the capacity to understand the rightfulness of any of his particular behavioural manifestations at any one time, he would be incapable of conforming his behaviour to social norms, rendering him, in my mind, an entirely appropriate candidate for a finding of non-criminal responsibility.
[83] In my view, this conclusion is supported by the doctor's careful testimony before me, as well as the record of these proceedings as a whole.
[84] For the purpose of this ruling, I have concluded that Mr. Deguire's historic periodic lucidity and ability to exercise normal judgment does not overcome the preponderance of evidence of his lack of appreciation of the nature and quality of his actions and his inability to make a rationale choice between right and wrong, in the time immediately before, during and after the offences to which he has pleaded guilty.
[85] I have therefore concluded that these deficiencies were in play and guiding his behaviour on 30 April 2012, and therefore, in my view, at that place and time he was not criminally responsible for his actions.
Disposition Hearing
[86] Accordingly, pursuant to section 672.54 of the Criminal Code, I would ask counsel to address me at their convenience as to the appropriate disposition order I should now make.
Released: 18 April 2013
Signed: "Justice Paul H. Reinhardt"