Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 07 08 COURT FILE No.: Toronto 19-21-75002197

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

LUKE STEWARDSON

Before: Justice André Chamberlain

Heard on: April 21, 2022 Reasons for Judgment released on: July 8, 2022

Counsel: Alex Merenda....................................................................................... counsel for the Crown Iryna Revutsky.............................................. counsel for the accused Luke Stewardson

Chamberlain J.:

[1] Luke Stewardson has entered a guilty plea to the lessor and included offence of assault causing bodily harm following an arraignment on aggravated assault; this was on consent of the Crown. This matter was the subject of a number of judicial pre-trials in anticipation of the plea. The Crown has indicated it is requesting that I order an assessment under section 672.11 (b) of the Criminal Code in conjunction with section 672.12(3) (b). Mr. Stewardson has no formal psychiatric or mental health diagnosis though there have been three apprehensions under the Mental Health Act by the Toronto Police Service in the past. Mr. Stewardson opposes the application.

Facts Not in Dispute

[2] Mr. Stewardson has admitted to stabbing his friend and roommate, Gerrard Banks on May 14, 2021. They had been friends for over a year. Mr. Banks is in his 70’s and it is evident he cares deeply for his friend, Mr. Stewardson. Mr. Banks has expressed ongoing support for Mr. Stewardson and wishes to continue their friendship.

[3] The Crown has submitted no evidence on the motion before me, but, on consent of Mr. Stewardson through his counsel, all parties have agreed that I can rely on the documents put before me, namely, the psychiatric assessment dated March 3, 2022, and prepared at the request of Mr. Stewardson by Dr. Julian Gojer, a psychiatrist in forensic practice at the Manasa Clinic in Toronto. As well, they have submitted a report prepared in August of 2007 when Mr. Stewardson was 17 years of age, by Vicky Veitch Wolfe, a psychometrist at St. Clair Child & Youth Services.

[4] The facts surrounding the finding of guilt are as follows:

Mr. Stewardson and victim were hanging out inside Mr. Banks’ apartment located at [xxx] Sherbourne Street in the City of Toronto. Both parties were seated on a sofa inside the living room. Mr. Banks advised that prior to the assault, Mr. Stewardson was “rambling” on about space Martians. Mr. Banks ignored Mr. Stewardson and continued to watch television. During this time Mr. Stewardson looked at Mr. Banks and stated, “something about Martians” and immediately initiated an unprovoked attack on Mr. Banks with a knife. Mr. Banks was unsure how Mr. Stewardson armed himself with a knife, but Gerrard Banks sustained three stab wounds to his chest.

Mr. Banks ran out of his apartment, bleeding and yelling for assistance. Security at the building contacted police. Responding officers located Mr. Stewardson still inside Mr. Banks’ apartment. He was placed under arrest. He was transported to 51 Division, charged accordingly, and held pending a show cause hearing.

Injuries: Three stab wounds to the chest. Mr. Banks received 11 stiches.

[5] The following provisions of the Criminal Code are relevant to this application:

[6] Section 672.11 sets out the jurisdiction of the Court to order an assessment of the “mental condition” of Mr. Stewardson if I have reasonable grounds to believe his criminal responsibility may be in question.

672.11 A court having jurisdiction over an accused in respect of an offence may order an assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine ...

(b) whether the accused was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1);

[7] Section 672.12 sets the bar for such a finding higher when the prosecutor applies for the assessment.

Section 672.12 . . .

(3) Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if ...

(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence on account of mental disorder.

[8] Where Section 16 of the Criminal Code sets out the principles of our belief in mens rea, that a person can only be found criminally responsible if they can appreciate the nature and quality of the act or omission or of knowing that it was wrong, and places the burden to prove the person’s mental health status at the time of the offence on the party raising it.

Section 16

(1) 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.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

The Position of the Parties

[9] The Crown relies on the thorough assessment by Dr. Gojer, noting a history of substance abuse which was lengthy and varied in its drug of choice over the years, including alcohol, cannabis, ecstasy, oxycontin, psilocybin, crack cocaine, crystal methamphetamine, fentanyl, hydromorphone, methadone, and benzodiazepine.

[10] Mr. Merenda admits that there is no specific diagnosis of a mental disorder but suggests that I can find that though there seems to be a connection between Mr. Stewardson’s drug use and the psychotic episodes, I should, notwithstanding, find there are reasonable grounds to doubt whether Mr. Stewardson can be found criminally responsible on account of a mental disorder.

[11] Ms. Revutsky points to the clear connection between Mr. Stewardson’s psychotic episodes and his drug use, specifically as it relates to crystal methamphetamine and alcohol. As such, she suggests that Mr. Stewardson’s condition is not related to a mental health disorder directly.

[12] She points me to the test as enunciated in R. v. John Doe [2011] O.J. No. 52, and points to paragraph 40:

. . . the materials in the application record suggest the "possibility" that Mr. Doe was not criminally responsible when he committed the offences that he currently faces. However, it is no more than that - a possibility.

[13] As such, Ms. Revutsky asks, on behalf of her client Mr. Stewardson, that I find that the Crown has not met its burden and dismiss the application.

Review of the Evidence

[14] Mr. Stewardson was cooperative and seemingly honest with Dr. Gojer, and I commend him for that. He recounted the events leading up to, and his recollection of his state of mind, at the time of committing this offence. I quote: (abridged for the sake of brevity)

Mr. Stewardson said that he had attended a month-long in-patient rehabilitation program at CAMH and attended the CAITS program following a detox program in July 2019. He began using drugs again as soon as he left rehab. He was using fentanyl, crack-cocaine, and crystal methamphetamine daily until his arrest.

[15] (Parenthetically: I will note that the CAITS (Concurrent Addiction Inpatient Treatment Services) program, which is part of the Centre for Addiction and Mental Health, CAMH, a Toronto based medical hospital focusing on mental health and addiction, describes the CAITS program thus on their website: CAITS is for patients needing stabilization of addiction and concurrent mental health disorders to prepare for further treatment at CAMH or in the community.) I continue with Dr. Gojer’s report:

Mr. Stewardson said that, on May 12th, 2021, he began experiencing persecutory thoughts that someone, he was unsure whom, was coming to harm him at his apartment. He hid behind his front door with a bat, before jumping out of the window of his apartment, which was on the second floor. After wandering around Toronto for a while, he walked into a hospital seeking medical help. He does not know which hospital this was. After waiting at the Emergency Department for a while, he left. . . .

On the day of the alleged offense, he used 0.2gms of fentanyl and 0.2gms of crack-cocaine a few hours prior to the alleged offense. He had not used any other drugs following the abovementioned day, two days prior. After he used the drugs, his roommate, left the apartment for a while before returning. When his roommate returned, he thought he saw his roommate pull out a gun and shoot him. He then thought he saw the gun disappear. He saw a knife on their coffee table, grabbed it and stabbed his roommate.

He does not recall having any conversations about “space” or “Martians” that day but said that he has had such conversations before, and he believes that there are aliens on Earth. He said that he recalled stabbing his roommate once and seeing the knife explode after he pulled the knife out. His roommate ran out of the apartment shouting “He stabbed me! He stabbed me!”. He was not worried because he did not believe that his roommate was hurt or wounded by the knife. . . .

After his roommate ran out calling for help, police attended the apartment and arrested him. . .. When the police arrived, he did not think he was going to get arrested because he did not believe that his roommate had been stabbed. He thought that they would simply ask him questions. Once he was arrested, he began to realize that his roommate may have been wounded. He was still unsure, however.

He said that he is unsure, now, after time has passed, whether his memories are accurate, or whether he hallucinated his roommate shooting at him. He said that he regrets stabbing his roommate because he does not want to hurt anybody. He also felt that, since he was not shot, he may not have needed to stab his roommate. However, he is still not certain whether his roommate shot at him.

[16] Dr. Gojer made the following limited diagnosis at page 16 and 17 of his report:

Mr. Stewardson has had psychotic episodes over the years and they seem to be related to drug use and in particular to the use of crystal methamphetamines. Since his arrest he has continued to express psychotic symptoms and a diagnosis of drug induced psychosis has given way to a diagnosis of Psychosis Not Otherwise Specified. Given the long history of paranoia, the persistence of psychotic symptoms while in custody, the likelihood of Schizophrenia being the present diagnosis is high. One cannot rule out ongoing drug use in custody.

[17] At page 17, he made the following comments as part of his risk assessment and prognosis:

Mr. Stewardson’s history of drug use seems to have been persistent since his mid to late teens His psychotic symptoms seem to have also persisted while in custody. His poor history of abstinence from drugs suggests that this problem is likely to be there upon release. He will need ongoing treatment for his psychosis in the community. Given his poor track record, his prognosis for abstinence from drug use and compliance with treatment for his psychosis is poor. Given that his offenses involved ongoing drug use and that he used a weapon on his roommate at the height of what appears to be a drug related psychotic episode, I see him at high risk for future violence, unless he commits to an intensive treatment program.

[18] With respect to his recommendations, Dr. Gojer makes the following statement:

Mr. Stewardson requires ongoing treatment for his psychosis. Preferably this would be with a long-acting injectable antipsychotic drug. There are several available and this is better left to the treating physician to decide on. He should also have intensive monitoring and treatment for his drug problems.

Conclusion

[19] After careful consideration of all the circumstances of this case as provided to me with the evidence filed on this application, I am satisfied that there are reasonable grounds to doubt whether Luke Stewardson truly understood the nature and quality of his actions when he stabbed his good friend Gerrard Banks. In his own words recounted to me through his assessment by Dr. Gojer, Mr. Stewardson indicated that even after Mr. Banks ran out of the apartment yelling “he stabbed me, he stabbed me,” Mr. Stewardson noted that: “He was not worried because he did not believe that his roommate was hurt or wounded by the knife.”

[20] Even on reflection months after the incident in May of 2021 when he was assessed earlier this year, Dr. Gojer, noted: “He said that he is unsure, now, after time has passed, whether his memories are accurate, or whether he hallucinated his roommate shooting at him. He said that he regrets stabbing his roommate because he does not want to hurt anybody. He also felt that, since he was not shot, he may not have needed to stab his roommate. However, he is still not certain whether his roommate shot at him.”

[21] But that, of course, is not the only concern I must address, I must find there are reasonable grounds to doubt that Mr. Stewardson is criminally responsible for the offence on account of a mental disorder.

[22] Dr. Gojer’s report provides a well-founded assessment of this prospect as well. As noted, there definitely appears to be a correlation between Mr. Stewardson’s psychotic episodes and his drug use. But the report leaves me with serious doubt as to whether these psychotic episodes are exclusively caused by his drug use but rather that they may be connected to some other as yet undiagnosed mental health disorder. My doubts that I can exclusively attribute these psychotic episodes to drug use arise out of Dr. Gojer’s report, specifically in the “risk assessment and prognosis” and “recommendations” sections. In his findings, Dr. Gojer suggests: “Since his arrest he has continued to express psychotic symptoms and a diagnosis of drug induced psychosis has given way to a diagnosis of Psychosis Not Otherwise Specified.” He concludes in his recommendations that: “Mr. Stewardson requires ongoing treatment for his psychosis. Preferably this would be with a long-acting injectable antipsychotic drug.”

[23] Dr. Gojer admits that he cannot rule out ongoing drug use while Mr. Stewardson has been in custody. The availability of street drugs and their use in correctional facilities is perhaps more prevalent than many of us care to admit. But as part of this application I heard no evidence that Mr. Stewardson’s drug use has continued while in custody.

[24] Therefore, I find that notwithstanding the lack of a specific mental health diagnosis, and given my findings of concerns about Mr. Stewardson’s ability to appreciate his actions and their consequences and whether he truly understood the nature and quality of his actions, coupled with the doubt, I would argue clearly raised by Dr. Gojer when he stated that “a diagnosis of drug induced psychosis has given way to a diagnosis of Psychosis Not Otherwise Specified” I can conclude the following: I find that there are reasonable grounds to doubt that Luke Stewardson is criminally responsible for the offence on account of a mental disorder.

[25] As a result, I find that there are reasonable grounds to believe that the evidence that an assessment report would provide into Luke Stewardson’s mental condition is necessary to determine whether, at the time he committed the offence of which he has been convicted, he was "suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16 (1)” of the Criminal Code.

[26] I make an order under s. 672.11 (b) that Mr. Stewardson be assessed with regard to his state of mind at the time of stabbing Mr. Banks, and whether he was incapable of appreciating the nature and quality of that act, or of knowing that it was wrong to do so, in order to determine whether he was suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16 (1).

[27] I wish to thank both counsel for their very helpful submissions. It is clear that though you disagreed with what the result should be, I very much appreciated the care and concern you showed for Mr. Stewardson’s well-being.

[28] I particularly want to acknowledge Mr. Stewardson: Sir, I cannot imagine what it is like to have a roomful of strangers and your good counsel Ms. Revutsky, discussing the most intimate details of your life, including your state of mind, and reviewing your life as if under a microscope. The criminal courts are a blunt instrument. We all forget sometimes as we speak of people’s circumstances and conditions, that we are dealing with people who are here, present, being addressed in the third person as if they are not part of the process but just being spoken about.

[29] I’m sorry if this process has caused you any pain and discomfort. Though you may not clearly always understand the ins and outs of the law itself, I hope that the care and concern all parties expressed was clear to you. I know it is hard to have others speak about you, but I want you to know I appreciate how hard this has probably been, and I thank you for trusting us to deal with this as respectfully as we were able to in these very trying times. Good luck sir and we’ll see you in a few weeks.

Released: July 8, 2022 Signed: Justice André Chamberlain