Court Information

ONTARIO COURT OF JUSTICE DATE: 2021·03·30 NEWMARKET

B E T W E E N : HER MAJESTY THE QUEEN — AND — V F-P

JUDGMENT

Evidence and Submissions Heard: 30 March, 2021. Delivered: 30 March, 2021.

Counsel: Ms. Jeanaha Kim, counsel for the Crown Mr. Aaron Spektor, counsel for the defendant

Before: KENKEL J.

Introduction

[1] On May 12, 2020 Ms. V. F-P set fire to her house. A neighbour’s security video showed that she was acting erratically at the time. She then crossed the street, urinated on a lawn and lit a bag of yard waste on fire. Witnesses who were outside saw Ms. F-P laughing and screaming in Russian. She threw her hands up in the air and said “Yeah!”. Her mood quickly swung from laughing to crying. One witness asked her why she started the fire and Ms. F-P said, “it’s my house”. Ms. F-P then started chanting, “she’s dead, she’s dead”. Another neighbour who grabbed Ms. F-P said she appeared to be drunk or on drugs. The accused told that neighbour in Russian that she was “flying” and that she needed to vomit. She appeared to be listening to something on headphones.

[2] The basement tenant heard crashing and banging noises upstairs where F-P lived. She believed her landlady might be having a mental breakdown. There were two recent incidents where it appeared that Ms. F-P had thrown food at her front door. The Vaughan Fire Department was able to ensure that Ms. F-P’s children and her tenant were safe. Police offered Ms. F-P a bottle of water, but she said it would burn her insides. Ms. F-P was arrested and charged with a number of offences including six counts of Arson Endangering Life contrary to s 433 of the Criminal Code.

[3] Ms. F-P is fit to stand trial. The Agreed Statement of Facts (ASF) marked as Exhibit 1 was filed on consent of both parties. The sole issue at trial is whether the defence has proved on the balance of probabilities that the accused was suffering from a mental disorder at the time the offence was committed so as to be exempt from criminal responsibility Criminal Code s 16(3). In making that determination, the court must consider evidence of transient conditions – intoxication and fatigue – observed at the time of the offences. This case is unusual in that the defence has uncovered evidence of recent prior incidents, investigated by other police forces, where Ms. F-P appeared intoxicated, but breath tests showed her blood alcohol concentration to be zero.

Defence of Mental Disorder s 16

[4] No person is criminally responsible for an act:

• done while suffering from a mental disorder
• that rendered the person incapable of appreciating the nature and quality of the act
• or of knowing that it was wrong. Criminal Code s 16(1)

[5] The accused is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility unless the contrary is proved on the balance of probabilities – Criminal Code s 16(2).

[6] A mental disorder is defined in s 2 as a “disease of the mind” (troubles mentaux) which in turn has been defined as, “… 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 such as hysteria or concussion. In order to support a defence the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong” – R v Cooper, [1979] SCJ No 139.

[7] Self-induced psychosis produced exclusively through consumption of drugs or alcohol does not constitute a “mental disorder” under s 16 – R v Bouchard-Lebrun, [2011] SCJ No 58, 2011 SCC 58. When confronted with a state of psychosis that emerged while an accused was intoxicated, a court should start with the general principle that temporary self-induced psychosis is excluded by Cooper. This principle may be rebutted where the defence shows that at the material time the defendant was suffering from a disease of the mind unrelated to the symptoms of intoxication – Bouchard-Lebrun, at para 69.

[8] To determine whether an accused has discharged the burden of proof under s 16(2), the court should adopt a flexible, "holistic approach" structured around two analytical tools:

• the Internal Cause Factor
• the Continuing Danger Factor. Bouchard-Lebrun at paras 69-73

[9] The internal cause factor asks whether a “normal person” would have reacted to the same circumstances by entering into a state of psychosis as the accused claims here. The comparison is objective and may be based on the 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 and therefore excluded from the scope of s 16. Bouchard-Lebrun at para 71.

[10] The continuing danger factor is related to the need to ensure public safety by assessing the likelihood of recurring danger to others. “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 episode will recur”. Bouchard-Lebrun at para 73. Danger will be recurring only if it is likely to arise again independent of the will of the accused.

[11] The defence in s 16 exempts from criminal responsibility an accused whose actions are morally involuntary. The purpose of the s 16 inquiry is to determine whether the mental condition of the accused poses an inherent danger, one that persists despite the will of the accused. If the accused can voluntarily create the danger by consuming drugs or alcohol it is not a “mental disorder” under s 16. Bouchard-Lebrun at para 74.

[12] In each case, trial courts must engage in an individualized analysis focused on the specific circumstances of that case – Bouchard-Lebrun at para 77.

F-P Before the Incident

[13] The neighbours described F-P as a good mother but in the weeks immediately prior to the incident she changed. She stopped making food for her children but used online apps to order delivery. She was unable to focus, at one point ordering 7 pizzas which her son then gave away. She wasn’t eating herself but was smoking and drinking alcohol. One day her son found her burning paper in her room. Her tenant described two incidents where F-P threw food at her door for no apparent reason.

[14] Less than two months earlier, on March 28, 2020, F-P drove down to Windsor, again for no apparent reason. She checked into a hotel then went out driving. She happened to drive right up to a fully marked OPP police cruiser. She tailgated the cruiser, then drove past the officers in the oncoming lanes and continued away at high speed. They called off their pursuit given the dangerous nature of her driving. Minutes later they attend the crash scene where Ms. F-P’s car was in the ditch. She was given an approved screening device test and the result was 0mgs/100ml showing she had no alcohol in her system. She was not displaying symptoms of drug use, so no field sobriety test was done. There was no evidence of alcohol or drugs in her car. Subsequent evidence from Ms. F-P showed that this was a suicide attempt.

[15] In 2011 Ms. F-P was admitted to hospital for depression with a diagnosis of possible psychosis/mania with infanticidal impulses. She visited an outpatient psychiatrist and was prescribed Olanzapine, but she stopped taking that medication after one week.

May 12th – The Day of the Incident

[16] Ms. F-P was drinking on the evening of May 11th. In the early morning hours she left her children alone in the house and drove to Toronto. She was driving at high speed without regard for other drivers or traffic signals. She collided with another vehicle and was arrested on suspicion of impaired driving given her presentation. Despite her drinking earlier that evening, when tested on an approved instrument her blood alcohol reading was again 0mg/100ml. She was released and she made her way back home, arriving at 4:00 a.m. It’s conceded that this was Ms. F-P’s second suicide attempt.

[17] Her children left that morning but arrived back later that day at 7:00 p.m. to find their mother in what appeared to be some sort of mental breakdown. She appeared intoxicated. She was smashing dishes in the house. There were broken items from the house scattered outside. When the children left with their father, F-P ran over and tried to get inside the car. She was wearing an inappropriate shirt featuring women’s body parts. The downstairs tenant also heard the smashing and crashing sounds from upstairs and though the accused may be in mental distress.

[18] Around 7:45 p.m. it was still daylight and neighbours were out when Ms. F-P set fire to her home. The evidence of the witnesses and the home security video showed several observations consistent with alcohol impairment:

• she appeared to be intoxicated
• there was an odour of alcohol on her breath
• she was unsteady on her feet
• at one point she needed to vomit
• she was belligerent.

[19] Other observations suggested more was involved than alcohol:

• she was seen alternately laughing then crying
• she seemed to have racing thoughts
• she pulled down her pants and urinated on the lawn in front of neighbours
• she crossed the street and set a neighbour’s leaf bag on fire
• she told a neighbour who grabbed her that she was “flying”
• she told the police officer who offered her water that it would “burn her insides”
• her mood changed abruptly and at times she was kicking, screaming and spitting at the police for no apparent reason.

F-P After the Incident

[20] Ms. F-P was taken to hospital after her arrest. The hospital staff observed that:

• she was in restraints and combative with the officers,
• she was “ranting”, nonsensical
• she engaged in repetitive acts such as chanting
• she would abruptly change to Russian while speaking
• she was sexually provocative with staff
• her mood swung quickly from aggressive and angry to calm, then back
• she told hospital staff she’d twice tried to kill herself recently in her car

[21] The initial impression was that she was suffering from psychosis or a manic episode. She was held under a Form 1. A later examination found, “This woman is likely psychotic. The differential diagnosis would be unipolar or bipolar affective disorder”. She was treated with psychiatric medication. She was subsequently discharged to police custody two days later.

[22] The examination prior to discharge noted:

• she was oblivious to her behaviour and the consequences
• she was possibly suicidal and homicidal
• she acknowledged having auditory hallucinations but did not elaborate.

[23] She was interviewed by police three days after the incident. At that time, she was oriented as to the circumstances of her interview and she understood the allegations. She was able to choose what she wished to talk about, and she told police that there were things she would only discuss with her lawyer.

[24] At the Central East Correctional Centre on admission the accused agreed with the suggestion on an intake questionnaire that someone can control your mind remotely. Despite all that she’d been through, including the burning down of her home and her subsequent arrest and incarceration, she described her condition as, “amazing”. Staff found her extremely happy and euphoric. A few weeks later she was downcast and disheveled. She denied psychosis, but she told the psychiatrist that her former boyfriend was drugging her food prior to the incident. The conclusion of the staff psychiatrist in June of 2020 was that she had “a recent psychotic episode – possible bipolar disorder”.

The Report of Dr. Gojer

[25] Dr. Gojer is a well-known and highly regarded forensic psychiatrist. He also has a Juris Doctor degree from Osgoode Hall Law School which may explain, in part, why his diagnosis and report in this case provide such a thorough medical review of F-P’s history and condition as relevant to the test in s 16 of the Criminal Code.

[26] Dr. Gojer reviewed extensive information about the accused’s personal and medical history as listed at the outset of the report. He had the benefit of an in-depth direct interview with the accused. He also had a report from another psychiatrist who conducted an assessment of criminal responsibility for the Crown and came to a different conclusion, attributing Ms. F-P’s actions to Alcohol Use Disorder. After reviewing Dr. Gojer’s report and all of the evidence obtained by the defence, the Crown did not tender the earlier assessment beyond the fair and detailed summary in Dr. Gojer’s report.

[27] On the more extensive evidence available to him, Dr. Gojer concluded that he could not agree that Ms. F-P suffered from Alcohol Use Disorder at the time of the index offences. His diagnosis was that Ms. F-P suffered from Bipolar Mood Disorder. She was in a manic state at the time of the Arson offences.

[28] At pages 47-59 he explained in detail while he found that Ms. F-P knew she was setting fire to her house, but her thinking at the time was irrational due to her manic state. She would not have been able to understand the consequences of her actions. “Her disorganized thought processes and irrationality in this manic state prevented her from weighing the pros and cons of her actions, preventing her from exercising rational choice and prevented her from knowing what she did was morally wrong”.

Analysis

[29] Dr. Gojer’s thorough review of Ms. F-P’s medical and personal history provides a sound basis for his analysis of her mental state at the time she set fire to her home. He had important information that was not available at the time of the first assessment, including information about two recent prior incidents, investigated by two different police forces, where officers believed for good reason Ms. F-P was intoxicated but breath tests showed she had no alcohol in her system.

[30] In this case there was evidence of alcohol consumption, apparent intoxication and fatigue through lack of sleep. These are transient states that detract from an assertion of mental disorder. However, the two prior incidents, one only hours before these offences, show that although Ms. F-P may well have consumed alcohol that evening, her behaviour cannot be assumed to be a result of intoxication. She has displayed similar such symptoms where subsequent tests confirmed that she had no alcohol in her system. While I accept there was some alcohol consumption at the time of these offences, the observations of apparent intoxication must be viewed in that context.

[31] Adopting the holistic approach described in Bouchard-Lebrun, even making allowance for alcohol consumption and fatigue, the whole of the evidence shows that the accused’s difficulties that day went far beyond what reasonably could be attributed to those two factors. The same conclusion results even if some of her observed behaviour was as a result of intoxication. Her overall history including recent suicide attempts and mental difficulties shows mental difficulties independent of any drinking, fatigue or transient factor that may have been present at the time. A person without those significant underlying difficulties would not have acted the way she did that day even if they were tired, intoxicated or both.

[32] The evidence also shows that her condition presents a recurring danger. Unless treated, she will likely continue to suffer from episodes of mania and depression independent of any volition on her part. This poses a risk to Ms. F-P as shown by her prior suicide attempts and to the public. This factor also shows that her condition involves a “disease of the mind” within the meaning of s 16.

[33] I find that the defendant has proved that the index offences were committed while she was suffering from a mental disorder that rendered her incapable of appreciating the nature and quality of her actions. Further, the evidence shows that at the time she was incapable of knowing that what she was doing was wrong.

Conclusion

[34] Mr. Spektor is to be commended for obtaining detailed information about his client, including records from two other jurisdictions that cast the events of May 12th, 2020 in a much different light. In my view, if the original psychiatrist had that further information she would likely have come to the same conclusion as Dr. Gojer. Dr. Gojer’s extensive experience and his comprehensive report were of genuine assistance to the parties and to the court.

[35] I also commend Asst. Crown Ms. Jeanaha Kim and Crown Attorney Mr. Sean Doyle for their review of this case. It’s important that the Crown’s office be open to the receipt of new information and be willing to reassess their case where necessary. The Newmarket Crown’s office did both throughout the case management of this matter. The focused proceeding that resulted was in the accused’s interest but also very much in the interest of the community as a whole.

[36] I find Ms. F-P not criminally responsible with respect to each of the six counts on which she was arraigned. The Crown withdrew the remaining counts.

Delivered: 30 March, 2021 Justice Joseph F. Kenkel