R. v. Stewart, 2021 ONCJ 559

CITATION: R. v. Stewart, 2021 ONCJ 559

St. Catharines

DATE: 2021.10.14

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRANDON STEWART

Before Justice Fergus ODonnell

Heard Between 15 November, 2018 and 11 May, 2021

Judgment on 18 August, 2021

Reasons for judgment released on 14 October, 2021

Mr. Andrew Brown................................................................................................. for the Crown

Mr. Scott Reid................................................................... for the defendant, Brandon Stewart

Fergus ODonnell J.:

Overview

1. On 18 August, 2021 I made a finding that Brandon Stewart was not criminally responsible for two offences he had admitted committing in a plea entered almost three years earlier. In the time between Mr. Stewart’s admission of the underlying facts and my finding, various things had happened including an original psychiatric and psychological assessment, changes of Crown and defence counsel and challenges with funding a ‘defence’ psychiatric assessment as well as a world-wide pandemic. These are my reasons for the finding I announced on 18 August, whereupon I referred Mr. Stewart to the Ontario Review Board for disposition.

The Offences in Brief

2. On 15 November, 2018, the day after his thirtieth birthday, Mr. Stewart was arraigned on two charges, namely the attempted murder of Patrick A. on 18 May, 2018 and shortly thereafter assaulting Constable Duc Kim with a knife (assault by menacing). Both offences occurred at the Douglas Hospital in Fort Erie and they had very serious consequences for both Mr. A. and Mr. Stewart, both of whom were transferred for emergency surgery in Buffalo, New York, Mr. A. because of stab wounds inflicted by Mr. Stewart and Mr. Stewart because, having persistently advanced on Constable Kim while wielding a knife minutes after stabbing Mr. A, he found himself with a gunshot wound to his stomach.

The Offences in Detail

3. On 18 May, 2018 both Mr. Stewart and Mr. A. were patients at the Douglas Memorial Hospital, a small, limited-service hospital fortuitously located within spitting distance of the United States border. They were complete strangers to one another, their only commonality being their presence at the same hospital at the same time.

4. Mr. Stewart has a history of mental health intervention that pre-dates these offences by more than a decade and he has a history of involvement with the criminal justice system that pre-dates that mental health involvement by a few years. Both the criminal justice and mental health involvement pre-date Mr. Stewart achieving adulthood as defined in the Youth Criminal Justice Act. On 18 May, 2018, Mr. Stewart arrived at the hospital by ambulance, having called to say that he had been living in the bush for about a fortnight and complaining of nausea, tick bites and hallucinations. At the time of his pickup by the paramedics, Mr. Stewart was coherent and was in no obvious distress.

5. En route to the hospital, Mr. Stewart told the paramedics that he had a knife and asked them what he should do with it. The paramedics told Mr. Stewart that they would discuss it with the nurses on arrival at the hospital. On arrival, the paramedics told the nursing staff that Mr. Stewart, “had schizophrenia, hallucinations and generally felt unwell.”[^1] The hospital’s records of his admission showed Mr. Stewart saying he had run out of his medications a few days earlier,[^2] that he was hallucinating and hearing voices over the previous few days and was covered in ticks; Mr. Stewart clarified that he was having no hallucinations that particular day. The nurses said they would keep Mr. Stewart’s bag at the nursing station, thus separating him from his knife.

6. On his original examination Mr. Stewart was noted as behaving appropriately, calmly and politely. He was clean and well-organized and said he was enjoying life in the bush. He accepted the nurse’s offer to make some calls for mental health and shelter resources in case he decided he wanted to discontinue life in the wild.

7. Mr. A. arrived at the hospital about twenty minutes after Mr. Stewart, due to injuries suffered in a fall. He was placed in the treatment room next to Mr. Stewart’s.

8. After a while, Mr. Stewart started pacing the halls, saying the treatment room was too small; the nurse asked him to stay within her line of sight, whether in the room, in the TV waiting room or by her station. CCTV footage showed him pacing for about an hour and forty minutes, starting about thirty minutes after his arrival and ending with the attempted murder. He occasionally spoke with the nursing staff. He occasionally looked into the room where Mr. A. was providing a blood sample to a nurse. He spoke with a woman in the corridor very soon before he attacked Mr. A. and told her that he was anxious about being in the hospital, that he felt really sick, that, “his mental health was really off,” and that he was having hallucinations and hearing voices telling him things.

9. Around 7:55 p.m. Mr. Stewart entered the room where Mr. A. was prone on a stretcher. He moved swiftly and lunged at Mr. A., straddled him and started stabbing him with his knife while Mr. A. tried to fend him off and roll aside. Mr. Stewart said nothing as he stabbed and Mr. A. rolled to the floor, leaving Mr. Stewart face to face with the nurse, who fled, whereupon Mr. Stewart stabbed Mr. A. in the back and said, “die”. Mr. Stewart kept trying to stab Mr. A., but Mr. A. managed to block him. Mr. Stewart accused Mr. A. of hurting kids, to which Mr. A. replied that he had the wrong guy. Mr. Stewart said Mr. A. deserved to die for beating kids.

10. About thirty seconds after entering Mr. A.’s room, Mr. Stewart left it, holding the knife pointed down by his side and pacing the hallway back and forth to the nurses’ station. He appeared to be agitated and to be yelling in the direction of Mr. A.’s room. Mr. A. came out of the room seeking help, saw two police officers arrive and heard them scream four or five times at Mr. Stewart to drop the knife. Mr. Stewart instead yelled at the police and advanced quickly on Constable Kim, ignoring police warnings, whereupon Constable Kim shot him.

11. Mr. A. was taken to the Erie County Medical Center in Buffalo, New York where he was treated for two penetrating stab wounds including a punctured lung. He was released from hospital three days later. Mr. Stewart was also taken to the Erie County Medical Center with a bullet wound to the abdomen. He told the paramedic en route that Mr. A., “had been bragging about killing puppies,” and, “he hated that guy for saying such a thing, so he took out his knife and stabbed him.” He was transferred from the Erie County Medical Center to a hospital in St. Catharines three weeks later.

Mr. Stewart’s Background

12. As the central issue in this trial was whether or not Mr. Stewart was criminally responsible for his offences against Mr. A. and Constable Kim, I do not have much information about his background, as would be found in a pre-sentence report. What I know about his background comes from his criminal record and from the medical reports prepared on the issue of criminal responsibility.

Mr. Stewart’s Criminal Record

13. As I noted earlier, Mr. Stewart has a long history of involvement with the criminal justice system, both as a young person and as an adult. In a three-and-a-half-year period from when he was thirteen to seventeen years old, he accumulated twenty-two convictions under the Youth Criminal Justice Act. As is typical for young offenders, almost half of those offences were for failure to comply. A few were property offences. However, there were more serious offences including flight and dangerous operation at age fifteen, as well as a seemingly separate incident, also at age fifteen where he was found guilty of impaired driving and taking a motor vehicle without consent. There are two drug possession convictions at age seventeen.

14. Mr. Stewart has seventeen convictions in the ten-year period between early 2007 and the spring of 2017, a year before these offences. Again, there are a few failure to comply convictions and several property offences, but there are also, in order, a threatening conviction, an assault, an aggravated assault in 2011 for which Mr. Stewart received an eighteen-month sentence and an assault conviction again in 2016. There is one drug possession conviction, in 2011.

Mr. Stewart’s Mental Health Treatment History

15. The history of Mr. Stewart’s previous psychiatric interventions is set out in a very thorough report from St. Joseph’s Healthcare as a result of his admission there for examination the day after he entered his plea before me in November, 2018. I do not propose to reproduce verbatim the treatment chronology in that very thorough report, but rather present some of the highlights in the following chart.

Dates, Hospital, Treating Physician	Observations, Conclusions, Etc.
February, 2006 Dr. Pallen	Mr. Stewart, seventeen at the time was in a young offenders’ group home. Easily angered, no frustration tolerance. Diagnosed with “traits of antisocial personality disorder” as well as drug and alcohol abuse.
8 February-29 June, 2012 St. Lawrence Valley Correctional & Treatment Centre Dr. D. Watson	Mr. Stewart was serving the final portion of an eighteen-month sentence for aggravated assault, etc. Complaints of a constant, angry male voice in his head calling him demeaning names. Auditory hallucinations were not improved despite various anti-psychotic medications, although Olanzapine seemed to have some, limited, effect. Found to have symptoms of schizophrenia. Declared incompetent to manage his finances. On discharge, denied psychotic symptoms, much reduced paranoia, intermittent auditory hallucinations, mood and anxiety much improved. Discharge diagnosis: schizophrenia, PTSD, ADHD, alcohol and polysubstance disorder, learning disorder, possible fetal alcohol syndrome disorder. On discharge he returned to Niagara rather than attending a residential addiction centre in Ottawa. This was by far Mr. Stewart’s longest “in-patient” experience.
13-22 July, 2015 Niagara Health St. Catharines Dr. El Saidi	Admission after overdose of methylphenidate, i.e. fifteen 54 mg tablets of Concerta[^3] over two days. Reported auditory hallucinations and homicidal ideation. Anti-psychotic medications had good effect. “No abnormal perceptual experience on discharge.” Discharge diagnosis: schizophrenia
12-21 August, 2015 Niagara Health St. Catharines Dr. Uwaifo	Taken to emergency by police after his mother reported he was, “talking to imaginary people and acting bizarrely”. He was hearing voices. He had been abusing Concerta and using marijuana and cocaine. Anti-psychotic medications had good effect again. On discharge no homicidal ideation or psychotic symptoms. Discharge diagnosis: Psychosis not otherwise specified; stimulant abuse.
23-28 August, 2015 (two days later) Niagara Health St. Catharines Dr. Uwaifo	Taken to hospital by police after being violent at home; assaulted his mother’s boyfriend. He said they had come home intoxicated and he believed they were laughing at him. No behavioural issues on ward; no violence or threatening. Discharge diagnosis: Schizophrenia, paranoid type; substance-related psychotic disorder, antisocial personality traits.
28-29 December, 2015 Niagara Health St. Catharines Dr. Van Kampen	He called police saying someone was in his apartment taking things and that he was being “blamed for murder”. Urine tests for methamphetamines, MDMA, benzodiazepines and amphetamines and he admitted using crystal meth three days earlier. He was agitated on admission, punched a guard and damaged hospital property. He was discharged into police custody the next morning. Discharge diagnosis: Substance-induced psychotic disorder; stimulant-use disorder; personality disorder, unspecified
11-18 December, 2017 Niagara Health St. Catharines Dr. Uwaifo	Mr. Stewart stopped a police car and told them he had a knife and wanted to harm himself and others. He was sleeping rough and had been using crystal meth and cocaine. Urine test showed amphetamine, cocaine, MDMA and oxycodone, but he said the last two must have been taken inadvertently. Good response to medication Discharge diagnosis: Substance-induced psychosis; stimulant intoxication; poly-substance use disorder; anti-social personality disorder.
20 May, 2018 Erie County Medical Center Buffalo Dr. Ruggieri	This is the hospital to which Mr. Stewart was taken after he was shot by police in the Fort Erie hospital. Mr. Stewart told Dr. Ruggieri that he was ‘high’ on Concerta and voices were telling him that Mr. A. had tried to kill children, so he stabbed Mr. A. Mr. Stewart later said that he had been given a line of cocaine by a nurse during his stay at the Erie County Medical Center.

It will be noted that of these interventions, there are three diagnoses of schizophrenia by three different psychiatrists (including from his longest, and earliest in-patient, intervention, at St. Lawrence Valley). Every intervention refers to drug or alcohol abuse, either in the underlying facts or in the diagnosis (or both), including a few diagnoses of substance-induced psychosis. Hallucinations are a recurring theme.

Mr. Stewart’s Substance Use and Medical Histories (As Told to St. Joseph’s)

16. Mr. Stewart began drinking alcohol heavily at twelve years old and began daily marihuana use at fourteen, whereafter he experimented with virtually every street drug available. His use of MDMA spanned four years, from age fifteen to nineteen, and ended when he became worried about cognitive impairments. He began using opioids around the age of twenty-three, including some very high consumption including Percocet, Oxycontin and heroin. Around age twenty-five Mr. Stewart was introduced to crystal methamphetamine; although he reported using it only five or six times in total, medical records showed that on the second-last mental health admission listed above he said he had taken crystal methamphetamine for three straight days before a mental health admission. He was a very occasional user of cocaine.

17. Quite apart from street drugs, it seems clear that Mr. Stewart has abused prescription medications. For example, he has been prescribed Concerta for attention-deficit-hyperactivity disorder, but has also misused it, including admitting snorting several 54mg tablets once a week to achieve euphoria. When interviewed at St. Joseph’s he, “denied recent misuse of his prescribed Concerta.” It is unclear what “recent” means in this context. Does it mean in the past several months, all of which he was in custody or hospital for, or is it a contradiction of his assertion to Dr. Ruggieri in Buffalo about being high at the time of the attacks?

18. Mr. Stewart has participated in four- and six-month residential substance abuse treatment, once in Ottawa, the other in Fort Erie. He has found Alcoholics Anonymous and Narcotics Anonymous meetings to be helpful.

19. As for his physical and mental health, Mr. Stewart told the staff at St. Joseph’s

    1. That he had suffered multiple head injuries from sports as a child.
    2. That he had a series of seizures at age fifteen resulting in extensive medical testing.
    3. That there was a family history of mental health, i.e. that his grandmother was schizophrenic and his mother was bipolar.

20. The foregoing paragraphs demonstrate one of the greatest challenges in assessing the question of Mr. Stewart’s eligibility for the not-criminally-responsible finding: Mr. Stewart himself. Ironically, the Crown’s argument that Mr. Stewart’s psychosis was substance-induced depends to some extent on his reliability, in the form of his admission to Dr. Ruggieri about being high. For doctors and lawyers and judges, facts and history matter, a lot. Distilling those facts and histories will often depend significantly on the subject of the proceedings him- or herself, in this case Mr. Stewart, but people, even people without mental health challenges, addictions or an interest in the outcome of the process, can be unreliable historians. If I were forced to pick the one pre-eminent conclusion that every professional participant appearing before me seemed to agree upon, it would be that Mr. Stewart is not a reliable historian. For example:

    1. His mother recalled no history of head injuries from sports.
    2. His mother recalled no seizures in childhood or adolescence.
    3. His own previous reports, according to health records, relate several drug-induced seizures between nineteen and twenty-one years old.
    4. His mother denied that she had any mental health issues herself and his aunt denied that Mr. Stewart’s grandmother was schizophrenic, saying rather that she suffered from memory loss perhaps arising from dementia.[^4]
    5. Mr. Stewart said during his interviews at St. Joseph’s that he had not engaged in any recent abuse of his prescription Concerta. In context, that could not realistically have meant his time in St. Joseph’s itself, a highly regulated, secure medical environment. By contrast, he had told Dr. Ruggieri in Buffalo that he was high on Concerta when he attacked Mr. A. He had told the paramedics in Fort Erie that he had been abusing his Concerta during his time in the woods.
    6. As is seen later in these reasons, Mr. Stewart’s descriptions while in St. Joseph’s of the period leading up to his attacks on Mr. A. and Constable Kim were not always consistent. There were also various inconsistencies in his description of events or history to the team at St. Joseph’s and to Dr. Gojer, which Dr. Gojer challenged him on.

Mr. Stewart’s Time At St. Joseph’s

21. Mr. Stewart presented as, “calm and cooperative,” on admission with normal speech traits and logical thought processes. On admission he denied any hallucinations and showed no apparent perceptual disturbance but said that he had suffered from auditory hallucinations while in jail, various nocturnal voices threatening to kill his family. He said that people in jail were forever whispering and plotting. He had regular nightmares.

22. About a week into his admission to St. Joseph’s, Mr. Stewart reported that he had been experiencing, “increased auditory hallucinations and paranoid ideas for several days”, which seemed to be supported by an observed irritability on his part the day before. He said these voices were “more threatening” and that he thought the security staff were going to come in and get him. A tweak to his medication improved the situation the following days but was followed by voices he heard during the daytime threatening to kidnap and kill his mother, whereupon he became distressed and agitated, punching a door and wall. This was the only acting-out of his three week admission and he was soon compliant and remorseful.

23. The nocturnal hallucinations continued through Mr. Stewart’s three weeks in St. Joseph’s. There might be a few or hundreds of voices, men or women, talking to him or amongst themselves, he would sometimes reply, either out loud or in his own head, would sometimes have a conversation. Threats to his family were most common. He was paranoid about aliens in humanoid form being among us. His mood was generally upset or sad or anxious.

Mr. Stewart’s Description to St. Joseph’s of the Attacks and Antecedent Events

24. Mr. Stewart said that he had been living with his grandmother for a year-and-a-half before the attacks. He said that his grandmother was “nuts” suffering from paranoid beliefs about aliens, some of which he shared, leading him to sleep with his knife and sometimes to search the house for aliens, armed with his knife. He said that he himself had been hearing voices every day since he was fifteen years old. He eventually left his grandmother’s house, but his description of where he went immediately after that was not consistent. He ended up in a hotel room and had a daily routine, but his attendance upon his psychiatrist fell victim to distance and lack of funds. He continued hearing threatening voices, including aliens who would kill him and take his DNA. He went to Fort Erie a couple of times to renew his Concerta prescription, but said it was so strong that he only took it intermittently. In a different interview he reported going off his medications entirely for two months. He gave different versions of his departure from the hotel, one spontaneous and the other planned, including wiping down all the surfaces so he would not leave any of his DNA.

25. Mr. Stewart said he had not taken any drugs in the days leading up to the attacks. However, three days before the attacks he drank a small bottle of rum and felt sick as if someone had drugged his rum. He felt physically unwell and in the ensuing days was seeing shapes as he tried to sleep, snakes entering his tent and “baby panthers moving on the ceiling”. (He told Dr. Gojer that the panther had morphed from a sock into a panther and that he was aware that these were hallucinations). These hallucinations were solely nocturnal and ended after three days, although the physical discomfort continued.

26. Depending on the telling, Mr. Stewart felt either paranoid and physically ill or just physically ill on the day of the attacks. He either saw his probation officer that day or the day before. In some interviews he was having auditory hallucinations on the day of the attacks; in others there was no hallucination that day. He recalled calling for an ambulance because he felt he had been poisoned. There is no apparent mention of poisoning to the paramedics. He recalled disclosing his possession of a knife to the paramedic, but told the staff at St. Joseph’s different reasons for having it, from his schizophrenia leading to constant fear and paranoia to hearing radio reports of coyotes in the area to hearing actual coyotes killing prey near his tent at night, which scared him.

27. Mr. Stewart gave different versions of how he felt on arrival at the hospital, one version saying he was hallucinating, another not. He had told the paramedics he had been hallucinating for two days, which the paramedic conveyed to the nurses, whereupon Mr. Stewart accused the paramedic of lying. He said that on arrival someone was staring at him and he felt that person wanted to hurt him, saying the person was holding a pillow in front of his waist, behind which he was concealing a knife to kill Mr. Stewart with. Some versions had Mr. Stewart actually seeing a knife behind the pillow. Mr. Stewart said he felt the person (the ultimate victim, Mr. A., it seems) was plotting with nursing staff to kill him, either outside or where there was no CCTV. He spoke of hearing everyone speaking a foreign language. He heard voices telling him Mr. A. had killed children and was going to kill Mr. Stewart and frame him for the child-killings. He might have heard a werewolf killing a child outside his tent the night before or that might have been Mr. A.

28. Mr. Stewart said he got his knife out of his bag and hid it in his pants so he could defend himself if attacked by Mr. A. He had no memory of attacking Mr. A., but knew what he had done when he saw his knife was wet and felt sick for that and worried that Mr. A. would die. He said he had never hurt anyone with a weapon before.

29. Mr. Stewart said he had no memory of running at the police officers, that all he recalled was the pain from his stomach wound.

30. At one point, Mr. Stewart expressed the view that everyone-the medical personnel in both countries, the police and the victim-were all in it together against him, that they had poisoned him, that Mr. A. wanted to kill him, that Mr. A’s short time in hospital (in Buffalo) showed it was all a lie. He conceded, “I know it looks fucked up.”

Mr. Stewart’s Psychological Assessment (St. Joseph’s)

31. During his three weeks for assessment at St. Joseph’s Hospital, Mr. Stewart was examined by a range of staff members including doctors, nursing staff and a psychologist. His overall intellectual functioning was borderline at the eighth percentile. Verbal reasoning, nonverbal reasoning, working memory and processing speed all tested at low-average, ranging from the sixteenth to twelfth percentile on the Wechsler Adult Intelligence Scale. He did, however, have strong reading and language skills, at the sixty-third percentile, indeed scoring at a Grade Twelve level despite having only a Grade Ten education. As a consequence of his strong reading and language skills but very poor, “attention, memory and visuospatial skills,” he may be perceived as higher-functioning than he actually is.

32. My review of the report of the senior psychologist at St. Joseph’s, Dr. Mini Mamak, the criticisms thereof by Dr. Gojer and the testimony of Dr. Chaimowitz, leads me to conclude that there is some risk with Mr. Stewart of minimization of responsibility, possible symptom exaggeration or feigning, but that that concern is not necessarily determinative or all-encompassing in terms of the areas of assessment conducted at St. Joseph’s.

33. With respect to substance use disorders, Dr. Mamak’s report interestingly noted the conclusions to be valid (i.e. no concern of feigning here) and concluded that, “he had a high probability of having a substance use disorder”, but, “did not suggest that Mr. Stewart had a high probability of prescription drug abuse” (responding directly to the suggestion in Mr. Stewart’s antecedent records of supposed methylphenidate abuse). I note that the only drugs of particular note that seem to be relevant in the days leading up to the attacks on Mr. A. and Constable Kim were prescription drugs, in particular Concerta.

Dr. Chaimowitz’s/St. Joseph’s Conclusions About Mr. Stewart and NCR

34. Dr. Chaimowitz’s assessment of criminal responsibility was very balanced, coming to the conclusion that Mr. Stewart was not entitled to a “not criminally responsible” finding. In his analysis he opined:
    1. Schizophrenia has been among Mr. Stewart’s diagnoses over the years, but “mostly” his displays of psychotic symptoms were associated to substance abuse. Schizophrenia is a, “less likely explanation for his psychiatric presentations,” but he, “may at some point meet the criteria for schizophrenia,” which, “we don’t entirely rule out…and it is possible that this diagnosis may eventually be attached to him.”
    2. Mr. Stewart has “regularly” abused methylphenidate, which can lead to paranoia and psychotic symptoms, which can in turn, “mimic symptoms observed in major mental disorders”.
    3. If Mr. Stewart had ingested the full prescription of 54 mg Concerta he had received a few days before the attacks,

the symptoms that he presented with [at the hospital] could very well be due to the often misuse of Concerta. So that would explain his, his psychotic disorder….So the question is, you know, did he, did he, did he use that, you know, and did he abuse that particular medication. And I, I, I,I don’t actually know. I think it—my, my, my opinion would be the Concerta would have been the overwhelming reason for his presentation

4. There are alternative explanations for Mr. Stewart’s attacks including that he was having a psychotic episode as part of his schizophrenia, although Dr. Chaimowitz considered that, “less likely—a lot less likely.” It is also possible that Mr. Stewart was using substances, but his behaviour was driven primarily by his schizophrenia rather than drug abuse; this was, “not our preferred explanation although it is, it is definitely possible.”
5. Mr. Stewart meets the criteria for:
    i. (Poly) Substance Abuse Disorder based on his long history of substance abuse, both street and prescription drugs, despite their significant impacts on various aspects of his life.
    ii. Substance-Induced Psychotic Disorder, related to the foregoing diagnosis, insofar as his substance abuse has led to psychotic manifestations including paranoia, hallucinations and aggression after drug use. He reported having taken his anti-psychotic medication (asenapine) only intermittently in the months before the attacks, his self-reporting of paranoia and hallucinations was inconsistent and he had manifested no documented signs of psychosis when he renewed his Concerta and asenapine prescriptions as an outpatient at the hospital four days before the attacks. The psychosis manifested itself in the attacks but was dissipated two days later when he was examined in the Buffalo hospital. This self-clearing of psychotic symptoms without any intervening treatment supported a conclusion of substance-induced psychosis.
    iii. There was no independent confirmation of Mr. Stewart having been seen to respond to the auditory hallucinations he reports suffering from, “throughout his contacts with the mental health care system,” including his time at St. Joseph’s. This could mean exaggeration or simply that he was not responding externally to those stimuli, but, “psychological testing suggests an element of exaggeration and malingering”, factors that undermine a major mental illness as the cause of his behaviour.
6. With respect to the two-part test for a person to be “not criminally responsible” under [section 16(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html):
    i. Mr. Stewart was psychotic at the time of the attacks, experiencing paranoia and auditory hallucinations that left him feeling at risk and needing to defend himself by attacking Mr. A. and Constable Kim. However, he would have appreciated the nature and quality of what he was doing.
    ii. His psychosis was sufficiently powerful that he felt he had to act to protect himself and/or the children, so he would not have appreciated his actions were legally or morally wrong in relation to the two offences on which he was arraigned.
    iii. However, that psychosis being due to wilful, self-induced substance abuse (Concerta, perhaps other drugs), the finding of “not criminally responsible” is not available to him.

35. Dr. Chaimowitz agreed with defence counsel that during his time at St. Joseph’s Mr. Stewart demonstrated some of the negative manifestations of schizophrenia. He also testified that Mr. Stewart may have schizophrenia, that, “it’s still in the mix.”

Mr. Stewart’s Involvement With Dr. Gojer

36. It goes without saying that Dr. Gojer’s involvement with Mr. Stewart was not the same as St. Joseph’s involvement with him. Mr. Stewart was in-residence at St. Joseph’s for about three weeks and was subject to full-time monitoring and observation in that environment by the full range of staff. There was also a full psychological work-up at St. Joseph’s as outlined briefly above. Dr. Gojer did not have the luxury of comparable resources, but he did have access to the records. In terms of actual face-to-face time with Mr. Stewart, it does not seem to me that there is a material difference between how much time Dr. Chaimowitz spent with Mr. Stewart and how much time Dr. Gojer did. Dr. Gojer felt he was at some disadvantage interacting with Mr. Stewart by video rather than in-person, but Dr. Chaimowitz downplayed any such disadvantage on Dr. Gojer’s part.

37. I do not propose to do a chapter and verse comparison between the history provided by Mr. Stewart to St. Joseph’s and the history provided by him to Dr. Gojer. Suffice to say that the histories were not identical insofar as they diverged on some points and one history might include something left out from the other or vice-versa. At the same time, there was significant overlap. The record shows that Dr. Gojer challenged Mr. Stewart when there were divergences from the history as set out to St. Joseph’s. Ultimately, the most important take-away from Mr. Stewart’s recitations of what happened, as I note repeatedly in these reasons, is that he is not a particularly reliable narrator. This could be rooted in his nature, insofar as individual capacity for recall varies widely from person to person, in his cognitive abilities, which are overall weak to very weak, in his mental health status, in his drug use or even in an attempt to feign or malinger, for the last of which there is, at a minimum, some support in the material before me.

38. Mr. Stewart told Dr. Gojer more detail about his last prescription drug involvement before the attacks than he had mentioned to St. Joseph’s. He said that when he went to Douglas Memorial Hospital a few days before the attacks, he was given a prescription and sent to a specific pharmacy. At the pharmacy they were able to give him the full stimulant prescription (Concerta), but were short of the anti-psychotic and were only able to give him three days’ supply and that he would have to return later for the balance. He said that he would have gone elsewhere had he known that in advance, but he had already used the prescription at the first pharmacy before finding that out. He said the prescription bottle would show just how few of the anti-psychotics he was given. He said they ran out the day before the attacks. He had been taking more of both the anti-psychotics and Concerta than prescribed because he was experiencing hallucinations and paranoia. Although he had taken excessive Concerta in the past, he said he had never hallucinated as a result.

39. Mr. Stewart told Dr. Gojer that his challenge to the paramedic at the nursing station in Douglas Memorial was because the paramedic said Mr. Stewart had been drinking rubbing alcohol, which Mr. Stewart denied saying.

40. Mr. Stewart’s description of how he came to attack Mr. A. was generally consistent with his description of those events to St. Joseph’s, including that the man was armed, was a threat to children and to him and that there were people speaking in tongues around Mr. Stewart. He added that he felt the police officers responded so fast that they must have been part of the group trying to kill him.

41. Mr. Stewart told Dr. Gojer that someone injected something in his IV bag in the Buffalo hospital in an attempt to kill him. He added that the nurse who gave him a line of cocaine in the Buffalo hospital also did a line herself and that she also gave him a bottle of Oxycontins, which he spilled accidentally. He had no recollection of seeing Dr. Ruggieri, the psychiatrist, in Buffalo. When challenged by Dr. Gojer that he must have been confused about the line of cocaine and the injection into his IV, Mr. Stewart was insistent that those events happened. Dr. Gojer considered these “memories” to be likely delusional.

42. Mr. Stewart’s description to Dr. Gojer of when he was sent to St. Joseph’s was off by a month, but it was correct in terms of duration. I point this out only because it is an instance of inaccuracy that could provide no conceivable benefit to Mr. Stewart. This does not mean that Mr. Stewart was not malingering on other occasions—that is a possibility—but only that there may be a variety of explanations for his various inaccuracies, internal inconsistencies and inconsistencies with other sources.

43. Dr. Gojer said that Mr. Stewart was cooperative but, “his thought processes indicated ongoing general paranoia, indistinct auditory hallucinations and a general mistrust,” to the extent that he was reluctant even to share his mother’s phone number with Dr. Gojer.

Dr. Gojer’s Conclusions About Mr. Stewart and NCR

44. Dr. Gojer tracked Mr. Stewart’s history from a series of childhood conduct disturbances, perhaps rooted in attention-deficit/hyperactivity disorder and trauma (Mr. Stewart recounted being subject to childhood physical abuse at his father’s hands). He began to abuse drugs. Dr. Gojer viewed his conduct disorder evolving into antisocial personality disorder, with continued drug abuse, eventually displaying psychotic symptoms and ultimately culminating in the diagnosis of schizophrenia in 2012 (while serving a sentence at St. Lawrence Valley Correctional and Treatment Centre). At that point he was unresponsive to most anti-psychotic drugs. His diagnoses over a series of brief hospital admissions since then (as set out in the chart above) have, “ranged from Schizophrenia to Substance Use Psychosis and no major mental illness. A diagnosis of antisocial personality disorder has been a consistent diagnosis along with substance use disorder.”

45. Dr. Gojer recognized that there was a basis for concern about malingering on Mr. Stewart’s part given the variations in his recitations of events, but concluded that Mr. Stewart was not malingering insofar as his descriptions were “consistent with the reports about the allegations from collateral sources.” I take this to refer only to the events at Douglas Memorial Hospital and thereabouts, insofar as there are antecedent details (e.g. family mental health history) that are not supported by collateral sources. Dr. Gojer, in both his report and his testimony, stressed that the comments about malingering in the St. Joseph’s report were not definitive.

46. Dr. Gojer said that the challenge of diagnosing Mr. Stewart, including, of course the central question of his state at the time of the attacks, is complicated by the variable nature of schizophrenia and how it manifests itself in different patients, as well as by the difficulty of distinguishing schizophrenia from substance-induced psychotic disorder and that ongoing treatment with anti-psychotic drugs and prescribing drugs like Concerta can further “confound the diagnosis”.

47. Dr. Gojer also felt that diagnosing Mr. Stewart would have been simplified if he had been taken off all drugs for the time that he was under observation at St. Joseph’s. (Dr. Chaimowitz was of the view that a change of medication was not part of St. Joseph’s remit when they were acting solely as an assessor, as opposed to treating Mr. Stewart. Subject to that qualification, I took him as largely sharing Dr. Gojer’s concerns about some of Mr. Stewart’s medications).

48. Dr. Gojer concluded:

    1. Regardless of its origin, at the time of the attacks Mr. Stewart was suffering from a psychotic disorder, which qualifies as a major mental illness.
    2. Mr. Stewart would have appreciated the nature and consequences of his acts.
    3. Mr. Stewart would know that stabbing people is wrong but his delusions deprived him of choice insofar as he felt he had to defend himself. Rational choice was not likely open to him.
    4. Mr. Stewart suffers from schizophrenia, a major mental illness or psychotic illness, causing a person in psychosis to lose touch with reality. Schizophrenia is composed of positive symptoms, such as, “delusions, hallucinations, thought disorder and bizarre behaviour,” as well as negative symptoms, which include lack of affect, lack of pleasure out of life, withdrawal, apathy, thought difficulties, lack of motivation and often isolation. Positive symptoms are most evident in early stages of schizophrenia and over time the negative symptoms take on a more prominent role, but subject to flareups which could be caused by physical illness, stress, drugs, etc.
    5. Drug-induced psychosis can be rooted in the use of many drugs, including cannabis and methylphenidate, the latter being one of the prescription drugs Mr. Stewart had a prescription for, to address his attention-deficit/hyperactivity disorder. Stimulants are more likely to cause drug-induced psychosis than sedatives, although withdrawal from sedatives could trigger psychosis.
    6. There can be a relationship between substance-induced psychosis and schizophrenia whereby a drug user’s initial psychotic episode might be drug-induced and classified as substance-use psychosis, with subsequent episodes lasting longer and longer becoming a diagnosis of “psychosis not otherwise specified” and eventually ending up with a diagnosis of schizophrenia.
    7. Mr. Stewart’s treatment at St. Lawrence Valley Correctional and Treatment Centre in 2012 was of great significance to Dr. Gojer. It was by far his longest period of evaluation and treatment ever, in a controlled setting where drug access would be less likely and Mr. Stewart demonstrated positive and negative symptoms of schizophrenia, with negative symptoms of schizophrenia being virtually impossible to fake, in a hospital setting especially, over any long period of time. This, to Dr. Gojer, was a gold-standard, long-term, multidisciplinary evaluation of Mr. Stewart by an institution with which Dr. Gojer was intimately familiar.
    8. Subsequent shorter admissions, Dr. Gojer said, tended to focus on substance-abuse causes, but Dr. Gojer testified that,

the diagnosis of schizophrenia seems to have gone by the wayside. But schizophrenia never really goes away. It’s a diagnosis that’s been made. The problem exists. The problem can be exacerbated by the use of the drugs. And if you see this exacerbation, you’re going to make a diagnosis of drug abuse psychosis, but you’re going to miss the forest but for the trees. And the forest here is the background noise, the schizophrenia that was formerly diagnosed with both positive and negative symptoms. The trees are the episodes of psychosis that you see, is nothing but a worsening of a pre-existing schizophrenic illness in an individual who’s highly susceptible in the psychotic effects of these drugs.

9. Dr. Gojer also noted that the medication that Mr. Stewart was on: a high dose of an anti-psychotic drug for several months while in custody and while at St. Joseph’s, “a dose used to treat very severe schizophrenia,” which would not be necessary for a substance-induced psychosis, which is inherently transitory.
10. “To me, this diagnosis goes beyond just a diagnosis of intoxication psychosis. It has all the features of a drug-related worsening of a pre-existing illness, schizophrenia.” One has to be careful when diagnosing intoxication-psychosis because Mr. Stewart has heard voices at various times in the past.
11. It was very concerning that Mr. Stewart, with antecedent diagnoses of schizophrenia at times continued to be prescribed Concerta, which he considered to be contra-indicated because it contributes to/causes psychosis, advice that showed in the observations of a number of other doctors who had treated Mr. Stewart in the past. Dr. Gojer testified that methylphenidate could “unmask” underlying schizophrenia, whether that was taken as a prescribed, therapeutic dose or as a drug of abuse. One could get high from a single dose of Concerta, quite apart from abusing it.

Determining Mr. Stewart’s Criminal Responsibility

49. In determining the question of Mr. Stewart being either criminally responsible or not for his attacks on Mr. A. and Constable Kim I was greatly aided by the submissions of two very capable counsel and the insights of two very capable psychiatrists. The benefit of their skill and preparedness, however, was rather attenuated by the fact that, while they all conducted themselves thoroughly and impeccably, they just couldn’t agree on the central issue and each gave compelling reasons for their conclusions or positions. As I told the parties when I announced my finding orally, that finding was a close call.

50. I do not propose to lay out the backgrounds of either psychiatrist. Their qualifications were never in question and the breadth and depth of their professional experience and their general oeuvre reflected the highest levels of achievement in their field. Their evidence was given in a dispassionate and detached manner. Their mutual respect was always evident. Dr. Gojer was clearly comfortable in relying on testing and observations from St. Joseph’s. When he perceived Dr. Chaimowitz to have had a particular advantage, such as contact that was face to face and more proximate to the events compared to contact by video much later, he readily conceded the advantage and when he disagreed with a particular approach, observation or conclusion, it was always respectful and he explained his reasons. Ultimately, there was really only one crucial disagreement between the two doctors, namely whether or not Mr. Stewart’s psychosis was strictly drug-induced or not, framed this way by Dr. Gojer:

…Dr. Chaimowitz and myself, we both arrived at the same conclusion, that this person, at the time, had a psychosis. And he would not have known that what he was doing was wrong. The only subtle issue in this case is what is the mental disorder. Whether you call it a toxic psychosis or related to simple intoxication, or it is a long-standing illness with ups and downs, not one but many episodes of psychosis, and does he have an ongoing illness. And that is the question for the court.

51. The test I must apply as set out in the Criminal Code and the decided cases is as follows:

    1. Every person is presumed not to suffer from a mental disorder freeing them from criminal responsibility unless the opposite is proved on a balance of probabilities: s.16(2).
    2. “Mental disorder” is defined in section 2 of the Criminal Code as, “a disease of the mind.”
    3. 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”: R. v. Cooper, 1979 CanLII 63 (SCC), [1980] 1 S.C.R. 1149, 1159.
    4. In the present case, where Mr. Stewart asserts that he was not criminally responsible, the burden of proof is on him: s. 16(3).
    5. A person is not criminally responsible for an act or omission if the act or omission occurred: i. While the person was suffering from a mental disorder that: 1. Made the person unable to appreciate the nature and quality of the act or omission; or 2. Made the person unable to know the act or omission was wrong.
    6. The focus must always be on Mr. Stewart’s condition at the time of the attacks, although conclusions about his condition at that time may take into account observations and utterances made before and after.
    7. This is a legal determination within a medical context. The determination is the court’s determination, not the doctors’ decision, albeit with the enormous benefit of the doctors’ expertise and insight.

52. In the present case, as I have noted, there was more agreement than disagreement:

    1. It was agreed that Mr. Stewart was suffering from a psychosis when he committed the attacks on Mr. A. and Constable Kim.
    2. It was agreed that psychosis is a “disease of the mind”/ “mental disorder”.
    3. It was agreed that Mr. Stewart was capable of appreciating the nature and quality of his acts.
    4. It was agreed that Mr. Stewart was incapable of appreciating the wrongfulness of the acts because his delusions made him feel that he was defending himself and others.
    5. The disagreement was over the nature of Mr. Stewart’s psychosis, in particular whether or not, on a balance of probabilities, his psychosis was the product of his voluntary ingestion of drugs. If it was the product of voluntary ingestion of drugs, the NCR finding would not be available to him: R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575.

53. Bouchard-Lebrun considered the issue of, “whether a toxic psychosis caused exclusively by a single episode of intoxication constitutes a “mental disorder.” The Supreme Court sets the tone fairly early in its analysis by calling for caution to preserve the desired balance between public protection from people, “whose mental state is inherently dangerous” and imposing criminal liability only on those who are, “responsible for the state they were in at the time of the offence”. The Court, “cannot accept the recent decisions, or opinions that seem to suggest that toxic psychosis is always a disease of the mind within the meaning of the Criminal Code.” (at para. 68).

54. A temporary psychosis arising from intoxication will typically not be seen to be a disease of the mind, but the rule is not absolute. Every case must be decided on its own circumstances and the approach taken by the trial court should follow the “holistic” approach advocated in the Supreme Court in R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, using the following analytical tools:

    1. “Internal cause”: if a normal person (i.e. one not suffering from a disease of the mind) subjected to the same triggering event would likely have reacted to it as the defendant did, then the court would be entitled to find that the cause was external (including a psychological blow, drug or alcohol consumption, etc.), and deny access to s. 16 of the Criminal Code. “The reverse also holds true.” (at paragraph 71). An external cause such as those listed would not be a, “disease of the mind.”
    2. “Continuing danger”: if, “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.” (at paragraph 73). Assessing danger will necessitate a review of the defendant’s psychiatric history and the likelihood of a recurrence of the trigger. Recurrence must be related to the trigger arising independently of the defendant’s choice; risk of recurrence arising from the defendant’s voluntary choice does not open the gate to the “continuing danger” path.
    3. The Supreme Court considered the concept of voluntary choice in the context of drug addiction as opposed to mere drug consumption as follows:

Although I will not adopt a definitive position on this question, I might have concluded otherwise if the appellant had a dependency on drugs that affected his ability to stop using them voluntarily. The likelihood of recurring danger might then be greater. (at paragraph 83)

4. Courts conducting this analysis must emphasize examination of the particular facts of their particular case rather than seeking guidance from pre-existing cases.

55. The Bouchard-Lebrun court disposed of the appellant’s argument that his one-off voluntary consumption of drugs that would likely have had the same impact on every user entitled him to be found not criminally responsible, with the following language. I note that the italicization below is the Supreme Court’s, not mine:

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. (at paragraph 85)

And the Court presaged the issues in this case as follows:

…it is plausible to expect that the courts will have to perform this legal characterization exercise in circumstances much more difficult than the ones in the case at bar. One example would be a case in which the mental condition of the accused indicates an underlying mental disorder but the evidence also shows that the toxic psychosis was triggered by the consumption of drugs of a nature and in a quantity that could have produced the same condition in a normal person. In such circumstances, the courts should be especially meticulous in applying the “more holistic approach” from Stone. (at paragraph 88)

56. One obvious question in this case is the issue of malingering. I have mentioned this earlier. It was a concern raised by Dr. Chaimowitz in light of Dr. Mamak’s comments and it understandably arises given the internal inconsistences in some of Mr. Stewart’s recitations as well as either a lack of external confirmation of some points or indeed some external contradiction. However, as noted by Dr. Gojer, Dr. Mamak’s findings were not definitive and much of the problem may be rooted in the fact that Mr. Stewart suffers from very significant cognitive problems. Those cognitive problems could be an alternative explanation for many of the inconsistencies. Inconsistency does not necessarily denote dishonesty or malingering. Dr. Chaimowitz fairly recognized that and also that one should not draw too strong a conclusion from Dr. Mamak’s screening tests. Dr. Gojer’s review and dissection of Dr. Mamak’s report insofar as it related to the issue of malingering struck me as thorough. Ultimately, I remain alive to the risk of malingering or feigning on Mr. Stewart’s part but do not find that that risk is great enough to affect the ultimate result.

57. I have said earlier that my finding that Mr. Stewart was not criminally responsible for these attacks was a close call. The closeness of that call reflects the singular split between two supremely qualified experts, the existence of a factual underpinning that offers justification for their divergent conclusions, the breadth of the mental-health history relating to Mr. Stewart including a very similar-seeming hospital admission in Mr. Stewart’s past, the varying weight that can be given to various factors and the governing case law.

58. One of the central details that must be considered in analysing whether or not Mr. Stewart has made out his claim to having not been criminally responsible is necessarily the question of his drug consumption leading up to the attacks. Dr. Chaimowitz says that his most likely, balance of probabilities conclusion on all of the material is that Mr. Stewart’s psychosis was brought about by a repetition of his Concerta abuse, as documented historically in the past. It bears noting that, as underlined earlier, Dr. Chaimowitz fairly prefaces that conclusion with the word “if”, i.e. if Mr. Stewart abused the Concerta prescribed to him days before, then….. One material factor is the degree of confidence one can have about that “if”. We know that Mr. Stewart was given a prescription for Concerta, for a two-week dose of 54 mg tablets. We know that he filled the prescription. We know that he told Dr. Ruggieri in Buffalo that he was high at the time of the attacks. However, we also know that that utterance was made by a person who subsequently disclosed his belief that the nursing staff around that time gave him cocaine to snort, gave him a bottle of Oxycontin and tried to poison his IV bag. We do not know how much Concerta Mr. Stewart supposedly ingested (given Dr. Gojer’s evidence, the amount may not be determinative). Dr. Chaimowitz agreed that, “we don’t know how much he snorted…we have some guesses but we don’t know for sure.” How confident we can be that Mr. Stewart was indeed “high” at the time of the attacks is unclear (as opposed to him behaving in a psychotic manner, which is obvious and upon which there is no disagreement other than the root cause of the psychosis).

59. It seems to me that there are a few possible explanations for Mr. Stewart’s assertion to Dr. Ruggieri in Buffalo that he was “high” at the time of the attacks, for example:

    1. It was true.
    2. Mr. Stewart was delusional at the time (he of the nurses trafficking cocaine and Oxycontin to him in hospital, perhaps to set him up).
    3. It was a fabrication and Mr. Stewart felt that he might minimize his legal exposure if he claimed to have been under the influence when he committed the attacks.

All of these possibilities are plausible in all the circumstances of this case.[^5]

60. I note that Dr. Chaimowitz also said that, “people with substance abuse, ultimately some of them go to have schizophrenia not because of their substance use, but these conditions overlap to a large degree. The co-morbidity, so having both diagnoses with people with schizophrenia and substance use is very, very high…”

Conclusion

61. A variety of factors, either individual or in combination, led me to conclude that Mr. Stewart has made out his s. 16 argument on a balance of probabilities, i.e. that he satisfies the test for being “not criminally responsible” as established by s. 16 of the Criminal Code and developed in the case law over the years. Those factors are as follows.

The Drug Abuse/Psychotic Behaviour Linkage

62. I am less confident than the Crown or Dr. Chaimowitz about the force of the evidence of Mr. Stewart’s consumption of controlled substances in the period leading up to the attacks and/or the role any such consumption played in bringing about his psychotic state when he attacked Mr. A. and Constable Kim. There are known facts, such as how much Concerta he was prescribed only a few days before the attacks, but there are also many facts that are unknown or vague. For example: how much Concerta did he consume, when did he consume it relative to the attacks, how much if any of the asenapine did he consume, insofar as the asenapine might have attenuated the impact of the Concerta somewhat? There is also the question of whether or not Mr. Stewart was “high” at the time of the attacks as he told Dr. Ruggieri in Buffalo? I have discussed the existence of various possible explanations for that utterance earlier and among the three explanations outlined (at least three) no one explanation has a compelling claim to legitimacy over the others.

63. The attribution of Mr. Stewart’s psychosis to voluntary drug consumption is also to some extent rooted in Dr. Chaimowitz’s observation about how quickly it passed. However, as noted above, if his belief about the cocaine/Oxycontin/poisoned IV incidents in Buffalo, which one can almost surely call delusions, were held by him while in Buffalo, as opposed to being delusions that arose later about his time in Buffalo, the psychosis would have been ongoing and the evidence suggests that an ongoing psychosis is less likely to be drug-related than a shorter one.

64. There are obviously other building blocks upon which Dr. Chaimowitz’s conclusion is built, which are legitimate underpinnings to his conclusion. There can be no doubt at all but that Mr. Stewart has been an abuser of a wide variety of street and prescription drugs for a very long time, more than half his time on the planet. Many of his hospital intakes have involved or disclosed antecedent drug abuse and have led to diagnoses of substance-induced psychosis and other substance-related disorders. One of them involves a significant abuse of Concerta leading to homicidal ideation, a scenario that, given that Mr. Stewart was prescribed Concerta, may have abused it and escalated to homicidal action would justifiably leap to the fore in any analysis of what happened in Fort Erie, the difference being that the consumption, quantity and motivation seem much more clear in that 2015 incident (and in other incidents in the medical history), than in the present one. Abuse of Concerta (among other drugs) is a recurring theme in the medical history. These cannot be ignored and it was fair for Dr. Chaimowitz to place weight upon them.

65. However, at the end of the day, I remain less confident about the strength of the evidence about the link, if any, between Mr. Stewart’s drug consumption proximate to the attacks than the Crown or Dr. Chaimowitz appear to be. In saying this, I recognize that the onus on a section 16 argument is actually on Mr. Stewart, but the balance of probabilities standard is not the most exacting standard of proof in the world.

The Forest and the Trees

66. Both doctors clearly recognized that Mr. Stewart had a long, intertwined history of substance abuse challenges and mental health challenges, starting as a young offender. They diverged in relation to how that history drove the conclusion on the ultimate question, i.e. whether or not Mr. Stewart’s psychosis on 18 May, 2018 could underpin a finding of not criminally responsible. Although I have explained above that I have concerns about the strength of the evidence in relation to Mr. Stewart’s drug consumption—timing, quantity, effect, etc.—at the relevant time, I can understand Dr. Chaimowitz’s analysis. He is, in effect following the guidance of the Supreme Court in cases such as Bouchard-Lebrun to the effect that if an external event would cause a “normal” person to act as the mentally ill defendant did, then that is not a disease of the mind under s. 16 of the Code. Dr. Chaimowitz saw the drug abuse as the cause of the psychosis, not any underlying mental illness and he gave cogent reasons for that conclusion. At the same time, there is merit to Dr. Gojer’s caution about not losing sight of the forest for the trees, i.e. of the underlying, long-term mental health issues including schizophrenia, for his sometimes drug-infused manifestations or psychotic episodes.

67. Quite apart from my concerns about the strength of the evidence on Mr. Stewart’s drug consumption, I am inclined to think that, on the facts of this case, the thinking in Bouchard-Lebrun compels more of a focus on Mr. Stewart’s decade-long history of serious mental health and addiction problems than perhaps Dr. Chaimowitz gave it insofar as he perceived a clearer differentiation between drug-induced psychosis and Mr. Stewart’s overall mental health than I do (or than Dr. Gojer did). Both Mr. Stewart’s mental health challenges and his substance abuse challenges are broad and deep. While the analysis of every case must be specific to itself, I am of the view that, in the absence of a very clear factual underpinning, it would likely be extremely challenging to disentangle his mental health problems from his substance abuse problems when trying to ascertain causation.

68. Mr. Stewart has been seriously mentally ill at the very least since his time in St. Lawrence Valley. Three different doctors have returned a diagnosis of schizophrenia in relation to him. While an illness such as schizophrenia might “wax and wane” in Dr. Gojer’s words, it is not likely entirely to exit stage left and make way for another actor such as substance abuse to monopolize the stage. Rather (again in the absence of truly compelling evidence of substance abuse being the sole cause of a psychotic outbreak which we do not have here), I am unable to conclude that his behaviour on 18 May, 2018 was purely or predominately the result of substance abuse. It is much more likely to be the tragic outcome of a decade (or longer) of crippling mental health challenges and aggravating substance abuse patterns on Mr. Stewart’s part, even if he was abusing Concerta at the time. While there may be some future event in his life where the two causes can be seen separately, insofar as the events of 18 May, 2018 are concerned I am of the view that his drug dependence and his underlying mental health issues were effectively fused together and cannot realistically be separated. I am satisfied that on the record before me Mr. Stewart has made out his claim to the s. 16 defence on a balance of probabilities and that is so even if his “voluntary” drug abuse played some role in his psychosis that day.

69. Put in the language of the “holistic reasoning” set out by the Supreme Court of Canada in Stone and reinforced in Bouchard-Lebrun, on the “internal cause: issue, to the extent that there is evidence of Mr. Stewart having abused drugs in the period proximate to the assaults, I think it is not likely that a “normal” person engaging in the same drug abuse would have reacted in the way that Mr. Stewart did on 18 May, 2018. When it comes to the issue of “continuing danger”, I think it is inescapable in light of Mr. Stewart’s mental health treatment history that there is a strong danger of such an event recurring. Mr. Stewart is a clear, present and ongoing danger and, in the absence of profound and rigorous long-term treatment in an environment appropriate to the depth of his challenges and the nature of the harm he is capable of, will remain so.

The Voluntariness of Consumption Issue

70. Of course, the Supreme Court in Bouchard-Lebrun noted a concern about voluntary consumption of drugs and recurring risk. At the same time, it left open the issue of what “voluntary” meant in the context of drug dependence. On the record before me, there can be no doubt that Mr. Stewart is heavily addicted to controlled substances. I would say that the issue of “choice” in the context of addiction is not a black-and-white issue in the sense that society is entitled to expect defendants to do as much as they can to deal with their addictions in order to minimize the danger they pose to other citizens but at the same time society must recognize the challenges inherent in dealing with addictions, which are often rooted in trauma or other causes that are not the “fault” of the offender. However, Mr. Stewart’s substance abuse is very deeply rooted. I also note that in this particular case, the drug that is most likely involved in the events of 18 May, 2018 was not only a prescribed drug (abused or not), but it was a prescribed drug that both experts at this trial (and at least one prior clinician) said Mr. Stewart should not have been prescribed because of its potential for abuse and because of his mental health diagnosis. Accordingly, the drug he most likely abused in the Crown’s theory (and the drug most obvious on the facts) is not only one he appears addicted to, it is one that a medical practitioner prescribed for him and effectively “told” him to take. On these facts, I would not consider Mr. Stewart to be disqualified from a s. 16 defence by virtue of his “voluntary” ingestion of drugs.

71. It is for the foregoing reasons that I found that Mr. Stewart was not criminally responsible for his actions in relation to Mr. A. and Constable Kim at the Douglas Memorial Hospital in Fort Erie on 18 May, 2018.

Released: 14 October, 2021

[^1]: Quotations are from the agreed statement of facts, not necessarily the actual words of the people involved.

[^2]: Mr. Stewart had been prescribed a two-week, renewal, supply of 54mg Concerta four days before the attacks on Mr. A. and Constable Kim. He was also prescribed asenapine, an anti-psychotic.

[^3]: The prescription drug names methylphenidate, Concerta and Ritalin appeared frequently in the materials and testimony in Mr. Stewart’s hearing. For any reader who might, hypothetically, have spent most of Grade 9 science realizing that enrolling in Grade 10 science would not be a productive use of a credit, they are all versions of the same thing. Methylphenidate is a stimulant used in the treatment of attention-deficit/hyperactivity disorder. Ritalin is a brand-name version. Concerta is an extended-release, brand-name version.

[^4]: I am also alive to the fact that Mr. Stewart may not be the only unreliable historian. His mother and aunt’s recollection may very well be correct, but it is not unheard of for people, out of a sense of embarrassment, to deny the existence of mental health issues within their families because of the stigma that, lamentably, continues to accompany mental illness unlike physical ailments.

[^5]: I note that one of the reasons Dr. Chaimowitz gave for concluding that Mr. Stewart’s psychosis was drug-induced was the fact that it passed so quickly, in particular that it was gone within days, by the time Dr. Ruggieri saw him. However, if Mr. Stewart had delusional beliefs while in Buffalo that: (a) a nurse had given him a line of cocaine and consumed another line herself; (b) a nurse had given him a bottle of Oxycontins, which he spilled on his bed and then had to lie about to another nurse to protect the first nurse; (c) someone at the Erie County Medical Center had poisoned his IV, then his psychosis was not that short-lived. The situation is further complicated by the fact that it appears only the cocaine allegation/delusion was disclosed to Dr. Chaimowitz, with the other two being disclosed later to Dr. Gojer, which re-opens the reliability can of worms.