Court Information
Ontario Court of Justice
Date: December 2, 2020
Court File No.: Ottawa 19-A11650
Parties
Between:
Her Majesty the Queen
— and —
Elliot Benge
Judicial Officer and Counsel
Before: Justice P. K. Doody
Heard on: November 30, 2020
Reasons for Decision on Crown application for NCR assessment released on: December 2, 2020
Counsel:
- Brigitte Laplante, for the Crown
- Meaghan McMahon, for the defendant
Decision
DOODY J.:
Crown Application for NCR Assessment
[1] On September 11, 2020 I found the defendant guilty of assaulting 2 women on October 17, 2019. The Crown has applied for an order for an assessment of his mental condition in order to determine whether he was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility. The application is opposed by the defendant.
[2] Section 672.11 of the Criminal Code provides that a court may order an assessment of the mental condition of the accused "if it has reasonable grounds to believe that such evidence is necessary to determine … whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1)."
[3] Sub-section 672.12(3) provides that where the Crown applies for an NCR assessment order, the court may only order an assessment if the defendant puts his or her mental capacity for criminal intent into issue or
(c) The prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.
[4] The defendant has not put his mental capacity for criminal intent into issue. The issue before me is whether the Crown has satisfied me that there are "reasonable grounds to doubt" that the defendant is criminally responsible.
Evidence at Trial and on This Application
[5] I made a number of findings of fact in my written decision of November 4, 2020 in which I found Mr. Benge guilty of assault. I summarize those facts here. The two complainants were walking on opposite sides of Rideau Street around 7:00 p.m. on October 17, 2019. The defendant was walking west along the south sidewalk of Rideau Street at the same time. He came up behind Ms. Kedir and pushed her down onto the sidewalk. He gave her several blows to the back of her head and her neck while yelling at her. He kicked her while she was on the ground. He then crossed the street and came up beside Ms. Plumadore, throwing her to the ground, kicking and hitting her.
[6] A police cruiser was driving along Rideau Street with two officers inside. The officer on the passenger side got out and ran towards Ms. Plumadore. As he did so, the defendant released her and ran down Rideau Street. The police officer ran after him and, with his partner, brought the defendant to the ground after a short pursuit.
[7] In 2009, Mr. Benge was found not criminally responsible on account of mental disorder for the death of his father. I have been provided with a number of Ontario Review Board decisions which set out the history of that determination and his ultimate absolute discharge by the Board on November 22, 2018. He suffers from Schizoaffective Disorder, multiple episodes. At the time of his absolute discharge, he was in full remission.
[8] The hospital risk assessment prepared for the purpose of the Board hearing on November 22, 2018 effectively concluded that the risk of Mr. Benge committing another violent act was dependent on whether he would cease to use his medications.
[9] Dr. Matthieu Dufour, Mr. Benge's attending psychiatrist, testified before the Board that if he stopped his medication or used substances, he would likely become psychotic.
[10] The Board noted in its decision of November 22, 2018 that
Any risk that Mr. Benge could represent would arise if he stopped his medication. The treatment team is confident that he will likely continue to be compliant with his medication.
[11] The defendant was arrested on October 17, 2019, the day of the assaults. The next day, October 18, this court ordered that he be assessed to determine his fitness to stand trial. He was admitted to the Royal Ottawa Hospital the same day for that purpose. His blood was tested on his admission. It showed no Clozapine, the medication he had been prescribed to prevent him from becoming psychotic.
[12] Dr. Mathias, a clinical psychiatrist who has been treating Mr. Benge since his admission to the Royal Ottawa Hospital on October 18, 2019, testified before me.
[13] She explained that schizoaffective disorder is a psychiatric illness which combines psychotic symptoms and affective mood symptoms. Psychotic symptoms refer to lost contact with reality – delusions or hallucinations. Affective symptoms are mood symptoms, which can be elevated – manic – or depressed. When elevated or manic, patients can be grandiose or extremely happy and talk very quickly, with disorganized conversations, jumping from one topic to another. When Mr. Benge is unwell, he shows symptoms of both mood and psychosis.
[14] She testified that Mr. Benge's schizoaffective disorder was obvious when she first met him after his admission to the hospital the day after the assaults. It was consistent, in her opinion, with his not having taken his prescribed medication.
[15] When she conducted a mental status examination on October 23, 2019, 5 days after the assaults, he was speaking quickly and tangentially, moving quickly from one topic to another. He would not answer questions. He showed a lack of concern for his situation. He did not recognize any of the symptoms of his illness or his need for medication. He had difficulty sitting still. He was a bit intrusive, disrespectful, and overly familiar, as might be expected from someone affected by that disorder. He made various grandiose statements and demonstrated various grandiose delusions.
[16] She noted that he demonstrated both psychotic symptoms and mood (affective) symptoms. These included inflated self-esteem or grandiosity, racing thoughts, sexually inappropriate behaviour, disorganized speech, disorganized behaviour, and auditory hallucinations.
[17] Dr. Mathias said that she had met Mr. Benge a number of years ago when he was a patient at the ROH under the earlier Review Board order. He presented quite differently then, when he was stable and had been for a number of years, than he did on his admission in October 2019.
[18] She said that Mr. Benge told her, when he was first admitted, that on the day of the assaults he had concerns while crossing paths with complete strangers. He told her that they were making negative comments to him despite the fact that they were merely crossing paths. He felt he was being targeted or being unjustly evaluated by them. She had concerns that these thoughts, which were very unlikely to be accurate given the context in which they had arisen, would have impacted how he behaved to the people around him.
[19] In cross-examination, Dr. Mathias was asked about a statement Mr. Benge had made to one of the arresting officers, in which he had said that people were calling him names like the vile racist epithet called "the n-word", and telling him to "fuck off". She testified that, in her opinion, this brought into question whether, as a result of his schizoaffective disorder, he was able to know that what he did to those people was wrong.
The Law About Crown Applications for an NCR Assessment
[20] As I have indicated, the Criminal Code imposes a higher standard when the Crown seeks an NCR assessment than when it is sought by the defendant or when the court orders it of its own motion. I must be satisfied both
(a) that I have reasonable grounds to believe that the evidence to be provided by the assessment is necessary to determine whether the defendant was, at the time of the offence, suffering from a mental disorder so as to be exempt from criminal responsibility (s. 672.11(b)); and
(b) that there are reasonable grounds to doubt that the defendant is criminally responsible for the offence on account of mental disorder (s. 672.12(3)(b)).
[21] This standard was put in place following the decision of the Supreme Court of Canada in R. v. Swain, [1991] 1 S.C.R. 933, in which the court held that the prior statutory regime governing the criminal law's treatment of mentally disordered persons contravened s. 7 and 9 of the Charter of Rights.
[22] An order requiring that an accused person be assessed to determine if he was not criminally responsible because of a mental disorder has significant ramifications. As Rosenberg J.A. noted in R. v. Szostak, 2012 ONCA 503, in the context of a defence application, a finding that the accused was not criminally responsible by reason of mental disorder would subject him to indefinite detention until he is no longer a threat to the public. As Rosenberg J.A. wrote at para. 64:
The consequences of a finding of NCRMD can be so profound that a high degree of procedural fairness and scrupulous attention to the rights of the accused are required.
[23] Trotter J., sitting in the Superior Court, made similar comments in R. v. John Doe, 2011 ONSC 92, when he wrote at para. 35:
… the assessment provisions under Part XX.1 must be approached with great care, especially when the Crown attempts to invoke them. In this case, the Crown's motivation for seeking an assessment is legitimate. Nevertheless, an assessment under Part XX.1 is an entrance into a socially protective regime, one that is accompanied by significant deprivations of liberty. Accordingly, one must proceed with restraint when applying these provisions. …
[24] As Trotter J. noted, the requisite standard – that "there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder" must be met in both of its parts. There must be reasonable grounds to doubt that the accused is criminally responsible and that the reason for the doubt is linked to a mental disorder and its relationship to either of the two bases set out in s. 16(1) – which requires that the mental disorder render a person incapable of either understanding the nature and quality of the act or knowing that it was wrong.
[25] In Mr. Benge's case, there is no doubt that he suffered from the mental disorder of schizoaffective disorder at the time of the offences. The issue is whether there are reasonable grounds to doubt that he is criminally responsible – that is, whether there are reasonable grounds to doubt that, as a result of his mental disorder, he was incapable of appreciating the nature and quality of his acts or of knowing that they were wrong.
[26] There is some discussion in the cases cited to me about the meaning of the words "reasonable grounds to doubt".
[27] Trotter J. suggests, at para. 40 of John Doe, that the issue is whether there are "reasonable grounds to believe that his disorder rendered him incapable of appreciating the nature and quality of his conduct or knowing that is wrong". He found, however, that there was no evidence to reach that conclusion. He did not find that there was some evidence, but not enough to support "reasonable grounds to believe". His enunciation of the standard as "reasonable grounds to believe" was not the basis of his refusal to make the order.
[28] Javed J. wrote in R. v. Sammut, 2017 ONCJ 302 at para. 35 that "a court must be satisfied a 'credibly based probability' exists to believe an assessment is necessary for one of the enumerated purposes." I note, however, that Javed J. was referring, in that paragraph, to the decision of Smith J. in R. v. Goudreau, 2015 ONSC 6758, in which the issue was whether to grant a defendant's application for an NCR assessment. The relevant standard was the one in s. 672.11, whether there were "reasonable grounds to believe that such evidence is necessary to determine" whether the defendant was NCR. Javed J. may well have been referring to that issue when he cited Goudreau.
[29] The Court of Appeal addressed both the s. 672.11 and the s. 672.12(3)(b) standards in R. v. Capano, 2014 ONCA 599, a decision rendered after Trotter J.'s decision in John Doe. Mr. Capano had been found not criminally responsible by reason of mental disorder for breaching a term of his probation order requiring him to attend at the Centre for Addiction and Mental Health for a mental health assessment. After the trial judge had found him guilty, the Crown obtained an order under s. 672.12(3)(b) detaining him for an assessment of his mental condition. Epstein J.A. wrote at paras. 33 to 35, after referring to the evidence considered by the trial judge:
In my view, based on this evidence, the trial judge properly concluded that the Crown had satisfied the requirements of s. 672.12(3)(b). The basis for the trial judge's belief that there were reasonable grounds to doubt Mr. Capano's criminal responsibility is clear.
Ultimately, it must be remembered that for a judge to order an assessment under s. 672.11(b) does not require that there be reasonable grounds to believe that the accused is actually exempt from criminal liability – only that there be reasonable grounds to believe that further evidence of the accused's mental condition is necessary to determine whether the accused is exempt from criminal liability.
Taken together, there was sufficient evidence that Mr. Capano suffered from a mental disorder and was subject to active delusions that may well have affected his capacity to understand the probation order and his obligation to comply with its terms.
[30] In my view, there is little to be gained by attempting to use other language to explain what is meant by the words Parliament chose to use to express the appropriate standard in s. 672.13(b) – that "there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder".
[31] In my view, there are such reasonable grounds. They are:
(a) The opinion of Dr. Mathias that an individual suffering from a schizoaffective disorder may suffer delusions and hallucinations;
(b) The opinion of Dr. Mathias' treating psychiatrists, as set out in the Review Board decision, that there was a risk of his disease reasserting itself if he did not take his medication;
(c) The evidence – the absence of Clozapine in the defendant's blood on admission to hospital the day after the assaults, and Dr. Mathias' opinion that his schizoaffective disorder on admission was obvious, consistent with his not having taken his medication – that Mr. Benge had not been taking his medication on the day of the assaults;
(d) Dr. Mathias' opinion that, when admitted to hospital, Mr. Benge was demonstrating both psychotic symptoms and mood-affective symptoms, including auditory hallucinations;
(e) Mr. Benge's statements to Dr. Mathias on admission that he was unfairly targeted, unjustly evaluated, and made the subject of negative comments by the women he assaulted; and
(f) Dr. Mathias' evidence that she was concerned that these thoughts would have impacted how he behaved to the people around him; and whether, as a result of his schizoaffective disorder, he was able to know that what he did to those people was wrong.
[32] I conclude that there are reasonable grounds to doubt Mr. Benge's criminal responsibility. To paraphrase Epstein J.A.'s words from paragraph 35 of Capano, there was sufficient evidence that Mr. Benge suffered from a mental disorder and was subject to delusions that may well have affected his capacity to understand that what he was doing was wrong.
[33] I also conclude that further evidence of the accused's mental condition is necessary to determine whether the accused is exempt from criminal liability.
Defence Submissions Regarding Evidence of Awareness
[34] Defence counsel submitted that two things should prevent me from reaching those conclusions – that the defendant ran from the police when he was discovered attacking Ms. Plumadore, and that he told the arresting officer that he had assaulted 3 people. She submitted that the former established that the defendant must have known that his act was wrong, and the latter established that he knew the nature and quality of his act.
[35] Dr. Mathias was asked about both of these things.
[36] She testified with respect to the first point that many persons who had been subject to an ORB detention order developed a deep distrust of the police, and this may well explain Mr. Benge's attempt to flee, although she admitted that she did not know whether he himself distrusted police.
[37] When asked about the admission to the officer that he had assaulted three people, Dr. Mathias said that at other times he had said that that was not true. She also testified that her main concern was, as I have said, with respect to whether the defendant would have been able to know that what he did was wrong, rather than whether he appreciated the nature and quality of his act.
[38] It may well be that these two facts play an important role in any determination of whether the defendant was not criminally responsible by reason of a mental disorder. However, the potential cogency of this submission does not, in my view, negate my conclusion that there is good reason to doubt that the defendant was criminally responsible. That conclusion does not mean that I have decided that he was not criminally responsible, any more than Dr. Mathias' concern about the effect of his mental disorder on his actions means that she has concluded he was not criminally responsible.
Order
[39] I order that the defendant be detained, in the custody of the Royal Ottawa Mental Health Center, for 30 days for the purpose of an assessment to determine whether he was, at the time of the alleged offences, suffering from a mental disorder so as to be exempt from criminal responsibility.
Released: December 2, 2020.
Signed: Justice P. K. Doody