ONTARIO COURT OF JUSTICE

CITATION: R. v. Tubongbanua, 2022 ONCJ 306

DATE: 2022 06 24

COURT FILE No.: Toronto 4817-21-75000395

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOHN MANUAL TUBONGBANUA

Before Justice H. Borenstein

Reasons for Judgment delivered on June 24, 2022

D. Hogan............................................................................................... counsel for the Crown

F. Burgoyne................................ counsel for the accused John Manual Tubongbanua

BORENSTEIN, J.:

[1] This is my ruling on whether John Manual Tubongbanua should be found not criminally responsible.

[2] He admits pushing a stranger onto the subway track thirty seconds before a train arrived. I have seen the footage of the incident. It is every rider’s nightmare. Fortunately, somehow, the victim had the presence of mind to climb on to the middle platform, missing the electrified rail, and the arriving train did not hit him. Witnesses heard Tubongbanua yelling at the victim, who was a stranger to him, calling him a fraud. One witness asked him why he did this, and he replied that he heard voices in his head. He then apologized to the victim. The apology leads to an inference that he knew his conduct was wrong.

[3] Upon his arrest, Tubongbanua was assessed at the Brief Assessment Unit at the Toronto South Detention Centre. This Court then ordered an assessment for criminal responsibility under s. 16 of the Criminal Code.

[4] Mr. Tubongbanua was referred to CAMH for that assessment. Doctors Chaterjee and Berube reviewed the Brief Assessment material and conducted their own assessment. They prepared a thorough report which was helpful to the Court.

[5] The issue before me is whether Mr. Tubongbanua should be found not criminally responsible (“NCR”) pursuant to s. 16 of the Criminal Code. The Crown submits he should be found NCR.

[6] The un-contradicted evidence of the doctors from CAMH is that Tubongbanua, at the material time, was in a state of substance induced psychotic disorder which rendered him unable to engage in rational decision making. This psychosis was self induced by taking crystal methamphetamine which he has taken many times, often resulting in psychosis.

[7] The Crown submits Tubongbanua should be found NCR. The Defence does not agree but does not oppose. Both agree that, if Mr. Tubongbanua is found NCR, he should be referred to the Review Board for it to determine when and under what conditions he should be released.

[8] Mr. Tubongbanua is 42 years old. He has a long history of substance abuse, specifically marijuana, cocaine and, most significantly, crystal methamphetamine. He has poly-substance abuse disorder, schizophrenia, anti-social personality disorder, psychotic disorder and borderline personality traits. He has a history of violent and aggressive behaviour, often while using drugs. He has been treated with anti-psychotic and antidepressant medications for the last twenty years. He has a history of hospitalization due to psychotic episodes and it appears at least some of those were precipitated by ingesting drugs.

[9] In 2007, he was subject to a Community Treatment Order. He was receiving monthly anti-psychotic injections prior to this event.

[10] His schizophrenia was stable at the time of this incident.

[11] He has a relatively minor criminal record.

[12] The CAMH report notes contradictions in Tubongbanua’s account of the incident and of his own history. The doctors expressed concern about whether he was malingering or exaggerating his symptoms. Based on those comments, I wanted to hear from the doctors. Both doctors attended Court and Dr. Berube testified. She advised that the doctors took all the expressed concerns into account in making their assessment. They did not rely exclusively on Tubongbanua’s account but looked at witnesses’ statements, the accused history including notes of prior doctors, and other materials.

[13] As a result, doctors Chaterjee and Berube were of the opinion that, at the time, Tubongbanua suffered from an active substance use disorder, a substance-induced psychosis, schizophrenia and antisocial personality disorder. His schizophrenia was stable. However, he presented with psychotic symptoms during the incident. It was their opinion that substance abuse acute intoxication was the main driving factor for his conduct. His anti-social personality disorder, characterized by poor impulse control, aggression and disinhibition, could all have been exacerbated by the acute stimulant intoxication. There is plenty of evidence of these anti-social personality traits exhibited in the past. On balance, it was their opinion that Tubongbanua’s substance induced psychosis was active at the time of the offence and resulted in his inability to engage in rational decision making. The doctors conclude they were of the opinion that, without his acute intoxication, he was unlikely to have behaved that way.

In summary, from a psychiatric perspective, Mr. Tubongbanua presented with substance induced psychotic symptoms and acute substance intoxication that obfuscated his ability to access rational decision making, in spite of having a general understanding of the moral and legal wrongfulness of such behaviour at the material time. R. v. Oommen indicated that the presence of delusions to the extent of impairing the accused’s ability to apply rational understanding of wrongfulness met the test for a defense of not criminally responsible. As outlined above, Mr. Tubongbanua’s symptoms that were present at the material time were most likely the direct result of self-intoxication with drugs, rather than a decompensation of an underlying psychotic illness. Further, Mr. Tubongbanua expressed an awareness that consumption of such drugs had resulted in behavioural dysregulation on several occasions in the past that led to him coming to the attention of authorities and medical personnel.

The question whether a substance-induced psychotic episode of this nature meets the criteria for being a mental disorder as defined by the Criminal Code. and addressed in various case law (i. e. R. v. Bouchard-Lebrun and/or other such cases) for the purpose of a finding of not criminally responsible on account of mental disorder, is of course a matter for the Court to determine.

[14] S. 16(1) of the Code provides:

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

People are presumed not to suffer from a mental disorder until the contrary is proved on a balance of probabilities.

[15] In the 2016 Richmond decision (ONCA 134), the Ontario Court of Appeal reviewed jurisprudence and summarized the real question to be decided on NCR cases. Quoting their earlier decision in Oommen, the Court held (para. 52):

“The crux of the inquiry [under s. 16(1)] is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental disfunctions; [T]hese include … delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.”

[16] And further, at p. 520:

“[T]he real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.”

Not every mental disorder, even those that are delusion-driven, will trigger a s. 16 defence. The concept of “wrong” embodied in s. 16(1) contemplates knowledge that an act was morally – not legally – wrong in the circumstances, according to the ordinary moral standard of reasonable members of the community. In R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68, at p. 113, the Supreme Court, citing its earlier decision in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, explained:

“It is not sufficient to decide that the appellant’s act was a result of his delusion. Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society. [Emphasis in original.]”

[19] It is clear based on the unchallenged opinion evidence of the doctors that, Tubongbanua’s psychotic symptoms “obfuscated his ability to access rational decision making in spite of having a general understanding of the moral and legal wrongfulness of such behaviour at the material time”.

[20] It is also clear that his psychosis would not have occurred had he not ingested crystal methamphetamine which is known to induce psychotic episodes. While crystal methamphetamine is also known to cause psychotic symptoms in people without mental illness, Dr. Berube could not say whether someone without mental illness would have acted similarly. She testified that people with mental disorder like Tubongbanua are more vulnerable to psychotic episodes induced by drugs. Further, on the evidence, he has a Polysubstance abuse disorder. He continues to use crystal methamphetamine and other drugs even though he knows it may result in psychosis. He is more than merely addicted to drugs.

[21] In Bouchard-Lebrun, the court found that his psychosis was caused exclusively by his ingestions of drugs. In other words; on external cause. There was no addiction in that case. Yet the Supreme Court of Canada went on to discuss the holistic approach to assessing NCR from their earlier decision in Stone where the judge looks at whether the cause was internal or external, as well as the continuing danger and policy considerations.

[22] The court stated the issue before them as:

“It is common ground that the appellant was in a psychotic condition that prevented him from distinguishing right from wrong. The main issue is Whether a toxic psychosis caused exclusively by a single episode of intoxication constitutes a "mental disorder" within the meaning of s. 16”

[23] At paragraph 83, the Court held;

“As for the second factor from Stone, there is no evidence indicating that the mental condition of the accused is inherently dangerous in any way. Provided that the appellant abstains from such drugs in the future, which he is capable of doing voluntarily, it would seem that his mental condition poses no threat to public safety. 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.”

[24] In paragraphs 212 and 213 of the majority decision in Stone, when considering whether a condition should be considered a disease of the mind, the Court held:

“As mentioned above, both the majority and dissenting judges of this Court in Rabey, as well as La Forest J. in Parks, recognized that policy considerations are relevant to the determination of whether a claim of automatism is the result of a disease of the mind. One policy factor which is central to the disease of the mind inquiry is the need to ensure public safety. Indeed, as mentioned above, La Forest J. recognized in Parks that the second dominant approach to the disease of the mind question is the continuing danger theory. This theory holds that any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind. In other words, the likelihood of recurrence of violence is a factor to be considered in the disease of the mind inquiry. This approach must be qualified to recognize that while a continuing danger suggests a disease of the mind, a finding of no continuing danger does not preclude a finding of a disease of the mind. See Rabey, supra, at p. 15 (Ont. C.A.), per Martin J.A., and at pp. 533 and 551 (S.C.C.), per Dickson J.; Parks, supra, at p. 907, per La Forest J.”

In my opinion, trial judges should continue to consider the continuing danger theory as a factor in the determination of whether a condition should be classified as a disease of the mind. However, I emphasize that the continuing danger factor should not be viewed as an alternative or mutually exclusive approach to the internal cause factor. Although different, both of these approaches are relevant factors in the disease of the mind inquiry. As such, in any given case, a trial judge may find one, the other or both of these approaches of assistance. To reflect this unified, holistic approach to the disease of the mind question, it is therefore more appropriate to refer to the internal cause factor and the continuing danger factor, rather than the internal cause theory and the continuing danger theory.

[25] A similar point was made by the BCCA in the 2015 decision in Alexander.

[26] As noted at the outset, the Crown submits Tubongbanua should be found not criminally responsible. The Crown submits that Tubongbanua’s psychosis was not exclusively caused by drugs. It was drug use combined with his increased vulnerability to substance induced psychosis caused by his mental disorder. Further, the Crown submits that, in light of Tubongbanua’s psychotic disorder, he is both more vulnerable to substance induced psychotic episodes and less likely to moderate his drug use and therefore, he remains a continuing danger.

[27] As a result, he represents a continuing danger. Relying on Bouchard Lebrun, the Crown submits I must engage in a holistic assessment to the question of NCR and consider the continuing danger in these factors work in tandem.

[28] The defence position, while not consenting, it not opposing a finding of NCR. He submits that, given that others without a mental disorder could experience toxic psychosis, he should not be found NCR but acknowledges that, if it is not exclusively caused by drugs, but a combination of drugs and mental disorder, then I must consider the continuing danger factors in the assessment. In the end, the defence does not consent but does not necessarily oppose an NCR finding on the evidence.

[29] The issue boils down to this:

1. Was Tubongbanua’s psychosis caused solely by the external cause of drug use or did mental disorder play any part; and

2. If mental disorder had any role, and in light of the continuing danger, should Tubongbanua be found NCR

[30] It is clear that his psychosis would not have occurred were it not for his use of crystal methamphetamine.

[31] But there were psychiatric factors which contributed to this situation. His psychiatric disorder made him more likely to use crystal methamphetamine despite knowing he is more likely to experience psychosis. In short, his psychiatric disorder rendered him more vulnerable to both drug use and psychosis. Therefore, his psychosis was not exclusively caused by drug use. And as is obvious, for the same reasons, going forward, he represents a continuing danger to the public.

[32] Turning to the continuing danger component,

[33] In paragraph 74 of Bouchard Lebrun, the Court held:

Although Bastarache J.’s reasons were not explicit in this regard, it stands to reason that danger will be recurring only if it is likely to arise again independently of the exercise of the will of the accused. The recurrence of danger is not a factor linked to voluntary behaviour by the accused. This conclusion is consistent with the idea that the effect of the defence provided for in s. 16 Cr. C. is to exempt from criminal responsibility an accused whose actions are morally involuntary. The purpose of the defence of mental disorder is to ascertain whether the mental condition of the accused poses an inherent danger, that is, a danger that persists despite the will of the accused. As a corollary to this principle, a danger to public safety that might be voluntarily created by the accused in the future by consuming drugs would not be the result of a “mental disorder” for the purposes of s. 16 Cr. C.

[34] In para 76:

The contextual approach required by Stone makes it possible to define the scope of this appeal. The purpose of the appeal is not to identify a rule to be applied to every case of toxic psychosis. And because every case has distinctive characteristics, it would be counterproductive to try to formulate an exhaustive definition of the mental conditions covered by Cooper’s exclusion of “self induced states caused by alcohol or drugs”. The instant case concerns just one type of toxic psychosis, namely one that resulted exclusively from a single episode of self induced intoxication.

[35] I note that is distinguishable from this case. Not only is Tubongbanua more likely to experience psychosis due to his underlying conditions, he has shown that he is unlikely to stop using drugs.

[36] His psychiatric disorder renders him more vulnerable to both. And in that condition, as occurred in this case he represents a clear danger to the public.

[37] Given this conclusion, that his psychosis which lead him to push a stranger onto the subway tracks was based primarily but not exclusively on his drug use, and his continuing danger caused by his inability to stop using drugs despite knowing the possibility of psychosis, I find, on balance, he was NCR at the time of the offence on account of Mental Disorder. In accordance with the submissions of counsel, he will be referred to the Ontario Review Board for disposition.

Released: June 24, 2022

Signed: Justice H. Borenstein