Court File and Parties
Ontario Court of Justice
Date: 2018-03-29
Court File No.: Toronto, College Park 4817-998-16-75005332
Between:
Her Majesty the Queen
— and —
Diego Carlos Roy-De-Villers
Before: Justice J.W. Bovard
Heard on: January 24, 2018
Ruling given on: March 7, 2018
Written reasons for Ruling released on: March 29, 2018
Counsel
Ms. E. Middelkamp — counsel for the Crown
Ms. A. Nathan — counsel for the accused Diego Carlos Roy-De-Villers
Reasons for Ruling
Bovard J.:
Introduction
[1] These are the court's reasons for its ruling on the Crown's application for an assessment order with regard to whether Mr. Roy De Villers was "suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16 (1)" of the Criminal Code when he committed the aggravated assault to which he pleaded guilty before me.
[2] On January 24, 2018, Mr. Roy De Villers, a 26-year-old man, pleaded guilty to aggravated assault, which he committed on November 11, 2016. The Crown made an application for an assessment order under s. 672.11 (b) of the Criminal Code (not criminally responsible at the time of the commission of the offence due to a mental disorder).
[3] The defence agrees that Mr. Roy De Villers suffers from a mental disorder as described in subsection 16 (1), but opposes the application.
Issue
[4] The issue is whether the Crown proved that there are reasonable grounds to believe that the evidence that an assessment order would provide into Mr. Roy De Villers' mental condition is necessary to determine whether at the time that he committed the offence he was "suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16 (1)" of the Criminal Code.
The Evidence
[5] The parties submitted two agreed statements of fact (exhibits 2, 5). They state the following:
Statement #1 (January 24, 2018)
On October 4, 2016, at 11:58 hours, Mr. Diego Roy De Villers was on board a Greyhound bus travelling from Sudbury to Ottawa. The driver of the vehicle contacted the police as a result of Mr. Diego Roy De Villers' behaviour on board the bus. The call was characterized as a Mental Health Act call.
Police Constable Kutschke, a member of the Ontario Provincial Police, responded to the radio call. She travelled to the corner of Highway 17 and Sutherland Road in the Township of Whitewater Region. When she arrived on scene, the greyhound bus was stopped on the side of the highway. Her colleague, Police Constable Macleod, had arrived first on scene and had apprehended Mr. Diego Roy De Villers under the Mental Health Act. Mr. Diego Roy De Villers was in the back of PC Macleod's scout car.
PC Kutschke investigated the scene and the bus driver provided her with Mr. Diego Roy De Villers' bag from the greyhound bus based on the tag on the bag which was associated to Mr. Diego Roy De Villers' ticket. PC Kutschke took custody of the bag.
PC MacLeod transported Mr. Diego Roy De Villers in his scout car to Pembroke Regional Hospital. PC Kutschke followed in her scout car. At the hospital, Mr. Diego Roy De Villers was seen by a mental health nurse and emergency physician, Dr. Garretto. Dr. Garretto assessed Mr. Diego Roy De Villers. Dr. Garretto advised PC Kutschke that he would be forming Mr. Diego Roy De Villers and sending him to the Royal Ottawa Hospital for an assessment.
PC Kutschke searched Mr. Diego Roy De Villers' bag at the hospital as it would be travelling with him to the hospital. They located three prohibited knives, one small knife and a package of utility box cutters in his bag. The officers seized the knives. However, due to Mr. Diego Roy De Villers' mental state they formally warned Mr. Diego Roy De Villers and did not arrest him for any criminal charges.
PC Kutschke observed that Mr. Diego Roy De Villers was agitated, however he remained passive and compliant with police while in police custody.
PC Kutschke remained with Mr. Diego Roy De Villers at Pembroke Regional Hospital until 18:10 hours. She was advised by Dr. Garretto that someone from the Mental Health floor would attend and watch Mr. Diego Roy De Villers until he was transported to the Royal Ottawa Hospital.
Statement #2 (November 29, 2017)
On Friday, November 11, 2016, at approximately 11:18 a.m. Diego Roy De Villers, a resident of Maxwell Meighen Shelter at 135 Sherbourne Street, entered the lounge area through a small corridor on the north east corner of the lounge.
He proceeded through the lounge and sat down on a chair. Approximately four minutes later, Mr. Roy De Villers got up and walked across the lounge towards the victim, Hamse Mohamed. Mr. Roy De Villers was carrying a flip style knife in his right hand. The knife had an approximately 3-4 inch blade.
Hamse Mohamed was sitting in a chair on the north east corner of the lounge. Mr. Roy De Villers approached Mr. Mohamed and, without provocation, attacked Mr. Mohamed stabbing him multiple times. No words were spoken by Mr. Mohamed to Mr. Roy De Villers just prior to the attack. Mr. Roy De Villers was screaming during the attack. Several staff members of the shelter and other individuals were present at the time of the attack. During the attack, Mr. Mohamed said, "somebody please help me, somebody make him stop."
Approximately one minute and 15 seconds later, Mr. Mohamed managed to escape through a stairwell off of the lounge area. Ms. Allen, an employee of the shelter, assisted Mr. Mohamed by giving him a towel as he was bleeding profusely. He remained in the stairwell and was transported by ambulance to St. Michael's hospital.
Mr. Roy De Villers, in an enraged state, began yelling and screaming. He threw the knife that he used to stab the victim against a window in the lounge area, smashing it and the knife fell onto the floor of the lounge. He then went to his backpack, which he had left on the floor of the lounge, and grabbed a machete style knife with an approximately 14 inch blade, holding it in his right hand.
Mr. Roy De Villers then exited the lounge area and entered the intake area of the shelter. Mr. Roy De Villers was carrying the machete and banging it on the nearby walls and glass enclosures. Several staff members of the shelter were present in the intake area during this time. Mr. Roy De Villers was continuously yelling and screaming while the machete was in his hand. Shelter employees contacted 911. The attack and Mr. Roy De Villers' subsequent actions were captured on the surveillance footage at the shelter.
Marc Falarteau, a staff intake worker at the shelter, observed Mr. Roy De Villers holding the machete in the intake area. Marc Falarteau observed that Mr. Roy De Villers was screaming things that didn't make sense to him, except for "call the police."
Jessica Muir, another employee of the shelter, observed the stabbing and Mr. Roy De Villers' subsequent actions as he was carrying the machete.
Mr. Roy De Villers then exited the shelter and went out onto Sherbourne Street. He was still carrying the machete in his right hand. PC Hawley was the first officer to arrive on scene. He observed Mr. Roy De Villers in front of the shelter. Mr. Roy De Villers was enraged and he was yelling at someone on the steps of the shelter.
Mr. Roy De Villers' first language is French, and he has been assisted by the French interpreter while these charges have been before the courts.
As PC Hawley approached Mr. Roy De Villers the first ambulance arrived on scene. Sergeant Thornton arrived on scene just behind the first ambulance. He had the in car camera on his squad car activated at the time. Mr. Roy De Villers began walking southbound on Sherbourne towards Sergeant Thornton. Sergeant Thornton exited his vehicle with a taser pointed at Mr. Roy De Villers. PC Hawley and Sergeant Thornton approached Mr. Roy De Villers issuing several commands to him to drop the machete. Mr. Roy De Villers ignored their commands and continued to hold the machete in his right hand. Sergeant Thornton then deployed his taser at Mr. Roy De Villers' chest. The taser did not appear to have any effect, so Sergeant Thornton continued to command Mr. Roy De Villers to drop the machete.
Mr. Roy De Villers ignored his commands, and Sergeant Thornton deployed his taser a second time, directing it at Mr. Roy De Villers' back as he turned to the side. Mr. Roy De Villers dropped to the street continuing to hold the machete in his right hand. Sergeant Thornton approached Mr. Roy De Villers and grabbed the machete and ripped it out of his hand. Other officers assisted PC Hawley and Sergeant Thornton and Mr. Roy De Villers was taken into custody. PC Konecny seized the machete from the scene.
PCs McDonald and Konecny remained with Mr. Roy De Villers. Sergeant Thornton then entered the shelter to find the victim. When he exited the shelter he asked Mr. Roy De Villers if he was okay. Mr. Roy De Villers stated, "that guy I stabbed, I hope he dies. I wish you would have shot me."
Upon search incident to his arrest, PC Konecny located a black folding knife in Mr. Roy De Villers' right front pocket. After being cautioned by PC McDonald, Mr. Roy De Villers stated, "I wish he died." Approximately 1-2 minutes later as Mr. Mohamed was being wheeled out in a stretcher, Mr. Roy De Villers yelled towards Mr. Mohamed, "die fucker."
While he was being transported to the hospital on board an ambulance, Mr. Roy De Villers stated, "he's not dead?" At the hospital, Mr. Roy De Villers stated, "I didn't stab the guy in the back. I stab him in the face." Later, Mr. Roy De Villers stated, "14 times, I was trying to stab someone more. I will shoot someone." Mr. Roy De Villers was medically cleared at the hospital and transported to 51 Division.
During the level III search, officers noted a stab wound to his leg and he was transported back to Toronto Gen. Hospital. His stab wound was treated and he was taken back to 51 Division.
Injuries
Hamse Mohamed was transported from the scene via ambulance to St. Michael's Hospital. He suffered a total of 15 stab wounds. Approximately 8 stab wounds were to his chest, 4 stab wounds to his upper abdomen and 3 stab wounds to his left arm. The multiple isolated stab wounds were all approximately 1-3 centimetres in length and they were repaired with a combination of sutures and skin staples.
Upon his admission to hospital, a CT scan was performed which revealed a hemopneumothorax on the right side of his chest with an associated laceration involving the upper lobe of his right lung. A chest tube was inserted under conscious sedation and the tube was removed after re-expansion of his lung on straight drainage. Follow up CT scans were performed during his hospital stay and there was no evidence of residual hemopneumothorax. Mr. Mohamed remained in hospital for 12 days until November 22, 2016.
[6] In addition to the agreed statements of fact, the Crown introduced on consent two reports from Waypoint Centre for Mental Health Care in Penetanguishene, Ontario.
First Report (December 30, 2016)
Mr. Roy De Villers was admitted to Waypoint on December 2, 2016 pursuant to a treatment order (November 29, 2016) and an assessment order (November 28, 2016) made by the Ontario Court of Justice at Old City Hall in Toronto. He was "floridly psychotic" when he was admitted on December 2, 2016.
Mr. Roy De Villers was "severely psychotic and disorganized until very recently".
Mr. Roy De Villers said that he had been admitted to hospital previously on two occasions in the Ottawa region. During one of these times the doctor diagnosed him with schizophrenia. The doctor treated him with an antipsychotic medication. Mr. Roy De Villers said that he stopped taking the medication on his own because he felt that he could control himself without it.
Mr. Roy De Villers was admitted to a hospital under the Québec Mental Health Act when he was 11 years old. This was in relation to assaultive behaviour towards his father. He said that he was diagnosed with attention deficit hyperactivity disorder. Over the years, doctors have prescribed various medications for his medical conditions.
Mr. Roy De Villers was "agitated and threatening during his first 2 to 3 weeks at Waypoint". He eventually calmed down and the doctors were able to interview him on December 30, 2016.
Mr. Roy De Villers was "receptive to counsel that, given recurrence of symptoms after his recent stoppage of medication, it will be important for him to take antipsychotic medication indefinitely".
On December 29 and 30, 2016 the doctors interviewed him with respect to the issue of whether he was fit to stand trial. The doctors concluded that Mr. Roy De Villers "has recently become fit to stand trial".
The doctors concluded that if Mr. Roy De Villers takes his medications "he will likely not experience substantial mental deterioration". The doctors said that Mr. Roy De Villers was "somewhat receptive" to their advice to continue with his medication. However, they found that he had an "unfounded confidence" in his ability to stay well without medication.
Mr. Roy De Villers did not meet the criteria for involuntary admission to hospital according to the Mental Health Act of Ontario.
Second Report (August 18, 2017)
Mr. Roy De Villers was admitted to Waypoint on July 17, 2017 under a treatment order issued by the Ontario Court of Justice at Old City Hall in Toronto. At the time he was facing charges of attempted murder, aggravated assault, carry concealed weapon, assault with a weapon, possession of a weapon for a purpose dangerous to the public peace, and mischief under $5000. (The aggravated assault is the one to which he pleaded guilty before me).
The doctors made the following comments regarding Mr. Roy De Villers' behaviour during his incarceration at the Toronto South Detention Centre between January 3, 2017 and June 19, 2017 (page 4). The defence does not agree with them. These are their observations:
a. Mr. Roy De Villers was hearing voices.
b. By March 14, 2017, he was refusing to take medications because the injections were painful. In addition, the medication was causing "growth of breast tissue". He also refused non-injectable medication. However, after meeting with a psychiatrist he agreed to take it.
c. As of April 18, 2017, he made a "shank" and had thoughts of hitting others. He admitted to hearing voices and reported violent ideation.
d. As of April 22, 2017, he said that he made the shank to protect himself.
e. As of May 17, 2017, he was refusing to take his medications, injected or oral. He finally agreed to take an oral medication. The next day he "abraised" his hands by punching the walls.
f. Mr. Roy De Villers was "responding aggressively to voices while denying commandatory hallucinations".
g. On May 19, 2017, he was punching himself in the head. He was "visibly responding to hallucinations".
h. A "Form 1" was issued and he was taken to the hospital. It is not clear whether he was admitted.
i. By late May 2017, Mr. Roy De Villers was back on his medication. However, he still refused it on occasion.
j. On June 19, 2017, he went into the Centre for Addiction and Mental Health. The defence does not agree with the report with regard to what it says on page 4 about his stay at the Centre.
k. The report stated that while at the Centre for Addiction and Mental Health they found Mr. Roy De Villers sharpening a spoon. In addition, other spoons were found in the vents of his room. He was extremely psychotic. The medication that they were giving him was ineffective.
l. The doctors found Mr. Roy De Villers unfit to stand trial. The court issued a treatment order that appointed Waypoint as the receiving hospital.
m. When he was admitted to Waypoint Mr. Roy De Villers "displayed an intense stare and was internally preoccupied". They put him in seclusion "due to his psychotic and guarded presentation and the recent history of making weapons while detained".
n. Mr. Roy De Villers said that he last heard voices around August 2, 2017. However, the staff at Waypoint saw him occasionally talking to himself. He stated that he "never heard voices". This contradicts his previous admission to having heard voices.
o. The hospital granted Mr. Roy De Villers ward privileges. They report that he has not behaved violently during this admission to Waypoint. In addition, there is no evidence of further "weapon-making". He also denied feeling threatened by fellow patients or the Waypoint staff.
p. The doctors diagnosed Mr. Roy De Villers with schizophrenia.
q. The doctors stated that Mr. Roy De Villers "has recently become fit to stand trial".
r. The doctors concluded that there is "ample evidence of severe mental disorder, namely schizophrenia. Should the Court determine that an assessment pertaining to criminal responsibility is warranted, it is recommended that Mr. Roy De Villers return to Waypoint. We will be holding his bed for this purpose".
[7] The defence argued that under s. 672.21 (2) of the Criminal Code, Mr. Roy De Villers statements in these reports are inadmissible because they are "protected statements".
[8] The Crown consents to proceed with this application as if they were "protected statements". On this basis, but without deciding whether the statements are "protected" or not, I will proceed with the application as if Mr. Roy De Villers statements are "protected statements" under s. 672.21 (2).
Ms. De Villers' Testimony
[9] Ms. De Villers testified that Mr. Roy De Villers is her son. She and her husband adopted him when he was two years old. He had trouble bonding with her. Around the age of 8 to 10 years there was a "follow-up" but there was no diagnosis.
[10] He was treated in a pediatric psychiatric department at the hospital. They diagnosed him with Open Hyperactive Affective Disorder. At 10 years old he started seeing a psychiatrist.
[11] He was diagnosed with an illness that she could not recall. The psychiatrist prescribed medication for him. She helped him take the medication. He continued to see a psychiatrist after he was 18 years old. He took antipsychotic medication, which helped him but in 2016 he stopped taking his medication.
[12] He expressed concern about the computer that they had in their house. He thought that somebody could obtain information from it. Consequently, he destroyed it with a hammer.
[13] From the summer to the fall of 2016, Mr. Roy De Villers became more distant. He decided to go to Vancouver to learn English. He also told her that he had to leave Québec because he had done a serious thing and that he had to leave for the sake of their safety.
[14] In October 2016, he called her from the psychiatric ward of a hospital. He told her that he was on a bus going to Ottawa and there were persons who thought that there was a bomb in a suitcase. He asked the bus driver to drop him off. He threatened the driver with a pencil.
[15] The driver let him off the bus. The police came and took him to a hospital in Ottawa. He was released quickly and then taken to another hospital where he stayed for three weeks.
[16] From there he went to Toronto. He stayed in touch with her by telephone and text. He gave himself a false name with which to text in order to protect himself. He stopped taking his medications and became more aggressive. He bought a knife. A few days before the assault he accused her of having raped him. His phone calls became increasingly aggressive. He said that he had the impression that he was in a jungle and that he had to defend himself. He was living on the street and in shelters at the time.
[17] November 10, 2016, was the last time that she spoke to him before the assault. He was aggressive and accused her of having assaulted him. He said that no one was helping him, including her.
[18] In spite of his verbal aggressiveness towards her, he had never been physically aggressive towards her.
[19] That was all of the evidence for the Crown. The only evidence that the defence called was the three booking videos made by the police after Mr. Roy De Villers was arrested for aggravated assault, which is the charge that he pleaded guilty to before me.
The Criminal Code
[20] Next, I will refer to the parts of the Criminal Code that are relevant to the Crown's application.
s. 672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine …
(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);
s. 672.12 (3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if …
(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
s. 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.
The Jurisprudence
[21] With regard to the jurisprudence, the Crown cited R. v. Capano, a case in which the court agreed that there was enough evidence to satisfy the test in s.672.12 (3).
[22] The trial court found Mr. Capano guilty of breaching a condition of his probation order that required him to attend CAMH for counselling. The Crown asked the court to make an order for an assessment under s. 672.12 (3). The trial judge made the order based on the following evidence:
Two probation officers testified about a meeting with Mr. Capano and about directing him to attend at CAMH. Mr. Capano refused to do so because he believed that the probation order was invalid and secondly, that the trial judge that made the order did not sign it. Neither of these things was true.
The probation officers testified that Mr. Capano claimed that he had metal detectors and recording devices implanted in his body and was under surveillance.
A copy of a presentence report ordered by the judge that put him on probation was an exhibit in the trial. It contained hearsay evidence of the accused's mental state. The family begged the court to order him to undergo psychiatric assessment and obtain treatment. The family was concerned about his mental state.
A psychiatric report made five months before he was charged with breaching his probation. There is no evidence with regard to what was said in the report, however.
[23] The Court of Appeal said "based on this evidence, the trial judge properly concluded that the Crown had satisfied the requirements of s. 672.12 (3) (b)".
[24] The Court stated further that "for a judge to order an assessment under s. 672.11 (b) does not require that there be reasonable grounds to believe that the accused is actually exempt from criminal reliability-only that there be reasonable grounds to believe that further evidence of the accused's mental condition is necessary to determine whether the accused is exempt from criminal liability".
[25] Expert evidence is not required in order to make an assessment order under s. 672.11 (b), R. v. Bernardo.
[26] In the case at bar, the Crown also relied on R. v. Mathews. The court found the accused guilty of aggravated assault, assault with a weapon, possession of a weapon for purpose dangerous, and failure to comply with a recognizance. The court granted the Crown's application for an assessment order under s. 672.11 (b).
[27] The court relied on the following evidence:
An unprovoked knife attack at 4:30 in the afternoon on Toronto Public transit.
The position put forward by the accused at trial was illogical, contradictory, and nonsensical.
The accused's evidence was internally inconsistent, and inconsistent with the objectively provable facts.
The accused changed his evidence in particular aspects when he perceived that the story he was putting forward did not make sense.
Psychiatric evidence indicated that initially the accused denied having a psychiatric history despite having been treated in the past by more than one psychiatric hospital.
Previously, the accused had been found unfit to stand trial on multiple charges, including five assaults.
A psychiatrist interviewed the accused one month after the alleged offenses. The psychiatrist prepared a report two months after the alleged offenses, which concluded that the accused suffered from schizophrenia with auditory hallucinations and some degree of paranoia.
The psychiatrist concluded that just a few weeks after the offense the accused was "likely suffering from schizophrenia, with auditory hallucinations and paranoid thoughts."
The psychiatrist found that the accused's "level of insight into his difficulties is quite limited. His judgment is, at times, obviously impaired".
The psychiatrist found that the accused had a hard time telling the truth.
The accused engaged in denial of his mental health problems.
The accused told the psychiatrist that he was not involved in the alleged charges and that someone had given his name to the police out of spite.
The accused had no recollection of the alleged events or of even having a weapon at the time. He could give no "sensible account of what happened, or what he might have been thinking at the time". This was contradictory to his evidence at trial, where he said that he carried the knife for protection and that the victim was the aggressor, and that he acted in self-defence.
The psychiatrist concluded that a few weeks after the offenses the accused was "likely suffering from schizophrenia, with auditory hallucinations and paranoid thoughts". The psychiatrist said that there was a clear inference to be drawn that "at the time he committed the offenses, a mental disorder may have rendered Mr. Matthews incapable of appreciating the nature and the quality of his conduct, or from knowing that his conduct was wrong".
[28] In support of its argument against the Crown's application, The defence referred me to jurisprudence cited in Joan Barrett & Riun Shandler, Mental Disorder in Canadian Criminal Law (Toronto, ON: Lexis Nexis, 2006) updated to 2017. I will refer to case law that the authors cite in this text.
[29] Regarding being "incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong", the authors cite Cooper v. R., for the proposition that "The 'nature and quality of an act' refers to the physical character and consequences of the act, but not its penal consequences, or its psychological impact on the victim(s). The accused must be capable of measuring and foreseeing the physical consequences of his act".
[30] In Kjeldsen v. R., the Supreme Court of Canada stated that "To be capable of 'appreciating' the nature and quality of his acts, an accused person must have the capacity to know what he is doing; in the case at bar, for example, to know that he was hitting the woman on the head with the rock, with great force, and in addition he must have the capacity to estimate and to understand the physical consequences of which would flow from his act, in this case that he was causing physical injury which could result in death".
[31] In R. v. Sealy, the court stated that "reasonable grounds in the context of a section 672.11 application are predicated upon credibly based probability which dictate that an assessment order is called for."
[32] In addition, the defence referred me to R. v. Muschke. However, I agree with the Crown that this case is distinguishable because at paragraph 45 the court stated that although the Crown provided the court with a letter from a psychiatrist, there was "nothing in the letter which suggests that the psychiatrist had concluded the applicant suffered from a mental disorder of a severity which would absolve him from criminal responsibility".
[33] R. v. Ratti held that the fact that the act is motivated or a product of a delusion, while relevant, is not determinative.
[34] The defence also relied on R. v. Sun. However, that case, too, is distinguishable from the case at bar.
[35] In Sun, the accused "called or faxed the Ministry of Citizenship and Immigration numerous times, sending approximately 340 pages of materials, some of which included threats of bodily harm".
[36] In another incident, the accused caused the switchboard of a radio station to close down by placing so many calls that the switchboard jammed. The accused threatened the radio station because he thought that it was "interfering with his phone calls on his cellular phone".
[37] The police did not know whether Mr. Sun had ever been assessed by physician. Moreover, Mr. Sun's counsel stated that she did not have any difficulty in receiving instructions from him. She also stated that she had no basis to raise an issue with respect to the criminal responsibility of Mr. Sun.
[38] The court stated that "whether the evidence may have disclosed unusual or even unacceptable conduct the evidence did not disclose an inability on the part of the accused to understand the nature and consequences of his actions or that his actions were wrong, as contemplated by s.16 of the Criminal Code …"
[39] I am aware of Trotter J.'s observations in R. v. John Doe, which defence counsel provided to me. Justice Trotter (as he then was) stated:
On a more general level, the assessment provisions under Part XX.1 must be approached with great care, especially when the Crown attempts to invoke them ... an assessment under Part XX.1 is an entrance into a socially protective regime, one that is accompanied by significant deprivations of liberty. Accordingly, one must proceed with restraint when applying these provisions: (para. 35)
[40] Justice Trotter refused to make an assessment order under s. 672.12(3) (b). He pointed out that in spite of the Crown's evidence of John Doe's previous encounters with the criminal justice system "no witness (expert or otherwise) prepared an opinion or provided evidence before me, either orally or in writing, that the collection of materials assembled by the Crown permits the inference that there are reasonable grounds to believe that an assessment order should be made on the s. 16 issue" (para. 37).
[41] Justice Trotter pointed out that in the case before him there was "no more than … a possibility" that Mr. Doe was not criminally responsible when he committed the offences. He stated further that:
Even if I were prepared to make the necessary inferences from the record before me that there are reasonable grounds to believe that Mr. Doe suffered from a mental disorder at the time of the alleged offences, it is a significant leap to further infer that, at the critical time, there are reasonable grounds to believe that his disorder rendered him incapable of appreciating the nature and quality of his conduct or knowing that it was wrong. I agree that it is possible, but s. 672.12(3) ( b ) requires more (para. 40).
[42] I find that the case at bar is significantly distinguishable on its facts from John Doe. Notably, John Doe had not been diagnosed with a major mental disorder before or after he committed the offences.
[43] The Waypoint report of December 30, 2016 states that Mr. Roy De Villers told them that he had been diagnosed with schizophrenia in a hospital in Ottawa. I acknowledge that this is him self-reporting and, consequently, it may be inaccurate.
[44] However, as seen above, after Mr. Roy De Villers committed the offence, a psychiatrist diagnosed him with schizophrenia. This is clearly stated in the Report from Waypoint dated, August 18, 2017, which I reviewed above.
[45] The defence cited two other cases. In R. v. Williams, the court denied the Crown's application under s. 672.11 (b). The court stated at paragraph 18 that there was no medical evidence called at the hearing. This is a significant distinguishing factor from the case at bar.
[46] Finally, regarding R. v. Torangeau, I did not find this decision helpful to me in making the determinations that I have to make.
[47] With regard to understanding that an act is "wrong" as it is meant in s. 16, the Supreme Court of Canada stated in R. v. Chaulk that:
… it is plain to me that the term "wrong" as used in s. 16(2) must mean more than simply legally wrong. In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of "natural imbecility" or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society.
Disposition
[48] After considering all of the circumstances, the law, and counsels' submissions, I am satisfied that Mr. Roy De Villers understood the nature and quality of his act of stabbing Mr. Mohamed.
[49] However, the Crown has satisfied me "that there are reasonable grounds to doubt that Mr. Roy De Villers is criminally responsible for the offence on account of mental disorder" on the second prong of the test, which is whether he understood that it was morally wrong.
[50] I find on that basis that there are reasonable grounds to doubt that he is criminally responsible for the offence on account of a mental disorder.
[51] Consequently, I find that there are reasonable grounds to believe that the evidence that an assessment order would provide into Mr. Roy De Villers' mental condition is necessary to determine whether at the time that he committed the offence he was "suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16 (1)" of the Criminal Code, with regard to his appreciation of his acts being morally wrong.
[52] It is solely on that basis that I grant the Crown's application. Therefore, I make an order under s. 672.11 (b) that Mr. De Villers be assessed solely with regard to his appreciation at the time that he stabbed the victim that it was morally wrong in order to determine whether he was, at the time of the commission of the offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16 (1).
Written reasons Released: March 29, 2018
Signed: Justice J.W. Bovard
Footnotes
[1] I would like to acknowledge the help that Mr. Rick Frank, Osgoode Hall law student, gave me by his research into the issues that I had to decide in this case.
[2] 672.21 (1) In this section, "protected statement" means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction.
(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of …
(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;
[3] 2014 ONCA 599
[4] Ibid., para. 33
[5] Ibid., para. 34
[6] [1994] O.J. No. 4382 : This was a case where although the defence did not make its request for a psychiatric assessment pursuant to s. 672.11, the court granted it "in the form of an order pursuant to" this section
[7] [2014] O.J. No. 5125
[8] , [1980] 1 SCR 1149
[9] , [1981] 2 S.C.R. 617
[10] 2010 QCCQ 4504 , 2010 CarswellQue 15811 (C.Q.) para 107
[11] [1997] B.C.J. No. 2825 (BCSC)
[12] , [1991] 1 SCR 68
[13] [1999] O.J. No. 2821
[14] Doe [2011] O.J. No. 52 .
[15] See paragraph 3 of the contents of this report cited above
[16] [2014] O.J. No. 2156
[17] [2004] O.J. No. 4886
[18] , [1990] 3 SCR 1303, para. 107