Court File and Parties

Ontario Court of Justice

Date: 2019-11-15

Court File No.: Peterborough 190859

Between:

Her Majesty the Queen

— and —

Mohan Patel

Before: Justice S.W. Konyer

Heard on: September 27 and November 7, 2019

Reasons for Judgment released on: November 15, 2019

Counsel

Mr. K. Doyle — counsel for the Crown

The accused Mohan Patel — on his own behalf

Ms. P. Fry — as amicus curiae

Judgment

KONYER J.:

Facts

[1] On April 20, 2019, Lauren Roth was filling the gas tank of her truck at a gas station on Lansdowne Street in Peterborough when Mohan Patel approached her from the rear. He was carrying a lighter, which he lit and held close to her gas tank, causing a fireball to erupt. Ms. Roth, who fortunately was not physically injured during the incident, released the nozzle and fled the area. Mr. Patel then removed the gas nozzle from the tank and proceeded to spray gas on the side of the truck, setting the truck and himself on fire. He then climbed underneath the truck and lay on the ground for a moment before jumping up and running behind the gas station. Other people who were present at the station rushed to the area and extinguished the fire on both Mr. Patel and the truck.

[2] Emergency personnel responded to the scene. Mr. Patel was treated by paramedics, arrested by police, and transported to the hospital. The arresting officers noted that Mr. Patel was behaving strangely and formed the belief that he was suffering from mental health issues. While he was at the hospital, he was overheard telling medical staff that he had been trying to kill himself because "they told me to". He was later taken to the Sunnybrook Health Sciences Centre in Toronto to treat burns that covered approximately 10% of his body.

Charge and Procedural History

[3] Mr. Patel was charged with mischief endangering life, contrary to s. 433(a) of the Criminal Code. He has been in custody since his arrest. His case has been judicially pre-tried several times. Mr. Patel has chosen to represent himself in these proceedings, despite being repeatedly told that it would be in his best interest to be represented by counsel. When it became apparent that Mr. Patel was intent on representing himself, Ms. Fry was appointed as amicus curiae to assist the court in ensuring that his legal interests are protected.

[4] On July 4, 2019, Mr. Patel appeared before me. The Crown sought an order pursuant to s. 672.11 of the Criminal Code for a psychiatric assessment of Mr. Patel to determine whether he was criminally responsible for his conduct on April 20. Mr. Patel consented to this order, which I made upon being satisfied that reasonable grounds existed to believe that Mr. Patel may suffer from a mental disorder that would exempt him from criminal responsibility. The assessment was conducted at Ontario Shores Centre for Mental Health Services under the direction of Dr. Karen De Freitas, who prepared a comprehensive report dated August 28, 2019. While her findings will be reviewed in more detail below, it was her opinion that Mr. Patel was likely incapable of appreciating that his actions were wrong due to a cannabis induced psychosis at the time he committed this offence. Dr. De Freitas also offered the following opinion: "I would note from a medical perspective that cannabis use does not ordinarily induce psychosis in 'normal' persons, and that the presence of a cannabis induced psychotic disorder strongly suggests the presence of some underlying propensity to psychosis that is intrinsic to Mr. Patel." [1]

[5] On September 27, 2019, Mr. Patel appeared before me again and admitted that he had committed the actions that make out the offence of mischief endangering life as described above. While there is no dispute that this offence is made out on the facts that Mr. Patel admitted, Mr. Patel claims that he was not criminally responsible ("NCR") for his conduct on account of a mental disorder, as provided by s. 16 of the Criminal Code. The Crown disputes this claim on the grounds that cannabis induced psychosis is not a mental disorder within the meaning of s. 16. On November 7, 2019, I heard testimony from Dr. De Freitas on the issue, as well as argument from the Crown and Ms. Fry. Mr. Patel chose not to testify, call any other evidence, or make submissions at the NCR hearing.

The Issue

[6] While the Crown accepts Dr. De Freitas' expertise and does not dispute her finding that Mr. Patel was incapable of understanding that his actions were wrong, it argues that cannabis induced psychosis is not a mental disorder. The issue I need to decide, therefore, is whether the cannabis induced psychosis that incapacitated Mr. Patel on April 20, 2019 is a mental disorder within the meaning of s. 16 of the Criminal Code.

Legal Framework

[7] Subsection 16(1) of the Criminal Code provides that "[n]o person is criminally responsible for an act committed […] while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act […] or knowing it was wrong." Subsections (2) and (3) provide that every person is presumed not to suffer from such a mental disorder, unless the person making the claim proves otherwise on a balance of probabilities.

[8] The term "mental disorder" is not defined with any precision in the Criminal Code, except for s. 2, which simply provides that "mental disorder" means "a disease of the mind". As the Supreme Court recognized in R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575 at para. 58, this circular definition is unhelpful. In the earlier case of R. v. Cooper, [1980] 1 S.C.R. 1149, the Supreme Court ruled that "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." According to the Crown, this definition excludes the cannabis induced psychosis that was the likely cause of Mr. Patel's incapacity.

Psychiatric Evidence

[9] In order to determine whether the cannabis induced psychosis that rendered Mr. Patel incapable of appreciating that his actions were wrong is a mental disorder or disease of the mind, I will need to review the report and testimony of Dr. De Freitas in some detail. In preparing her report, Dr. De Freitas relied on records and information about Mr. Patel's stay in the Sunnybrook Health Sciences Centre and the Peterborough Regional Heath Centre, hospitals where Mr. Patel was treated for his physical injuries resulting from the fire. Dr. De Freitas also had access to records and information about previous hospitalizations of Mr. Patel arising from other apparently psychotic episodes in 2010 and 2014. Further, she relied upon extensive observation, questioning and testing of Mr. Patel during the course of his assessment at Ontario Shores. In addition, she had available to her information gathered by the police during the course of their investigation into the April 20 occurrence.

Prior Psychotic Episodes

[10] Dr. De Freitas found that Mr. Patel had likely suffered two, and possibly three psychotic episodes in his life. The first was in 2010 in the United States. According to his brother, Mr. Patel was using cannabis and PCP, was taken to a hospital following a separation from his wife, apparently diagnosed with bipolar disorder and then taken to a drug rehabilitation facility. Dr. De Freitas was unable, however, to obtain any clinical records to investigate this occurrence further.

[11] She did, however, obtain records relating to a psychotic episode that occurred in Etobicoke in 2014. At that time, the police were called by a landlord who had observed some bizarre behaviour. Mr. Patel had recently separated from his wife again, and was using cannabis regularly. He was taken to hospital, assessed and eventually diagnosed with marijuana induced psychosis and possible bipolar disorder.

Behaviour Prior to April 20, 2019

[12] With respect to the present incident, Dr. De Freitas noted that there was abundant evidence that Mr. Patel had been acting erratically in the period leading up to April 20. He had recently been fired from a steady job due to sexually inappropriate comments that he had made to a coworker. He also exhibited bizarre behaviour. As an example:

On April 14, 2019, Mr. Patel came to see [a coworker] at the front desk around 6:00, crying and telling her that "he hears voices in his head and he's scared that the people are out to kill him". He said that the voices were asking him for solutions to problems and that he was trying to help but was scared that he would say things that would make them angry. He said that he did not want to be affiliated with them but could not get away. He indicated that he talked to them on the phone and through his headphones all the time and that they were "famous people, or powerful people, something with politics or drug ring". Mr. Patel asked [the coworker] if he was safe to walk outside, and if anyone was going to come in and grab him. [The coworker] indicated that Mr. Patel would "momentarily snap out of it for a split second saying 'woooow this is crazy' and then go back to nonsense". She noted that he also said that he was feeling suicidal and was unsafe. He reported hearing music in his head day and night, and not sleeping. [The coworker] indicated that the texts that Mr. Patel sent "made no sense and were all over the place. Things like 'sex trafficking, slavery … give … cocaine support, I will starve for my sin, I am your child, please reply, waiting.'" [2]

[13] Another coworker observed that in early April Mr. Patel was "acting slightly manic lately, always high, has now offered weed to everyone here." He told this coworker that he was hearing voices in his head, that "drug lords were coming for him" and that "Natalie Portman was talking through him". Mr. Patel also "kept asking if people were human". This coworker believed him to be "very mentally unstable" at the time. [3] Both coworkers discovered evidence of ongoing cannabis use by Mr. Patel.

Observations at the Scene and Hospital

[14] When police attended the gas station immediately after the fire, they noted that he was "acting very strange and unpredictable". One officer wrote that "it was apparent throughout this incident, up to this point, that Patel was not in a normal state of mind and was suffering from mental health issues." [4] When Mr. Patel was transported to hospital, he was agitated and told medical staff that "they told me to commit suicide". [5]

Toxicology and Cannabis Use

[15] Dr. De Freitas also noted that a urine toxicology screen was conducted on April 20 at Sunnybrook. It was "negative for cannabinoids, as well as for amphetamine, benzodiazepines, cocaine and methamphetamine." In her testimony, Dr. De Freitas explained that these results are not inconsistent with her finding of cannabis induced psychosis because the state of psychosis can continue for a month following prolonged use. Importantly, her finding that Mr. Patel was suffering from cannabis induced psychosis does not mean that he was intoxicated by cannabis at the time of the offence.

[16] For his part, Mr. Patel claimed to medical staff that he had used cannabis shortly before committing the offence. He claimed that he had been using cannabis regularly for several months. He confirmed that he had been hearing voices telling him to kill himself. He also claimed that these symptoms continued afterwards during his course in hospital. Dr. De Freitas reviewed the observations made of Mr. Patel during his course in the hospitals in great detail in her assessment report. She explained that she concluded that he was likely feigning symptoms after the offence in order to gain what he perceives to be a favourable outcome in court by being found NCR. Mr. Patel, in her view, is not a reliable historian. Amongst other things, this means that his claim to have been under the influence of cannabis at the time of the commission of the offence ought to be approached with skepticism, particularly in light of the negative urine screen.

Analysis

The Bouchard-Lebrun Framework

[17] R. v. Bouchard-Lebrun, 2011 SCC 58, supra, is the leading case on the applicability of s. 16 to cases of drug induced psychosis. In that case, the Supreme Court cautions trial judges to "consider the specific principles that govern the insanity defence in order to determine whether s. 16 applies": para. 40. The court goes at para. 45 on to list these specific principles:

According to a traditional fundamental principle of the common law, criminal responsibility can result only from the commission of a voluntary act. This important principle is based on a recognition that it would be unfair in a democratic society to impose the consequences and stigma of a criminal conviction on an accused who did not voluntarily commit an act that constitutes a criminal offence.

[18] An accused who commits an offence due to a mental disorder which renders him incapable of appreciating that his actions are wrong does not commit that offence voluntarily. Where the issue, as in this case, is whether the accused was incapacitated by a mental disorder, the Supreme Court provides further guidance. "The 'mental disorder' concept continues to evolve, which means that it can be adapted continually to advances in medical science. […] It is thus flexible enough to apply to any mental condition that, according to medical science in its current or future state, is indicative of a disorder that impairs the human mind or its functioning, and the recognition of which is compatible with the policy considerations that underlie the defence provided for in s. 16": para. 60. [emphasis added]

[19] Thus, since it is clear that Mr. Patel likely suffered from a cannabis induced psychosis that impaired his mind, I must consider whether recognizing this as a mental disorder would be consistent with the principles that ground the NCR defence.

Balancing Public Safety and Criminal Responsibility

[20] Bouchard-Lebrun is instructive on this point. In that case, the accused consumed a variety of drugs and, while intoxicated, committed a viscous assault. There was no dispute that he was incapable of distinguishing right from wrong at the time he committed the assault due to his intoxication. The issue before the court was whether this incapacity was the result of a mental disorder. The Supreme Court adopted a contextual approach "to strike a fair balance between the need to protect the public from persons whose mental state is inherently dangerous and the desire to impose criminal liability solely on persons who are responsible for the state they were in at the time of the offence": para. 68. Persons whose mental state are inherently dangerous are more appropriately dealt with under the special provisions of Part XX.1 of the Criminal Code dealing with mentally disordered offenders, while those who are solely responsible for bringing about their state of incapacity are properly dealt with according to the usual sentencing principles.

The Internal Cause Factor

[21] In order to distinguish offenders whose mental state is inherently dangerous from those who are solely responsible for causing their state of incapacity, the Supreme Court directed trial judges to employ two analytical tools: the internal cause factor and the continuing danger factor.

[22] The internal cause factor involves comparing the accused to a normal person. The judge should "consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state". This comparison is objective and may be based on psychiatric evidence. "The more the psychiatric evidence suggests that a normal person, that is, a person suffering from no disease of the mind, is susceptible to such a state, the more justified the courts will be in finding that the trigger is external": para. 71. If the cause of the incapacity is external, the basic criminal law principles dictate that the offender should be held responsible in the normal course, since the offender voluntarily induced the incapacity. On the other hand, incapacity caused by an internal factor is involuntary, and criminal law principles suggest that such offenders are more appropriately dealt with under the mental disorder provisions of the Criminal Code.

[23] In Mr. Patel's case, the uncontradicted psychiatric evidence is that a normal person would not have reacted to chronic cannabis use in the same way as Mr. Patel. Again, Dr. De Freitas opined that "cannabis use does not ordinarily induce psychosis in 'normal' persons, and […] the presence of a cannabis induced psychotic disorder strongly suggests the presence of some underlying propensity to psychosis that is intrinsic to Mr. Patel." [6] This factor therefore supports his claim that his incapacity at the time he committed the offence was the product of a mental disorder or disease of the mind. In contrast, the accused in Bouchard-Lebrun was incapacitated by a single episode of drug use in circumstances where the "reaction of a normal person to such a pill would indeed be to develop toxic psychosis": para. 80. The Supreme Court held that those facts "strongly suggest[ed]" that the accused was not suffering from a mental disorder.

The Continuing Danger Factor

[24] The continuing danger factor is related to the need to ensure public safety by assessing the likelihood of a recurrence. "Where a condition is likely to present a recurring danger, there is a greater chance that it will be regarded as a disease of the mind. To assess this danger, the court must consider, among other factors, 'the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur'": para. 73. Where there is an ongoing need to protect the public from the risk presented by the accused due to a condition apart from voluntary drug use, policy considerations make it more desirable that the special procedures set out in the Criminal Code for mentally disordered offenders, including indefinite supervision, should apply.

[25] When I take into account Mr. Patel's psychiatric history, which shows a propensity by him to abuse drugs causing him to become psychotic, the continuing danger factor also compels me to the conclusion that it is desirable in the interest of public safety that he be found not criminally responsible. I am supported in this conclusion by the finding of the Supreme Court in Bouchard-Lebrun. There, the court held that "[a] malfunctioning of the mind that results exclusively from self-induced intoxication cannot be considered a disease of the mind in the legal sense, since it is not a product of the individual's inherent psychological makeup": para. 85. Importantly, the court also stated that a different result might have been reached if the accused "had a dependency on drugs that affected his ability to stop using them voluntarily" because "[t]he likelihood of recurring danger might then be greater": para. 83.

Conclusion

[26] Based on the information available to me, I make the following findings: that Mr. Patel was incapable of appreciating that his criminal conduct was wrong; that his incapacity was the result of the psychosis brought about by prolonged abuse of cannabis; that Mr. Patel has a propensity to suffer episodes of psychosis when he abuses cannabis; that a normal person without Mr. Patel's intrinsic propensity to psychosis would not have been incapacitated in these circumstances; and that there is a likelihood that the danger he presents as a result of this propensity will recur due to his history of drug abuse. In those circumstances, taking into account the principles underlying s. 16 of the Criminal Code, I conclude that it is in the interest of public safety that he be found not criminally responsible so that he is supervised indefinitely in order to manage the risk that he presents. Accordingly, I find that he suffered from a mental disorder that rendered him incapable of appreciating that his actions were wrong. Mr. Patel is not criminally responsible on account of a mental disorder.

[27] I order that Mr. Patel be returned to the Ontario Shores Centre for Mental Health Sciences pending a hearing before the Ontario Review Board.

Released: November 15, 2019

Signed: Justice S. W. Konyer

Footnotes

[1] Psychiatric assessment report, Exhibit 1, p. 40

[2] Psychiatric assessment, p. 4

[3] Psychiatric assessment, p. 4-5

[4] Psychiatric assessment, p. 3

[5] Psychiatric assessment, p. 3

[6] Psychiatric assessment, p. 40