Court Information

Court: Ontario Court of Justice Location: Gore Bay Date: November 7, 2018

Between: Her Majesty the Queen

And: Levi Mishibinijima

Before: Justice V. Christie

Counsel:

• D. Beaton, for the Crown
• J. Weppler, for the defendant Levi Mishibinijima

Heard: October 4, 2018

Reasons for Judgment Released: November 7, 2018

Charge

That Levi Alexander Michael Mishibinijima on or about the 14th day of August, 2017 at the Village of Wikwemikong in the said region did endanger the life of Joseph Michael Gerald Mandamin thereby committing an aggravated assault contrary to Section 268 of the Criminal Code.

Judgment

Initial Proceedings

[1] On January 30, 2018, Mr. Mishibinijima pleaded not guilty to a charge of aggravated assault.

Agreed Statement of Facts

[2] Following the plea of not guilty, an agreed statement of facts was entered as Exhibit 1. The facts were as follows:

(1) On August 14, 2017, Wikwemikong Police Services (WPS) were dispatched to a reported stabbing which occurred at 2152 Kaboni Road.

(2) Officers attended to 2166 Kaboni Road in Wikwemikong.

(3) The officers had prior information from the Communications Centre (PCC) that Levi Mishibinijima was the suspect.

(4) At 2166 Kaboni Road the officers spoke with Darrin Mandamin who advised that the Accused fled on foot.

(5) The officers attended to 2152 Kaboni and observed Michael Mandamin. He had his left hand on his neck and officers noticed blood down the front of his shirt.

(6) Mr. Mandamin advised police that the Accused had stabbed him from behind in the neck and then fled the area. He further advised that the Accused was wearing all black clothing and had fled across a field.

(7) The officers maintained observation on a trail at the end of a field where it was believed that the Accused had fled.

(8) Mr. Mandamin was transported by ambulance to Little Current for medical attention.

(9) The WPS requested assistance from the Ontario Provincial Police (OPP) as well as the UCCM Police (UCCM). Officers from both those forces were dispatched to Wikwemikong and a search commenced.

(10) At 9:22 pm, the PCC advised that an April Simon called and that she advised the Accused had contacted her from a phone number she recognized as belonging to Kyle Johnson who resides at 482 Wikwemikong Way.

(11) Police attended to that location and the Accused was located in the driveway.

(12) The accused was arrested at 9:34 pm.

(13) The Accused blurted out that he was a murderer and that he killed his brother (the victim Mandamin) as the victim had killed his father.

(14) The Accused was cautioned to say nothing more, read his rights and transported to the detachment.

(15) Police interviewed Tim Pangowish who stated he observed the Accused run at Mr. Mandamin from behind. He heard impact noises and observed the Accused to strike Mandamin.

(16) Pangowish did not see any injuries or blood but did leave before police arrived. He further heard Mandamin to say that the Accused was crazy. He further heard the Accused say "I know you killed my father".

(17) At 2:15 am, the Accused was interviewed under caution. He told Sgt. Cooper that he was getting a "weird vibe" that was telling him to kill, something like a flare. Levi Mishibinijima said it was like, "I just thought it was like Bear Witch or Bear Walker, bad, bad vibes." He said that it was "like kinda taking control of me".

(18) Levi Mishibinijima told Sgt. Cooper that he could hear his father saying "Gwissehn, gwissehn" which means son in Anishnaabe. His father was telling him that the victim had hung him and that he needed to be free of him. Then he went on to say that the victim said something "like I killed your father or your father's dead in your mind control". He could hear his dad speaking. Then Levi Mishibinijima said, "….all I could hear is go ahead Gwiss stab him get it over with and leave and something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him."

(19) Levi Mishibinijima was asked by Sgt Cooper who did you tell that to and Levi Mishibinijima replied, "My father was telling me that".

(20) The knife used in this attack was taken from the Accused's grandmother's house.

(21) Mr. Mandamin was transported to Sudbury for further medical treatment.

(22) The Emergency Room Note from Manitoulin Health Centre dated August 14, 2017 indicates that Mr. Mandamin lost between 600 to 800 cc's of blood due to the nature of the dressings when he arrived at the hospital and what was suctioned from the wound. The report notes that the wound was in the neck, the wound direction was vertical and approximately 2 cm in length.

[3] The Court was further advised that Mr. Mandamin recovered from his injuries.

[4] Based on this agreed statement of facts, and as conceded by the parties, there is no question that Mr. Mishibinijima committed an aggravated assault on Mr. Mandamin at the time and place indicated. The Court had no difficulty concluding this beyond a reasonable doubt.

Initial Hearing to Determine Criminal Responsibility

[5] Counsel on behalf of Mr. Mishibinijima submitted that his client should be found not criminally responsible of this offence on account of mental disorder. Evidence and arguments were originally heard on January 30, 2018.

[6] The Court received a psychiatric report submitted by the defence dated November 14, 2017, authored by Dr. Beth Eayrs, a consultant forensic psychiatrist to Waypoint Centre where Mr. Mishibinijima was incarcerated at the time of the hearing. The report was marked as Exhibit 2. A copy of Dr. Eayrs' curriculum vitae was marked as Exhibit 4.

[7] Dr. Eayrs was called as a witness by the defence at this initial hearing. She was qualified by the Court to give expert evidence in the area of forensic psychiatry. The Crown agreed that Dr. Eayrs was qualified to give expert evidence in this area.

[8] It was the opinion of Dr. Eayrs that Mr. Mishibinijima was suffering from a psychosis, which took many weeks, if not several months, to gradually resolve. During that time, he was not using cannabis or other intoxicating substances. She explained that she did not have a lot of information from before the incident and she did not know how long he was in that state leading up to the incident. However, Dr. Eayrs, relying on a self-report from Mr. Mishibinijima, believed that the psychosis was present for a few months or longer. Dr. Eayrs diagnosed Mr. Mishibinijima as having schizophrenia.

[9] Dr. Eayrs did not believe there was any evidence to suggest this was a drug-induced psychosis. She did not receive any information that he had been using drugs on the day of the index offence or using substantial amounts in the weeks leading up to the offence. There was also nothing to suggest excessive alcohol at the time of the index offence.

[10] Following the preparation of her report, Dr. Eayrs was provided with the transcript of the taped police interview with Levi Mishibinijima from August 15, 2017. The content of the interview reinforced the conclusions that she came to in her report, as to Mr. Mishibinijima's state of mind at the time of the index offence, in two ways:

(1) The statements to Sgt. Cooper show a disorganized state of mind which is a typical feature of a psychotic episode and is common of untreated schizophrenia.

(2) The statements demonstrate paranoia toward the victim. He was influenced by hearing voices, seeing his father's spirit, and believed his father was speaking to him at the time, telling him what to do. Thought insertions are features of psychotic illness that point to a disturbed state of mind.

[11] According to Dr. Eayrs, Mr. Mishibinijima was acting on command when he was stabbing Mr. Mandamin. She indicated that Mr. Mishibinijima reported that he heard a voice telling him to stab the victim, which Dr. Eayrs described as command hallucinations. She also referred to the fact that he used the phrase "mind control" in his interview with police (p. 23). Dr. Eayrs explained that he believed someone could control his mind and that this is another symptom that occurs when someone is psychotic.

[12] In her report, commencing at page 9 of 11, Dr. Eayrs provided the opinion that Levi Mishibinijima likely suffered from a mental disorder on August 14, 2017. She confirmed this in her testimony, however, she indicated that it was difficult to say this directly in the report. She explained that she did not have any collateral information from friends or family, despite attempts that were unsuccessful, and there was simply no information about Mr. Mishibinijima's state of mind leading up to the events. However, Dr. Eayrs stated that it was reasonable to extrapolate backwards given that three weeks after the events, Mr. Mishibinijima was still psychotic and agitated and being influenced by his psychotic experience. He was not able to ignore or set aside his hallucinations and his behaviours were being influenced by the hallucinations.

[13] In Dr. Eayrs opinion, Levi Mishibinijima was psychotic at the time of the index offence. When asked whether this mental disorder would have rendered him incapable of appreciating the nature and quality of the act, she replied "no". She said, "I think he knew what he was doing….. I think he knew he was stabbing a human being." However, Dr. Eayrs stated, "…..but he was acting under the influence of his mental disorder…..He was not able to access rational choice…..He was not able to consider the wrongfulness of his actions.". She stated that Mr. Mishibinijima was overcome by the experience of hearing his father's voice and getting vibes. He was in the grip of a marked psychosis.

[14] Dr. Eayrs explained that when Levi Mishibinijima came to Waypoint, he did not get medicated for a period of time, and it was clear that he was very psychotic during this time. Mr. Mishibinijima asked for a consent and capacity hearing which delayed the process. His treatment with Paliperidone began in early October 2017. For a number of weeks after beginning the medication, he was still psychotic with good and bad days, but as time went by and the dosage increased, those days became fewer and fewer, and ultimately, he responded favourably to the medication. The last time Dr. Eayrs met Mr. Mishibinijima was the week before the hearing on January 30, 2018. She explained that there was still a certain vagueness to his thoughts, but his thoughts were more organized and his thought process was improving. There was no indication of paranoia and he was not distracted by internal stimuli, in other words, not hearing voices.

[15] With respect to the cumulative effect of drug and alcohol use by Mr. Mishibinijima, which was also referred to at page 2 of her report, Dr. Eayrs' impression was that he was describing heavy use of alcohol between 18 and 20 years of age, but that it was her impression that he had not used as much alcohol since then. She did not believe that alcohol contributed to his mental state. Dr. Eayrs believed, however, that it was more likely that the regular and significant use of cannabis would have contributed to the eventual emergence of psychotic illness. She explained that regular cannabis use throughout teenage years is a factor that can contribute to the emergence of a psychotic illness. Dr. Eayrs could not say whether or not he would have had the illness without using substances.

[16] Dr. Eayrs was "pretty certain" that he was psychotic at the material time, and the transcript of his police interview reinforced that opinion. She agreed that when a person is sliding into a psychotic state, it would start minimal and progress over time and agreed that the act of stabbing someone in August is an extreme action. Yet, Dr. Eayrs also agreed that in the days and weeks prior, they were not able to locate anything to show his behaviour was progressing toward a psychotic state, other than some comments from his self-report. There were no other sources of information that would assist, such as family, police reports, or medical files. It was suggested to Dr. Eayrs that the symptoms / behaviour could have started on the day in question. She agreed that it was possible but unlikely given his state of mind as evidenced from the interview on August 15 which showed his thoughts to be very disorganized and with reference to a variety of psychotic symptoms that continue for weeks after the material time, in the absence of substance use. She stated that the duration, severity, and presence of agitating behaviour that did not resolve until he received treatment, all supported her opinion that this psychotic state of mind was present on August 14 and likely weeks or months leading up to that point.

[17] In the opinion of Dr. Eayrs, Mr. Mishibinijima appreciated the nature and quality of what he was doing but could not act on rational choice to think through moral and legal wrongfulness. An acute psychotic state prevented him from doing that. The factors that assisted Dr. Eayrs in understanding his state of mind at the time were the severity of the psychosis when he arrived at Waypoint, the evidence from the jail that he was demonstrating psychosis there, information from the case file synopsis, the fact that the psychosis was getting worse, his self-report leading up to the material time, and the absence of any information that he was using intoxicating substances at the time. All of this led Dr. Eayrs to conclude that Levi Mishibinijima was acutely psychotic with an endogenous (entrenched) mental disorder.

[18] In addition to the testimony of Dr. Eayrs, the Court reviewed and considered the entirety of the psychiatric report dated November 14, 2017, which was introduced by the defence on behalf of Mr. Mishibinijima and marked as Exhibit 2. Further, the defence submitted a copy of the transcript of Mr. Mishibinijima's statement to police which was taken on August 15, 2017 between the hours of 2:15 a.m. and 2:53 a.m. The transcript was marked as Exhibit 3. The Court reviewed and considered the entirety of the transcript.

Result of the Initial Hearing to Determine Criminal Responsibility

[19] On February 13, 2018, this Court found Levi Mishibinijima criminally responsible. The judgment is reported at R. v. Mishibinijima, 2018 ONCJ 96.

[20] The evidence at the first hearing was found to be lacking in several respects. Based on the totality of the evidence at that time, it was difficult for the court to conclude that Mr. Mishibinijima was, at the material time, suffering from a mental disorder. The Court found the evidence of Dr. Eayrs limited in the sense that she was not provided with any medical background or information from other collateral sources, such as family or friends, in order to inform her about the circumstances leading up to the index offence. Further, while Dr. Eayrs did ultimately review the transcript of Mr. Mishibinijima's interview with police, the Court was left questioning why the actual video-taped statement was not provided to Dr. Eayrs or the Court. A video of Mr. Mishibinijima at 2:15 a.m., less than 5 hours after his arrest, was considered by this Court to be an important piece of information for both Dr. Eayrs and the Court to see. However, this evidence was not provided to either the doctor or the Court. Finally, Dr. Eayrs had not been provided with other potentially helpful pieces of information, such as relevant disclosure, Mr. Mishibinijima's criminal record, or probation and previous supervision records.

[21] Further, this Court concluded that, even if it were to find, on a balance of probabilities, that Mr. Mishibinijima suffered from a mental disorder at the relevant time of the index offence, the existence of a mental disorder is not synonymous with lack of criminal responsibility. The presence of the mental disorder and, more specifically, the symptoms of the mental disorder, need to have affected the person at the critical time of the index offence in order for the Court to say that the mental disorder deprived the person of the capacity of knowing the act was wrong. While there was certainly some evidence that Mr. Mishibinijima was hearing voices on the day in question and that those voices were telling him to commit the act, the evidence presented to the Court did not establish on a balance of probabilities that Mr. Mishibinijima was incapable of knowing that his conduct was morally condemned by reasonable members of society. It was the view of this court that the evidence pointed to the opposite conclusion, considering such evidence as the agreed statement of facts, and the transcript of Mr. Mishibinijima's statement to the police on August 15, 2017, both of which pointed to a non-psychotic motive.

Re-opening of the Hearing to Determine Criminal Responsibility

[22] On May 11, 2018, prior to any sentencing hearing occurring, counsel on behalf of Mr. Mishibinijima brought an application to re-open the hearing on the issue of criminal responsibility. The defence argued that the assessment prepared by Dr. Eayrs relied on inadequate information due to a series of unfortunate events. The defence argued that they were in the process of gathering a large volume of material, including information from family, incident reports from the Windsor Youth Centre and records from the Windsor Regional Hospital, to assist with a further and more fulsome assessment. The Crown consented to the application to re-open.

[23] The application to re-open was granted by the Court with the recommendation by the Court that another doctor consider this new material and assess Mr. Mishibinijima.

Re-opened Hearing to Determine Criminal Responsibility

[24] On October 4, 2018, the hearing continued. A number of exhibits were entered and one witness was called by the defence, namely Dr. Maxym Choptiany. Dr. Choptiany was qualified, on consent of the Crown, as an expert in the area of forensic psychiatry and permitted to provide an opinion on the issue of criminal responsibility. The curriculum vitae of Dr. Choptiany was marked as Exhibit 6.

[25] A report was prepared by Dr. Choptiany and referred to extensively during his testimony, which occurred by video-link. The report dated August 13, 2018 was marked as Exhibit 7.

[26] Leading up to the preparation of the report, Dr. Choptiany met with Mr. Mishibinijima at the Waypoint Centre for Mental Health Care over the course of June and July 2018. He specifically interviewed him regarding the index offence on four occasions, however, there were upwards of six to eight meetings in total prior to preparing the report.

[27] Dr. Choptiany indicated that Mr. Mishibinijima continues to remain under his care and that they meet on a weekly basis, however he is no longer assessing criminal responsibility, but rather continues on as his treating psychiatrist. Mr. Mishibinijima presently remains stable from a mental status perspective and, in fact, was stable when Dr. Choptiany commenced seeing him. There have been no changes to his medication and he continues to be on a long-acting injectable anti-psychotic medication called Paliperidone, which he will require for the rest of his life. The primary illness he is being treated for is schizophrenia, which Mr. Mishibinijima will have for the rest of his life. There has been no evidence of psychosis throughout his assessment or since the assessment. There have been no altercations, no problematic behavior, and no aggression.

[28] In the report dated August 13, 2018, Dr. Choptiany provided a list of sources that he relied on in order to prepare his report. He clarified that, in addition to this list, he also had the report of Dr. Eayrs as part of the health care records, as well as the Gladue report that was prepared in July 2018. The records referred to by Dr. Choptiany were contained in the application record presented on behalf of Mr. Mishibinijima and marked as Exhibit 5. Specifically, that application record contained an affidavit from Denise Flood which exhibited statements from various family members, incident reports from the Windsor Youth Centre from December 2016 to April 2017, and hospital records from the Windsor Regional Hospital. This was information not available to Dr. Eayrs and Dr. Choptiany indicated that this information was helpful in arriving at his conclusions.

[29] As part of the "Child and Family History" section of the report, Dr. Choptiany referred to a history of mental illness in the family, specifically that Mr. Mishibinijima's father suffered from depression, had difficulties with alcohol and ultimately committed suicide. As part of the "Education and Conduct Disordered History" section of the report, Dr. Choptiany referred to some self-reported cruelty towards animals in Mr. Mishibinijima's youth. According to Dr. Choptiany, the relevance of this is that it points to a conduct disorder, such as antisocial conduct disorder. The doctor stated, however, that in treatment and in the structured environment, there was no evidence of aggressive behaviour or attitudes and that this was from his youth. Dr. Choptiany also referred to collateral information from the Sudbury Jail, Youth OTIS Alerts which included a history of assault on authoritative figures, bizarre abnormal behaviour (allegedly sexually assaulted his sister after coming home one night under the influence), specialized services (Aboriginal), low functioning (as per probation, no complete assessment), suicide attempt (after an alleged claim of sexual assault against him was found to be not guilty), literacy deficiencies, and non-associations.

[30] The report of Dr. Choptiany discussed Mr. Mishibinijima's psychiatric history and referred to file information obtained from both the Windsor Regional Hospital and the Windsor Youth Centre. The following pieces of information are of note:

Windsor Regional Hospital: January 25-30, 2008 – 14 years old at the time, admitted on a Form 1 for an evaluation after a violent outburst during which he threatened to kill his mother and himself. Endorsed cannabis use since moving to Windsor in the fall of 2007. Toxicology was positive for THC but negative for all other drugs and alcohol. Stated that he used to see spirits but felt that this was due to spiritual reasons consistent with his cultural identity. Denied psychotic symptoms. Reported being easily angered and losing his temper. Diagnosis at discharge included adjustment disorder with mixed emotions and conduct, rule out learning disorder, and cannabis abuse.

Windsor Youth Centre: December 3, 2016 – April 22, 2017

• December 3, 2016 – expressed delusional thought content and was experiencing visual hallucinations. Denied substance use that day
• December 5, 2016 – thought someone was chasing him
• December 16, 2016 – hearing voices that referred to him as God
• March 6, 2017 – reported as "becoming more incoherent"
• March 14, 2017 – aggressive motions towards other youth
• March 20, 2017 – commented to some youths that they were possessed by the devil and were going to "stab themselves in the heart tonight"
• April 22, 2017 – observed talking to himself and not responding in coherent sentences

Windsor Regional Hospital: March 30, 2017 – presented to emergency department stating he needed to see a doctor. Records note methamphetamine use and bizarre behaviour

Windsor Regional Hospital: April 2, 2017 – brought to hospital after found wandering the railway tracks, holding a rock and talking to it as if he was on the phone. He stated "My family was murdered; I am fighting their demons". He was found to have empty bags which were suspected to have contained crystal methamphetamine. He denied having used any. Diagnosis at discharge included "poly-substance abuse vs psychosis"

Windsor Regional Hospital: April 22, 2017 – brought to hospital after police were waved down to apprehend a male with his shirt off attempting to fight random people in the street. He was aggressive and spitting. Assaulted police officers. Hallucinating and delusional. He believed his sister had died. He denied substance use and was placed on a Form 1. He was reported to have used alcohol and drugs, including crystal methamphetamine.

[31] The report of Dr. Choptiany, at pages 9 and 10, discussed the extensive history of substance use as reported to him by Mr. Mishibinijima, and as referred to in the Sudbury Jail health care records and Gladue Report.

[32] Mr. Mishibinijima was interviewed on four occasions for the assessment by Dr. Choptiany. According to Dr. Choptiany, he did not present as exaggerating symptoms. There was sometimes vagueness to his account and some inconsistency over the course of the assessment. However, according to Dr. Choptiany, overall the information had a global consistency as to what was going on at the time of the index offence and initial assessment. The following portions of the report are relevant:

June 19, 2018

….. Mr. Mishibinijima reported that, with the exception of marijuana, he had stopped using drugs upon his return to Wikwemikong in April 2017……He was taking care of himself and was eating and sleeping. He started hearing voices in April or May of 2017. He couldn't remember what the voices were saying. However they made him think that he was a vampire or a werewolf…..He also felt as if someone was with him, "an invincible friend or something"…. They [the voices] had never commanded him apart from benign commands such as to go for a walk. He further reported that if he did not follow the commands that nothing would happen…..

On August 14, 2017, Mr. Mishibinijima was at his grandmother's house. He walked into his grandmother's house and thought "there is a kingdom coming. I was thinking that I was coming in and out of the sky going up into the sky and keep on coming out of my body." He consumed pizza and 5 beers. "The voices were telling me to go stab Mike (the victim)." He had never met or seen Mike before. He had never socialized with Mike. He didn't know where Mike was but he went next door. He saw Mike, walked towards him, and stabbed him. He stated, "Mike was on the riding lawnmower and I just stabbed him in the neck. I grabbed the knife from the drawer in my grandmother's. I felt my dad was controlling me to take me home to Kaboni because he's from the afterlife. I just stabbed him and then ran away into the bush. Then I got caught in the bush. I ran to a buddy's house to use the phone. My mom called the cops. I called my step-father to drive me home. He called my mom and they called the cops".

When asked why he had to follow the commands that day when previously he had been able to ignore them, Mr. Mishibinijima stated, "because I was weak".

When questioned regarding his ability to appreciate the wrongfulness of his action at the time, he initially stated that in the moment he knew that it was wrong to stab Mike in the neck but that he was being "controlled by (the) voices." He did not think that he was above the law. He felt "bad" and "terrible" about it. However, he felt that he was being controlled by (the) voices." He was unable to state whether he would have stabbed Mike if a police officer or authority figure had been present at the time. When questioned what he thought would happen, he replied, "I don't know". When questioned what he was hoping would happen, he replied, "nothing". He subsequently stated, "I didn't know it was wrong. I wasn't thinking straight at the time. I was going through a lot."

July 3, 2018

…….Mr. Mishibinijima stated that shortly after the death of his father, he had experienced increased auditory hallucinations, command in nature, telling him to stab Mike on the day of the index offence. He also stated that he had feared retaliation and feared for his own safety believing that Mike was going to hurt him.

…..He stated that he had been using for two years and that it had damaged his mind and body. He had difficulty recalling the circumstances during the months of July and August. However, in July (June 30, 2017), his father committed suicide by hanging himself. It is at this point that he started to hear voices.

Mr. Mishibinijima believed that the voices were his father as they started a week after his father's death. The voices would say, "help me". He believed that his father was "stuck and couldn't' move on". The voices were intermittent.

On the day of the index offence, the voices changed and told him to stab Mike. When asked why, he stated, "I have no idea."…..He felt that if he ignored the voices, he would experience them in his dreams.

On the day of the index offence, he was at his grandmother's just "chilling". He went outside for a smoke. It was there that he saw Mike and heard the voice commanding him to stab Mike. He ignored the voice at first, but it continued to increase. It told Mr. Mishibinijima to grab the knife. He stated that he did not want to grab the knife, but that the voice kept saying to stab Mike.

Mr. Mishibinijima also stated that he was experiencing a belief that someone was going to kill him and that he believed that Mike was going to kill him. When questioned why, he stated because Mike had killed his father. He stated that Mike was not behaving any differently. The only change was that Mike was looking at him strangely.

Mr. Mishibinijima stabbed Mike once in the neck. He knew what he was doing. He knew that he was hurting Mike. He knew it was against the law, but was not thinking about it in the moment. He was aware that he could go to jail, but was not thinking about it as well. He then ran away into the bush. He was scared that Mike was going to follow after him. He stated that he was not trying to kill Mike.

July 12, 2018

…..In Wikwemikong, he stopped using crystal methamphetamine, but continued to smoke approximately 1 gram of marijuana daily and consumed approximately five beers per day…..

On the day of the index offence, he went to the dump where he had previously worked. He was trying to find a friend, but his friend was not there, so he went to his grandmother's. He did not know why he chose his grandmother's to go to. However, his grandmother was having a celebration for an aunt who was leaving to go to the city. Once there, he assisted with cleaning up her yard as her dogs had made a mess of the garbage in the back. He had a vague feeling that there was danger. He felt that there were vampires in the shed in the back. He returned indoors, consumed some beer and pizza and then went out. He went over to his uncle Theo's house (Mike's father). He was not there. He returned to his grandmother's, got a knife and then stepped out and saw Mike. He stated that the voices commanded him to stab and kill Mike. The voices were his father. He stated that he could not stop himself. He tried to make the voices go away, but they told him to go back. He then approached Mike and stabbed him repeatedly. He stated that Mike looked dangerous and afraid. He stated that had the police been there, he did not know whether he would have engaged in the behaviour, but that he probably would have as the voices had instructed him to do so. Afterwards, the voices instructed him to run away.

During the entire ordeal, he reported feeling scared, and hearing the voice of his father, and operating under the belief that Mike had killed his father. He stated that he ran back to his grandmother's afterwards.

During the stabbing, he stated that he yelled "Mike, I know you killed my dad."……..

July 26, 2018

……He was operating under the belief that the victim had killed his father. However, he is now aware that his father killed himself.

He reported that there was no benefit with regards to the behaviour, but that it was in response to revenging his father's murder (his belief that his father had been murdered). He reported that, at the time, he was hoping for the victim to die in response to his belief that he had murdered his father. He was aware that he was stabbing the victim. He also stated that he believed that had he not engaged in the act, he would have been killed by the victim due to his relation to his father. He stated, "I think he would have killed me. Because I am my father's son. Because of my dad." He was aware of the laws governing his behaviours, but was not thinking in that regard at the time.

When asked what would have happened had he not listened to the voices, he stated that they would have probably killed him instead.

[33] It must be noted that Mr. Mishibinijima consented to proceed with the assessment by Dr. Choptiany, with the knowledge that the assessment was voluntary, that he could refuse to answer questions, and that a report would be made available to the Court. In fact, Dr. Choptiany was retained by Mr. Mishibinijima, not by the Crown, for the purpose of preparing a report. It is Mr. Mishibinijima who introduced this report to support his argument that he be found not criminally responsible. The proper use to be made of Mr. Mishibinijima's statements will be discussed below.

[34] Dr. Choptiany also made reference to Mr. Mishibinijima's self-report to Dr. Eayrs on November 10, 2017. Specifically, Mr. Mishibinijima had denied alcohol use during the four months that he had lived with his mother prior to the index offence. He also denied all substance use with the exception of marijuana and then subsequently stated that he had not used any while at his mother's residence. Further:

Mr. Mishibinijima said that after he heard about his father's death, voices told him to stab Mike and that voices told him that Mike had hung his father. He said that at the time, he was convinced that Mike had hung his father. He recalled that Mike and his father had actually been involved in an altercation, that Mike had attacked his father, and that his father had retaliated by assaulting back, and that his father was facing a charge as a result…..

Mr. Mishibinijima then offered a statement about what he thought had actually occurred when Mike was assaulted. He said "I punched him in the arm and the tool in his arm hit his neck".

[35] Dr. Choptiany also made reference to Mr. Mishibinijima's self-report to Kristine Saft, psychometrist, on November 2, 2017:

Mr. Mishibinijima reported that he had stabbed his cousin Mike while Mike was cutting the grass next door because he believed Mike had murdered his father…..

Mr. Mishibinijima became aware that Mike had murdered his father when his father appeared to him in his room one night and had informed him that Mike had murdered him. He reported that his cousin had murdered his father by hanging him while he was using alcohol when he was not supposed to…..

[36] Dr. Choptiany also had the benefit of reviewing the video interview of Mr. Mishibinijima on August 15, 2018, just hours after the index offence. Dr. Choptiany described Mr. Mishibinijima at that time, which was 2:15 – 2:53 a.m, just hours after the index offence:

….He presents as downcast and tired and yawns at various times. He speaks slowly in a low voice and quietly. He makes intermittent eye contact with the interviewer but often looks down while answering questions. He sniffles at times. His affect is flat and unreactive throughout the interview. He does not appear to be internally preoccupied or to be responding to internal stimuli. He is able to concentrate through the assessment and appears cooperative with the interviewer, Sergeant S. Cooper, throughout the entirety of the interview even with Constable J. Peltier present for part of the interview. He is not guarded and he does not appear to be paranoid. There is no overt evidence of psychosis apart from delusional themes expressed and self-reported auditory hallucinations at the time of the index offence. Although his thought process appears to be organized for the most part, at times, his answers are vague and unclear and tangential, suggestive of thought disorder related to psychosis.

According to Dr. Choptiany, the fact that Mr. Mishibinijima was difficult to follow would suggest a level of disorganization in keeping with active psychosis. He explained that his psychosis would wax and wane and that, at the time of the interview, it had attenuated. He also explained that, in the interview, he was not actively experiencing or responding to auditory hallucinations. However, he was expressing delusional beliefs.

[37] Dr. Choptiany had the benefit of various handwritten statements from family members who were able to describe the behaviour they witnessed from Mr. Mishibinijima prior to the index offence. The summary of these statements are found in the report, Exhibit 7, at pages 22 and 23.

[38] The circumstances after the arrest were also referred to by Dr. Choptiany. According to the health records from the Sudbury Jail, Mr. Mishibinijima displayed bizarre and inappropriate behaviour. He was housed in the Special Handling Unit. He was diagnosed with cannabis disorder, and opiate use disorder, however, psychosis secondary to substance use was also considered. During his time in the Sudbury Jail, Mr. Mishibinijima was seen by a couple of psychiatrists. Dr. Choptiany made reference to these visits in his report:

Mr. Mishibinijima was seen by Dr. Veluri, the consultant psychiatrist on August 24, 2017 (10 days after the index offence). He had difficulty focusing throughout the interview. He displayed inappropriate affect. He was laughing for no particular reason and could not explain why. His affect was incongruent to the conversation….His thinking was described as conceptually disjointed and he would derail in keeping with thought disorder…..Dr. Veluri further noted that this had not been apparent in the assessment by the mental health nurse days earlier and one day earlier when assessed by another physician. Dr. Veluri was unable to provide a specific diagnosis but considered drug induced psychosis, schizophreniform disorder, learning disability, or a combination of the disorders.

Mr. Mishibinijima was seen by Dr. Joseph, another consultant psychiatrist, for a second opinion on August 31, 2017. He denied hearing voices or having any strange thoughts in his head. There had been reports from other inmates who told staff that he had been laughing to himself inappropriately, and masturbating, making some strange verbal noise while doing so and talking to Satan while performing this act…..He denied auditory hallucinations. He did not exhibit any psychotic symptoms. Dr. Joseph diagnosed him with cannabis use disorder and opiate use disorder. He also noted that psychosis secondary to substance use was to be considered.

Dr. Choptiany was asked to explain why Dr. Joseph saw no psychosis, even though according to Dr. Choptiany, Mr. Mishibinijima would have been at his most extreme condition during that time. Dr. Choptiany explained that at various times, the symptoms would have attenuated, but he would have remained floridly psychotic, likely experiencing the symptoms. Also, Dr. Choptiany did not know how long Dr. Joseph assessed him. He agreed that at the time Dr. Joseph saw Mr. Mishibinijima, he denied symptoms and there was no overt psychosis, however over that period of time, the symptoms were present as witnessed by others, even though not present at that moment.

[39] There were psychological tests conducted on Mr. Mishibinijima on November 1 and 2, 2017, during the initial assessment performed by Dr. Eayrs, prior to Dr. Choptiany's involvement. However, Dr. Choptiany considered the results of such testing and referred to it in his report. The Shipley-2 (SILS-2) assessed Mr. Mishibinijima's cognitive abilities and the results suggested disorganization and severe difficulties with abstraction and were suggestive of highly probable cognitive impairment. Regarding the Personality Assessment Inventory (PAI), Mr. Mishibinijima did not complete this test and therefore the test was not valid and clinical interpretation to inform diagnosis was not possible. Dr. Choptiany stated that the fact that he was unable to complete this test, combined with the other test results, suggested that there was a severity of symptoms which resulted in his inability to participate in the test. Psychology did not see the added value in repeating the test when he was conducting his assessment. Finally, the Miller Forensic Assessment of Symptoms Test (M-FAST), was conducted to assist in determining whether Mr. Mishibinijima was malingering mental illness. The results did not suggest malingering.

[40] In the opinion of Dr. Choptiany, from the time he was in Windsor, until the index offence, Mr. Mishibinijima evidenced symptoms of psychosis, starting sometime late in Dec 2015 and into 2016. The symptoms included delusional beliefs, being controlled, believing he was god and the devil, paranoid and persecutory beliefs delusional in nature, believing people were out to harm him, and other bizarre behaviour. The behaviour escalated in late 2016 into 2017, which was corroborated by reports. At the time of various hospital presentations in Windsor, the behaviour was attributed to substances. However, the symptoms continued at the time of the index offence and into incarceration and hospitalization at Waypoint. He continued to be disorganized, aggressive, vague, experiencing auditory hallucinations, displaying sexually inappropriate behavior, and required seclusion to manage his behaviours and aggression. The behaviour continued into early treatment with anti-psychotic medication which started in October 2017 after being found incapable to consent to treatment. Stabilization occurred over the next number of months and, by March 2018, his mental status improved significantly.

[41] Dr. Choptiany agreed that the Windsor hospital attributed psychotic symptoms to substances – methamphetamines in particular. In his opinion, initially, psychotic symptoms were precipitated by the use of substances, but after he was abstinent when incarcerated, the symptoms continued for close to two months, in fact, even longer, and on that basis, they are attributed to a major mental illness, specifically schizophrenia, rather than substances. According to Dr. Choptiany, if the cause of the symptoms was the substances, he would have anticipated it would have stopped within a month or slightly longer after abstaining. However, Mr. Mishibinijima remained psychotic for a long time after that and there was no evidence that he was on any drugs after being incarcerated or hospitalized.

[42] The psychiatric diagnoses as determined by Dr. Choptiany were:

• Schizophrenia – being the primary psychotic illness, which was likely trigged by his substance use;
• Substance use disorder (alcohol, opioid, and stimulant); and
• Antisocial personality traits

[43] Regarding antisocial personality disorder, Mr. Mishibinijima had demonstrated a failure to conform to social norms with respect to lawful behaviours. However, since being treated with antipsychotic medication, and while abstaining from substance use, he had not demonstrated these same behaviours, apart from having his privileges suspended on one occasion in July 2018 due to an altercation with another patient. Therefore, this would warrant further assessment. Dr. Choptiany stated that this is something to remain on the differential diagnosis to be considered.

[44] In the opinion of Dr. Choptiany, Mr. Mishibinijima suffers from a major mental illness, namely schizophrenia, and that "it is likely that Mr. Mishibinijima was suffering from symptoms of psychosis at the time of the index offence". Dr. Choptiany explained both in his report and during his testimony that, despite this mental illness and the psychotic symptoms that were being experienced at the time of the index offence, in his opinion, Mr. Mishibinijima appreciated the nature and quality of his actions at the material time. He stated:

He has reported that he was aware that he took a knife from his grandmother's house, approached the victim, Mike, and stabbed him with the knife intending to kill him. He would likely have understood that stabbing Mike with a knife was likely to either seriously injure if not kill him.

[45] However, in the opinion of Dr. Choptiany, Mr. Mishibinijima, as a result of his mental disorder, was rendered incapable of knowing the wrongfulness of his actions and of engaging in rational perception and rational choice. In his report, Dr. Choptiany stated:

It is my opinion that at the material time, Mr. Mishibinijima was operating under the delusional belief that Mike had killed his father. Additionally, he was experiencing command auditory hallucinations to kill Mike. He believed that the command auditory hallucinations were those of his father. He was also experiencing delusions of control directing him to kill Mike. It is also possible that he was acting under the belief that Mike might kill him, something he reported during the current assessment. Furthermore, he was confused, thought disordered and suffered from impaired judgment at the time of the index offence as a result of psychosis.

Although he was aware of the wrongfulness of his actions in the abstract, he was likely incapable of accessing that knowledge at the material time. During the current assessment he initially stated that in the moment he knew that it was wrong to stab Mike in the neck but that he was being "controlled by (the) voices" and that he "didn't know it was wrong" because he "wasn't thinking straight at the time".

Given the constellation of psychotic symptoms, the severity of his psychotic illness at the material time, and the level of confusion and impaired judgment, it is my opinion that on a balance of probabilities, Mr. Mishibinijima was deprived of the capacity to access his knowledge (of societal views) of the moral and legal wrongfulness of his act at the material time and the ability to apply that knowledge to the circumstances. Given the intensity of his delusional beliefs, combined with the level of thought disorder and confusion that Mr. Mishibinijima was experiencing at the material time, he was also deprived of his ability to engage in rational perception and rational choice.

[46] Dr. Choptiany explained that he would have had knowledge that the actions were legally wrong. He stated that he understood it was wrong to do what he did. He stated that he knew what he was doing and that he intended to kill the victim. However, his actions were driven by psychotic symptoms. He was under a delusion that Mr. Mandamin had killed his father, he was under a delusion of control and driven to act out, and he was also hearing the voice of his father that was commanding him and controlling him to do it. Mr. Mishibinijima was unable to stop himself and impulsively acted out. Given the level of disorganization preceding and immediately after, it was suggestive of significant psychotic symptoms which would have impaired him cognitively and deprived him of the ability to access his knowledge of wrongfulness and societal views of wrongfulness and to apply that knowledge in the moment at hand, depriving him of rational perception, and rather acting under delusional belief. Mr. Mishibinijima was unable to apply his knowledge of wrongfulness at the time. He was deprived of rational perception and rational choice at the time of the offence. According to Dr. Choptiany, he knew it was legally wrong and morally wrong but he was incapable of acting on that knowledge given his psychosis. He was incapable to access rational perception and rational choice.

[47] Dr. Choptiany did state in his report that he could not exclude the possibility that Mr. Mishibinijima may have been intoxicated at the time. However, it remained his opinion that the behaviour was most likely the product of his psychotic disorder as opposed to being brought on by substance use.

[48] Further, Dr. Choptiany did acknowledge that there was a non-psychotic motive present in this case. In his report, he stated:

In evaluating this matter, I note that there is a non-psychotic motive. Mr. Mishibinijima has stated that he was revenging his father's death. However, from all of the information available to me, there is no evidence that Mr. Mishibinijima had any significant prior contact with or any knowledge of the victim, Mike, and Mike's relationship with his father that would have caused him to engage in the offending behaviour. Even if he had been aware of a conflictual relationship or negative relationship between the two, at the time of the index offence, he was operating under the delusional belief that his father had been killed by Mike (something he later came to accept as untrue) and the belief that Mike might kill him on account of being his father's son. These beliefs were further compounded by the aforementioned psychotic symptoms he was experiencing including command auditory hallucinations and delusions of control, confusion, impaired judgment and behavioural disinhibition. Furthermore, the offence does not appear to have been planned.

[49] Dr. Choptiany, however, did agreed that Mr. Mishibinijima ran to the bush after stabbing the victim, suggesting perhaps that there was something of a plan after the stabbing to remove himself from the scene. The doctor agreed that he picked up a knife at his grandmother's and went to Mike's yard where he was riding a lawnmower. Further, there was the fact that Mr. Mishibinijima believed the victim had killed his father. Finally, Mr. Mishibinijima had some understanding that his father and the victim had run-ins in the past. Dr. Choptiany agreed that he never explored these non-psychotic motives with Mr. Mishibinijima.

[50] In cross-examination, Dr. Choptiany agreed that most of the information received for the assessment was from self-report. For example, with respect to substance abuse, there was no way to corroborate how much street drugs he was doing or when he stopped. He agreed that there was no accurate reporting of how much methamphetamine or cocaine Mr. Mishibinijima was taking. There was no way to verify whether he was abusing drugs right up to the index offence.

[51] Dr. Choptiany agreed that all of the symptomology started in Windsor when he started using street drugs such as cocaine and crystal methamphetamine. It was suggested to Dr. Choptiany that it was difficult to say he was psychotic in Windsor as it may have just been symptoms from abusing street drugs. The doctor explained that the drugs may have unmasked the disorder, but significantly, the symptoms remained after abstinence from drugs for a significant amount of time. He stated that it was not unusual for people to abuse substances and to unleash the illness with the use of drugs. Dr. Choptiany agreed that he could not determine when the major mental illness started but that it coincided with the use of substances. He further agreed that the extreme abuse of those drugs would "amp up" the symptomology, however, he indicated that he would not anticipate the ongoing symptoms after abstinence, which Mr. Mishibinijima continued to experience. He stated that some people have some symptoms during abstinence but not with that severity and that level of disorganization.

[52] Dr. Choptiany was asked by the Court to explain the inconsistency from Mr. Mishibinijima as to whether he did or did not know it was wrong to stab Mr. Mandamin. Dr. Choptiany agreed that Mr. Mishibinijima initially stated that he knew it was wrong and then later in the same interview stated that he did not know it was wrong and that he was not thinking straight at the time. Dr. Choptiany agreed that these things are inconsistent, and that in fact Mr. Mishibinijima was inconsistent throughout the interviews on various topics, including his knowledge of Mr. Mandamin, his drug use, and on this topic as well. Dr. Choptiany testified, "I think he knew in an abstract sense it was wrong, he knew it was wrong to stab someone, but at the time he was experiencing psychotic symptoms that deprived him of the ability to access that information and apply it to the circumstances at hand." Dr. Choptiany explained that throughout multiple interviews, he endorsed multiple symptoms of confusion, auditory hallucinations, hearing his father's voice, delusions regarding being controlled, and delusions regarding the victim. Given the evidence of how he presented after the interview and in jail, in the opinion of Dr. Choptiany, he was sufficiently impaired by psychosis that although he knew it was wrong, he was unable to access that knowledge and apply it to the moment at hand. Dr. Choptiany agreed that he knew it was wrong to stab Mike in the neck, but proceeded to do it anyway because he was being controlled by something else.

Analysis

[53] Section 16 of the Criminal Code governs the defence of mental disorder and states as follows:

16(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

[54] Mental disorder means a "disease of the mind", as stated in section 2 of the Criminal Code. A "disease of the mind" includes any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states. See R. v. Cooper, [1980] 1 S.C.R. 1149.

[55] No person who committed an offence 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 may be convicted. The test is a legal test, not a medical test.

[56] It is conceded that Mr. Mishibinijima did appreciate the nature and quality of the act, and this is therefore not the focus of the analysis in this case. It is argued that Mr. Mishibinijima committed an act while suffering from a mental disorder that rendered him incapable of knowing that the act was wrong.

[57] Knowledge in this circumstance does not require appreciation. As explained in R. v. Barnier, [1980] 1 S.C.R. 1124, the verb "know" has a positive connotation requiring only a base awareness.

[58] Wrong means "morally wrong" and not simply "legally wrong". The court must determine whether the accused, because of a disease of the mind, was rendered incapable of knowing that the act committed was something that he ought not to have done. The inquiry cannot terminate with the discovery that the accused knew that the act was contrary to law. A person may know that the act was legally wrong and yet, by reason of a disease of the mind, be incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of reasonable men and women. See: R. v. Chaulk, [1990] 3 S.C.R. 1303 at para 101, 108 and 111

[59] In R. v. Oommen, [1994] 2 S.C.R. 507, McLachlin J. for the Court provided further guidance on this point and stated in part as follows:

[19] Section 16(1) affirms that a person who lacks the capacity to know that the act he is committing is wrong is exempt from criminal responsibility.

[21] A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.

[22] The wording of s. 16(1) suggests this result. It proclaims that the focus is not a general capacity to understand that the act, say of killing, is wrong, but rather the act "committed" or omission "made", i.e. the particular act or omission at issue in the criminal proceedings.

[26] The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental disfunctions; as the following passages indicate these include at a minimum the states to which the psychiatrists testified to in this case – delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.

[60] Further in Oommen, McLachlin J. distinguished between the person who is unable to know that the act is wrong from a person who is able to know the act is wrong but chooses to do it anyway. At para 31-32:

[31] It was also suggested that to permit an exemption from criminal responsibility in this case would be to open the door to exemption in cases of failure to exercise the will. The law has long distinguished between disorders affecting the ability to recognize what is wrong, and the will to act or refrain from acting (although at the time of M'Naghten's Case the distinction may not have been as clear as we are wont to think: see Tollefson and Starkman, supra, at p. 39). Moreover, the wording of s. 16(1) suggests a cognitive test. This said, it must be recognized that impulse may be part of the mental mix which prevents a person from rationally evaluating the wrongness of his act. As Tollefson and Starkman state at pp. 40-41:

Section 16 of the Canadian Criminal Code employs a "cognitive test" and does not provide exemption from criminal responsibility for people who claim that mental disorder rendered them incapable of controlling their volition. It has been recognized, however, that evidence of irresistible impulse may be adduced as a symptom of disease of the mind which will be taken into account by the jury in determining whether the accused was suffering from mental disorder to the extent of being rendered incapable of exercising the "cognitive" functions of appreciating the nature and quality of the act or omission or of knowing that it was wrong. See R. v. Wolfson (1965), 51 D.L.R. (2d) 428 (Alta. C.A.); R. v. Borg, [1969] S.C.R. 551, per Hall J. at 570-71; R. v. Abbey, [1982] 2 S.C.R. 24, at 38-39.

[32] Finally, it should be noted that we are not here concerned with the psychopath or the person who follows a personal and deviant code of right and wrong. The accused in the case at bar accepted society's views on right and wrong. The suggestion is that, accepting those views, he was unable because of his delusion to perceive that his act of killing was wrong in the particular circumstances of the case. On the contrary, as the psychiatrists testified, he viewed it as right. This is different from the psychopath or person following a deviant moral code. Such a person is capable of knowing that his or her acts are wrong in the eyes of society, and despite such knowledge, chooses to commit them. To quote Herbert Fingarette, The Meaning of Criminal Insanity (1972), at pp. 200-201:

It should be evident that we are not here reverting to the thesis that "knew it was wrong" means "judged it wrong in the light of his own conscience"….such a definition could never be acceptable in a viable criminal law. As the courts have rightly insisted, it is a public standard of wrong that must be used, whether public law or community morality.

What we are saying here is that "knowing the nature and quality of the act or that it is wrong" in the context of insanity (and thus, rationality) means "having the capacity to rationally assess – define and evaluate – his own particular act in the light of the relevant public standards of wrong"…

The preceding comments should not be taken to mean that a person is not responsible if he holds irrational beliefs, for that is not the case….The point is that if the person has a mental makeup which is such that he lacks even the capacity for rationality, then responsibility is vitiated. If he has the capacity but simply fails to use it, responsibility is not precluded.

[61] It is not sufficient to decide that the conduct was as a result of the person's delusions. This would not end the inquiry. Even if the conduct was motivated by a delusion, the accused is criminally responsible if she or he was capable of knowing, in spite of the delusion, that the conduct in the particular circumstances would have been morally condemned by reasonable members of society: See R. v. Ratti, [1991] 1 S.C.R. 68 at para 21. Certainly, these comments would apply equally if, rather than delusions, the person was suffering from auditory hallucinations.

[62] In R. v. Dobson, 2015 ONSC 2865, Justice Watt stated three helpful reminders about the case law on this prong of the s. 16 test:

124 First, the inability of a person accused of crime to exercise the same degree of judgment as would be expected of a person unencumbered by mental disorder is a long way removed from the incapacity to know that a person's actions are wrong according to the normal standards of members of the community: R. v. Guidolin, 2011 ONCA 264 (Ont. C.A.), at para 22.

125 Second, a subjective belief by an accused that his or her conduct was justifiable will not exempt him or her from criminal responsibility even if his or her personal beliefs were driven by a mental disorder, as long as she or he retained the capacity to know that the conduct would be regarded as wrong in the circumstances by reasonable members of society: R. v. Ross, 2009 ONCA 149 (Ont. C.A.), at para 27; Chaulk, at para 98; and R. v. Woodward, 2009 ONCA 911 (Ont. C.A.), at para 6.

126 Third, to determine whether an accused's mental disorder rendered him incapable of knowing that his conduct was wrong in the circumstances, triers of fact are not bound by the opinions of experts. Rather, the determination is to be made on the basis of the evidence as a whole. Expert testimony falls to be evaluated like the testimony of any other witness: Ratti, at p. 81. To be more specific, a trier of fact is entitled to reject expert evidence that an accused was capable of knowing that his or her conduct was wrong and to conclude from an accused's previous and contemporaneous conduct and utterances that the accused was or was not criminally responsible: Kirkby, at p. 49; Attorney-General for South Australia v. Brown, [1960] A.C. 432 (Australia P.C.), at p. 452.

[63] Justice Watt's decision in Dobson was recently upheld by the Court of Appeal. In R v. Dobson, 2018 ONCA 589, Justice Doherty dismissed the appeal and stated in part as follows:

[22] It may be that different extracts from Oommen are open to different interpretations, however, the Crown's interpretation of Oommen is consistent with the interpretation adopted in an unbroken line of authority in this court: e.g. see R. v. Ross, 2009 ONCA 149, at paras. 24-27; R. v. Woodward, 2009 ONCA 911, at para. 5; R. v. Guidolin, 2011 ONCA 264, at paras. 17-18; R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 247, at paras. 56-58; R. v. Campione, 2015 ONCA 67, 321 C.C.C. (3d) 63, at para. 30.

[23] A recent description of the "wrongfulness" inquiry under s. 16(1) from this court is found in Campione, at paras. 39-41:

The ultimate issue for the jurors to determine was whether – in spite of her delusions and any honest belief in the justifiability of her actions – the appellant had the capacity to know that those actions were contrary to society's moral standards. The centrepiece of the inquiry is her capacity to know and to make that choice; it is not the level of honesty or unreasonableness with which she may have held her beliefs. Concentrating on the latter unduly complicates the inquiry for the very reason the appellant raises in support of her argument; it leads to the application of reasonableness considerations to the appellant's delusions and subjective belief.

In short, a subjective, but honest belief in the justifiability of the acts – however unreasonable that belief may be – is not sufficient, alone, to ground an NCR defence, because an individual accused's personal sense of justifiability is not sufficient. The inquiry goes further. The accused person's mental disorder must also render him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with those standards. [emphasis added]

[24] In my view, Oommen, as interpreted in the judgements of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.

[64] The onus and burden of proof in this case lies on Mr. Mishibinijima on a balance of probabilities, given that he has raised the issue with the Court.

[65] The question to be answered is whether Mr. Mishibinijima has demonstrated on a balance of probabilities that he should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. In other words, Mr. Mishibinijima must establish on a balance of probabilities that he did not have the capacity to know his actions would be viewed as wrong in the eyes of reasonable members of the community.

[66] Based on the totality of the evidence that is now available, this court finds that Mr. Mishibinijima suffered from a mental disorder, namely schizophrenia, at the time he stabbed Mr. Mandamin. There is now ample evidence before this court to support the diagnosis of schizophrenia and that the symptoms were likely active at the time of the stabbing. In an earlier ruling of this Court, it was determined that the evidence of Dr. Eayrs was limited in the sense that she was not provided with any medical background or information from other collateral sources such as family or friends. Further, Dr. Eayrs came to her conclusions without the benefit of having reviewed Mr. Mishibinijima's video-taped statement to the police. Finally, Dr. Eayrs did not have access to other potentially helpful pieces of information, such as disclosure, Mr. Mishibinijima's criminal record, or his probation and previous supervision records.

[67] This has now changed.

[68] Dr. Maxym Choptiany had access to and referred to an extensive list of sources to come to his opinions in this matter. It is the view of this court, that Dr. Choptiany was thorough in coming to his conclusions regarding the diagnoses in this case.

[69] This, however, does not end the court's inquiry. Even where the Court finds, on a balance of probabilities, that Mr. Mishibinijima suffered from a mental disorder at the relevant time of the index offence, as it does in this case, the existence of a mental disorder is not synonymous with lack of criminal responsibility. The existence of a mental disorder, as defined in section 2 of the Criminal Code, is a necessary condition for a successful defence under section 16, but it is only one of the necessary conditions. The presence of the mental disorder and, more specifically, the symptoms of the mental disorder, need to have affected the person at the critical time of the index offence in order for the Court to say that the mental disorder deprived the person of the capacity of knowing the act was wrong.

[70] As stated, there is certainly some evidence that Mr. Mishibinijima was suffering from a mental disorder, specifically schizophrenia, on the day in question. Further, there is evidence that he was experiencing psychotic symptoms of his mental disorder on the day in question. For example, there is evidence that he was experiencing auditory hallucinations, specifically, hearing voices and that those voices were telling him to commit the act. There is also evidence that he was operating under the delusional belief that Mr. Mandamin had killed his father. However, it is not sufficient to decide that the conduct was as a result of the person's auditory hallucinations or delusional beliefs. Even if the conduct was motivated by a command auditory hallucination or delusional belief, Mr. Mishibinijima is still criminally responsible if he was capable of knowing, in spite of the command auditory hallucination or delusional belief, that the conduct in the particular circumstances would have been morally condemned by reasonable members of society.

[71] It is the view of this Court that the evidence presented does not establish on a balance of probabilities that Mr. Mishibinijima was incapable of knowing that his conduct was morally condemned by reasonable members of society. In my view, the evidence, such as that outlined below, points to the opposite conclusion:

(1) Agreed Statement of Facts

(a) There was evidence that Mr. Mishibinijima fled the scene of the crime.

(b) Mr. Mishibinijima blurted out that he was a murderer and that he killed his brother (the victim Mandamin) as the victim had killed his father. This would suggest a revenge action.

(c) Tim Pangowish heard Mr. Mishibinijima say "I know you killed my father". This would also suggest a revenge action.

(d) Mr. Mishibinijima told Sgt Cooper that his father was telling him that the victim had hung him and that he needed to be free of him. Then he went on to say that the victim said something "like I killed your father or your father's dead in your mind control". He could hear his dad speaking. Then Levi Mishibinijima said "all I could hear is go ahead Gwiss stab him get it over with and leave and something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him." This also suggests a revenge action. The statement "something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him" might suggest that the conduct was motivated by a command auditory hallucination but it does not suggest that Mr. Mishibinijima was deprived of his ability to make a rational choice or to know right from wrong.

(2) Police Interview Transcript – August 15, 2017

(a) Yeah (u/i) get my dad involved in drugs you know

(b) (u/i) he wouldn't look at me he'd look away like….then he'd something like I killed your father or your father's dead (u/i) in your mind control…..and then he's (u/i) like he wasn't there man

(c) [Where did you stab him?] In the neck somewhere or in the head and then I ran (u/i) and then just like and I ran back I guess and I told I told the (u/i) that he hung him….my father was telling me that.

(d) but my father was telling before that him and Mike had a fight before (u/i)….jealous of him Mike (u/i) it's like (u/i)

(e) yeah my dad's like traditional medicine….he followed the traditional way medicine

(f) [….where did the knife come from]…..at my grandma's….it was a wooden knife….[where is the knife now]…..I don't know I threw it away somewhere it must've fell…..I don't know it's gone it's gone.

(g) [Okay so what makes you decide to go over there…] nothing […..nothing you just decide to go check it out or like how did you end up over there…..] I ended up there before (u/i)….but (u/i) being hurt on the floor (u/i) and my spirit on my dream that was my spirit (u/i)….but that was that was like four three or four years ago.

(h) [You saw Mike and some dude and then you decide to go over and talk to them is that what happened or] ….yeah then I seen my uncle Theodore.

(i) [Can you tell me what those voices were telling you]…..(u/i) they're but they're like mind communicating to me (u/i) [….okay and who was doing that to you…..] I don't know

(j) [and you described to me again what ah Mike's demeanour was toward you] he was mean…. [he was mean to you….] yeah

(k) (u/i) he knew that that he did something wrong but didn't want to tell me because I thought maybe he would know that I would know about it that my father was (u/i)….my dad is (u/i) my dad is (u/i) I love my father

(l) I should've never went to him there they were drinking….(u/i) alcohol (u/i) drink (u/i) over there…(u/i) I went there he probably cause my body is like real weak (u/i) it's like alcohol and drugs….that (u/i) that like (u/i)….like my body gets taken over by ah (u/i) like that (u/i)

(3) Self-Report to Psychometrist – November 2, 2017

(a) He reported stabbing his cousin Mike while Mike was cutting the grass next door because he believed Mike murdered his father.

(b) He stated that, after stabbing his cousin, he ran into the bush and went to his friend Ricky's to obtain a beer.

(c) At first, Mr. Mishibinijima stated that he was informed that Mike murdered his father as his father appeared to him in his room one night and informed him that Mike murdered him. He reported that his cousin had done this by hanging his father while he was using alcohol when he was not supposed to. He then reported that he just had a sense that his cousin had killed his father.

(d) After the encounter with his father appearing in his room, Mr. Mishibinijima reported that he looked at his cousin, grabbed a knife, and "murdered him."

(e) Mr. Mishibinijima….stated that command auditory hallucinations had told him to stab his cousin.

(f) Mr. Mishibinijima reported that if he had not obeyed the voices he would not be residing at Waypoint currently.

(g) Mr. Mishibinijima…..reported that he stabbed his cousin as his father was an alcoholic and he was unsure "what was going on" at the material time. He subsequently reported that he "figured" his cousin had hung his father and he stabbed his cousin as a result.

(4) Self-Report to Dr. Eayrs – November 10, 2017

(a) Mr. Mishibinijima said that after he heard about his father's death, voices told him to stab Mike, and that voices told him that Mike had hung his father….he was convinced that Mike had hung his father.

(b) He recalled that Mike and his father had actually been involved in an altercation, that Mike had attacked his father, and that his father had retaliated by assaulting back, and that his father was facing a charge as a result. Mr. Mishibinijima said that all of this had happened when he was living in Windsor with his sister. He said that he had first heard about it from his sister, and then directly from his father.

(5) Self-Report to Dr. Choptiany

June 19, 2018

(i) I just stabbed him and then ran away into the bush.

(ii) When asked why he had to follow the commands that day when previously he had been able to ignore them, Mr. Mishibinijima stated, "because I was weak".

(iii) When questioned regarding his ability to appreciate the wrongfulness of his action at the time, he initially stated that in the moment he knew that it was wrong to stab Mike in the neck but that he was being "controlled by (the) voices."

(iv) He did not think that he was above the law.

(v) He felt "bad" and "terrible" about it.

(vi) He was unable to state whether he would have stabbed Mike if a police officer or authority figure had been present at the time.

(vii) When questioned what he was hoping would happen, he replied, "nothing". He subsequently stated, "I didn't know it was wrong. I wasn't thinking straight at the time. I was going through a lot."

July 3, 2018

(i) He stated that he feared retaliation and feared for his own safety believing that Mike was going to hurt him.

(ii) On the day of the index offence, he was at his grandmother's just "chilling". He went outside for a smoke. It was there that he saw Mike and heard the voice commanding him to stab Mike. He ignored the voice at first, but it continued to increase. It told Mr. Mishibinijima to grab the knife. He stated that he did not want to grab the knife, but that the voice kept saying to stab Mike.

(iii) Mr. Mishibinijima also stated that he was experiencing a belief that someone was going to kill him and that he believed that Mike was going to kill him. When questioned why, he stated because Mike had killed his father.

(iv) He stated that Mike was not behaving differently. The only change was that Mike was looking at him strangely.

(v) Mr. Mishibinijima stabbed Mike once in the neck. He knew what he was doing. He knew that he was hurting Mike. He knew it was against the law, but was not thinking about it in the moment.

(vi) He was aware that he could go to jail, but was not thinking about it as well.

(vii) He then ran away into the bush. He was scared that Mike was going to follow after him.

(viii) He stated that he was not trying to kill Mike.

July 12, 2018

(i) During the entire ordeal, he reported feeling scared, and hearing the voice of his father, and operating under the belief that Mike had killed his father. He stated that he ran back to his grandmother's afterwards.

(ii) During the stabbing, he stated that he yelled "Mike, I know you killed my dad."

July 26, 2018

(i) He was operating under the belief that the victim had killed his father.

(ii) He reported that there was no benefit with regards to the behaviour, but that it was in response to revenging his father's murder (his belief that his father had been murdered).

(iii) He reported that, at the time, he was hoping for the victim to die in response to his belief that he had murdered his father.

(iv) He was aware that he was stabbing the victim.

(v) He also stated that he believed that had he not engaged in the act, he would have been killed by the victim due to his relation to his father. He stated, "I think he would have killed me. Because I am my father's son. Because of my dad."

(vi) He was aware of the laws governing his behaviours, but was not thinking in that regard at that time.

[72] Mr. Mishibinijima's statements to the mental health professionals are not proof of the truth of the facts stated, such as proof of actus reus or mens rea, however, statements of a preposterous nature are relevant and admissible for the purpose of addressing the issue of mental disorder and criminal responsibility. In R. v. Dobson, 2015 ONSC 2865, Justice Watt stated:

[128] A psychiatrist expressing an opinion about the mental condition of an accused can relate what he has been told by the accused when that information forms the basis of the psychiatrist's opinion. What is being introduced, however, is the expert's opinion, not the truth of the statements on which the opinion is based. The statements are not proof of the truth of the facts stated: Kirkby, at p. 53; Abbey, at pp. 44-45.

[129] Statements of a preposterous nature may be relevant, however, to the issue of mental disorder and criminal responsibility and may be original evidence on the issue, not hearsay. For example, statements by an accused that he hears voices issuing commands to him are original evidence tending to show that the accused suffers from delusions or hallucinations: Kirkby, at p. 54. These statements may also be feigned in order to simulate mental disorder. It is for the trier of fact to decide, on all the evidence, whether statements of that nature indicate actual mental states or are contrived to simulate mental disorder or its nature and extent: Kirkby, at p. 54. Where an accused tells an expert that he had previously suffered from a delusion, such a statement is a hearsay assertion of that fact and is not admissible to prove the fact asserted: Kirkby, at p. 56.

See also: R. v. Kirby (1985), 21 C.C.C. (3d) 31 (Ont. C.A.) at p. 53; R. v. Genereux (2000), 154 C.C.C. (3d) 362 (Ont. C.A.)

[73] In R. v. J.A.T., 2012 ONCA 177, [2012] O.J. No. 1208 (C.A.), Justice Watt explained how the court should deal with out-of-court statements:

Critical to the operation of the admissibility rule that excludes hearsay is the element of purpose. The purpose for which the out-of-court statement is tendered matters in defining what constitutes hearsay because it is only when the statement is tendered to prove the truth of its contents that the exclusionary rule is implicated and the need to test the statement's reliability arises: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 36. Out-of-court statements tendered to prove something other than the truth of their contents do not engage the exclusionary rule: R. v. Evans, [1993] 3 S.C.R. 653, at pp. 661-662; R. v. Kirkby (1985), 21 C.C.C. (3d) 31 (Ont. C.A.), at pp. 53-54.

[74] In this case, the statements of Mr. Mishibinijima to the mental health professionals are not being used to prove the truth of their content, but rather simply being considered for the fact that those comments were said. The fact that these statements were made assists in attempting to ascertain his knowledge of right or wrong and his capacity to assess the wrongness of his conduct against societal norms as it applied to the circumstances at the time of the index offence. As stated in Dobson, statements by an accused as to what he was feeling or experiencing at the time of the index offence can be used as original evidence tending to show the mental state at the material time. It should also be stated that both counsel referred to and relied on the comments made by Mr. Mishibinijima to advance their argument. Neither counsel raised any concerns about the admissibility of these statements.

[75] A person may well be aware that an act is usually contrary to societal standards and therefore wrong but, by reason of a mental disorder, may be incapable of knowing that the act is wrong in the particular circumstances in which the person finds himself. However, if, notwithstanding a mental disorder, a person has the capacity to know that his conduct is morally wrong, he is not exempt from criminal responsibility.

[76] In order to determine the person's state of mind at the relevant time, and specifically to attempt to uncover whether or not the person had the capacity of knowing the act was wrong at the relevant time, the Court should consider the following evidence:

1. Details of the person's mental state leading up to the index offence;

2. A history of the person's relationship with the complainant, including any potential motive to commit the act in question;

3. Information regarding how the act occurred, including any attempt to evade police or avoid detection;

4. Where there are delusions or auditory hallucinations, a consideration of whether the person has experienced these symptoms in the past and has the person been able to overcome the influence of such symptoms in the past;

5. Information as to whether the person attempted to stop themselves from the act they committed;

6. Information from the person regarding why they did what they did, what the consequences would be if they did or did not do the act, was the person concerned about the consequences, what authority were they acting on to commit the act, and the person's opinion as to whether or not the act is legal.

See: Bloom, Hy and Schneider, Richard D. Mental Disorder and the Law: A Primer for Legal and Mental Health Professionals, Toronto: Irwin Law, 2017, pp. 173-175

[77] In my view, there is ample evidence to demonstrate that Mr. Mishibinijima committed this act because he believed that the victim murdered his father. It was an act of revenge. After committing this act, he ran.

[78] As stated earlier, the crux of the inquiry is whether Mr. Mishibinijima lacked the capacity to rationally decide whether the act was right or wrong and hence to make a rational choice about whether to do it or not. I am not convinced that the auditory hallucinations or delusional beliefs Mr. Mishibinijima was likely experiencing made him perceive a wrongful act as morally right. I am not convinced, on a balance of probabilities, that any disordered condition of his mind deprived him of the ability to know right from wrong in these particular circumstances.

[79] This Court is prepared to accept Dr. Choptiany's diagnosis of Mr. Mishibinijima, namely, that he suffered from schizophrenia when he stabbed Mr. Mandamin. This Court is also prepared to accept that there may well have been a causal relationship between Mr. Mishibinijima's illness and the act he committed. However, these two conclusions are not enough to establish that at the material time he was incapable of knowing that his conduct was wrong according to the ordinary moral standards of reasonable members of society. See: R. v. LaPierre, 2018 ONCA 801. It is the view of this Court that Dr. Choptiany failed to adequately consider a wealth of information establishing his awareness of societal moral standards as would apply in these particular circumstances. This Court is entitled to reject expert opinion evidence that a person was incapable of knowing that his or her conduct was wrong and to come to its own conclusions on the basis of the evidence presented.

[80] Based on the facts of this case, the Court finds that Mr. Mishibinijima had the capacity to know this particular act was wrong but simply failed to use that capacity. Responsibility is not excused in these circumstances. Based on the totality of the evidence, Mr. Mishibinijima had the capacity to know that society regards his actions as morally wrong and proceeded to commit those acts. Even if he believed, because of his disordered mental state, that he had no choice but to act, or that his acts were justified, he does not qualify for a finding of being not criminally responsible, when he had the capacity to know that society regards his actions as morally wrong.

[81] On the totality of the evidence, it is the view of this court that Mr. Mishibinijima not only had the capacity to know that society regarded his actions as morally wrong, but in addition, he in fact knew that his actions were legally and morally wrong. Yet, in the face of that knowledge, he proceeded to commit the act, to stab Mr. Mandamin, because he was being told to do so and he felt that his act was justified due to the fact that he believed that Mr. Mandamin had killed his father – a revenge action. In that case, he cannot be said to lack the capacity to know the act was morally wrong.

[82] In the result, I am satisfied that Levi Mishibinijima is criminally responsible for the aggravated assault on Joseph Michael Gerald Mandamin. A finding of guilt and conviction will be recorded on the offence of aggravated assault.

Released: November 7, 2018

Signed: Justice V. Christie