ONTARIO COURT OF JUSTICE
DATE: 2023 07 10 COURT FILE No.: 22-40000100 Metro North, Toronto
BETWEEN:
HIS MAJESTY THE KING
— AND —
Maxim ILTCHENKO
Before: Justice Cidalia C.G. Faria
Heard on: June 8, 2023
Reasons for Ruling on Assessment for Not Criminally Responsible (NCR) released on: July 10, 2023
Counsel: Geocelyne Meyers, counsel for the Crown Pat Morabito, counsel for the defendant Maxim ILTCHENKO
Faria J.:
I. Overview
[1] On May 31, 2023, after a trial, I found Maxim Iltchenko guilty of two counts of threatening his mother.
[2] Prior to proceeding to verdict and sentence, the Crown raised the possibility that Mr. Iltchenko may have a defence of Not Criminally Responsible for the reason of a Mental Disorder pursuant to s. 16 of the Criminal Code and advised she would apply for a court ordered NCR assessment. The Defence opposed the application. The matter was adjourned for material to be filed. Submissions were heard on June 8, 2023.
[3] I have considered the material filed and submissions made and will grant the Crown’s application and order an NCR assessment. I am satisfied the Crown has met its onus. These are my reasons.
II. Issue
[4] The issues to be determined are:
i. Has the Crown satisfied the court that there are reasonable grounds to doubt Mr. Iltchenko is criminally responsible for the offences on account of a mental disorder?
ii. Are there reasonable grounds to believe an NCR assessment would provide evidence necessary to determine if Mr. Iltchenko was suffering from a mental disorder so as to be exempt from criminal responsibility for the offences?
III. Position of the parties
[5] In support of her application, the Crown filed the following:
- Iltchenko (Re) Ontario Review Board (Criminal Code) Decision, July 9, 2021 [1]
- Ruling on the Issue of Criminal Responsibility, February 3, 2017, Justice L. Pringle [2]
- CAMH Forensic Psycholegal Clinic Report, January 11, 2017, Dr. Iosif [3]
- CAMH Forensic Psycholegal Clinic Report, December 1, 2016, Dr. Iosif [4]
- CAMH Report, September 27, 2016, Dr. Iosif [5]
and relied on R. v. Pancer, 2018 ONCJ 355, and R. v. Panton-Sawyers, 2020 ONSC 2881.
[6] Ms. Meyers submitted the material filed establishes Mr. Iltchenko suffers from a major mental disorder, and, given the nature of the offences, their similarity to the offences for which he was previously found to be NCR in 2017, his absolute discharge from the Ontario Review Board (ORB) less than six months before the offences, and the evidence of a triggering event, she has established reasonable grounds to doubt Mr. Iltchenko is criminally responsible for the offences and an assessment as to whether s. 16 is available to him should be ordered.
[7] Counsel for the defence opposes the application and filed:
- Medical letter, Dr. Cheryl Rowe, Psychiatrist, April 5, 2023 [6]
and relied on R. v. John Doe, 2011 ONSC 92.
[8] Mr. Morabito submitted the Crown has not met its onus and is trying to convince the court by relying on a mental disorder diagnosis, and a historical finding of NCR on offences significantly different than those before the court. He submits a major mental diagnosis itself is insufficient to warrant doubting criminal responsibility. He also submits the offences before the court are sufficiently different than those he was found to be NCR for, that a comparison is not appropriate. He focuses his submissions on what he argues is the lack of evidence at the time of the commission of the offences of symptoms of Mr. Iltchenko’s illness affecting his conduct.
IV. Legal Principles
[9] It is a fundament principle of justice that the criminal justice system does not convict a person who was insane at the time of the commission of an offence. [7]
[10] The consequences of finding a person Not Criminally Responsible for Mental Disorder can be profound which requires a high degree of procedural fairness and scrupulous attention to the rights of the accused person. [8]
[11] Section 672.11 sets out the purposes for which an assessment may be ordered. For the present purposes s. 672.11(b) provides:
s. 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) of the Criminal Code …
[12] Section 672.12 sets out the circumstances in which an assessment order may be made, depending upon who (judge, Crown, or accused) attempts to invoke the procedure. When the Crown attempts to invoke the procedure, s. 672.12(3) applies:
s. 672.12 (3) Where the prosecutor applies for an assessment 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. (Emphasis added)
[13] Although no particular evidence is necessary, the basis for the belief must be “clear and plainly appears on the record of proceedings” [9]
[14] Section 16 reads:
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.
V. Analysis
[15] Justice Brown in Pancer helpfully articulates the test to order an assessment as follows:
“the test is whether there are reasonable grounds to doubt the presumption of criminal responsibility as set out in s. 16(2) of the Criminal Code. The reasonable grounds to doubt this presumption of criminal responsibility must be related to the suffering from a mental disorder at the time of the offence.” (Emphasis added) [10]
[16] In that case, Justice Brown had direct evidence about Mr. Pancer’s conduct and demeanour at the time of the offences as he was arrested and immediately taken to hospital regarding his mental health. That is not so in the case before me.
[17] Both Counsel referred to John Doe. The Crown submitted Justice Trotter set the bar too high for the determination of reasonable grounds to believe and reasonable grounds to doubt. The Defence emphasised Justice Trotter’s finding there was no evidence that a mental disorder rendered Mr. Doe incapable of appreciating the nature and quality of his conduct or knowing that his conduct was wrong at the time of the offences.
[18] The circumstances in that case however, differ in two significant ways from the circumstances before me.
[19] First, there was conflicting information as to whether Mr. Doe suffered from a major mental disorder. Here, it is not disputed Mr. Iltchenko suffers from a major mental disorder.
[20] Second, there was conflicting evidence as to whether Mr. Doe’s mutism was selective and voluntary. He was described as a “mystery” with his behaviour as “confounding”. Here Mr. Iltchenko’s behaviour is consistently documented when he is ill.
[21] As a result, Mr. Doe’s circumstances are distinguishable from those of Mr. Iltchenko’s.
[22] The exhibits filed by the Crown, not disputed by the defence, establishes the history of Mr. Iltchenko’s mental disorder as follows:
- Mr. Iltchenko suffers from Bipolar Affective Disorder Type I which appears to have begun in April 2006 and went untreated until 2016 when he engaged with the criminal justice system because of criminal charges. [11]
- Mr. Iltchenko was found not criminally responsible by reason of a mental disorder on February 9, 2017, by Justice L. Pringle for the charges of mischief, possession of a weapon (x2), uttering a threat to cause death or bodily harm (x3) repeatedly communicating with a person, and failing to comply with a Release Order. [12]
- From February 9, 2017 to July 9, 2021, Mr. Iltchenko was under the supervision and medical care of the (ORB) for his mental disorder because of the finding of NCRMD. The ORB discharged him absolutely on July 9, 2021, finding him to no longer pose a significant threat to the safety of the public.
[23] Between 5 and 6 months after his absolute discharge from CAMH by the ORB, Mr. Iltchenko committed the present offences.
[24] There is no need establish whether Mr. Iltchenko’s current conduct is similar or dissimilar to that for which he was found to be NCR as both the Crown and the Defence submit. An examination of the current offences and his conduct around the time of those offences alone, gives rise to reasonable grounds to doubt his criminal responsibility.
[25] Dr. Cheryl Rowe, Mr. Iltchenko’s psychiatrist since January 2023, notes in her letter that “his current episode of mania and depression was precipitated by an injury to his beloved dog” when she referred to the conduct before the court. [13]
[26] In addition:
- Ms. Pilieci described her son in late December 2021 as “agitated” and “angry” because she could not go on an outing with him. His conduct was so distressing she felt she had to leave his apartment and did so.
- Ms. Pilieci testified Mr. Iltchenko’s dog was injured and she believed he asked her to pay a veterinary bill in the amount of about $600.00 which she would not do.
[27] The nature of the first threat in December 2021 is irrational. Mr. Iltchenko states:
“If Xena dies I’m going to vandalize your property and possibility hurt you or your Italian family. You brought this to my life you fucking bitch! Don’t ever contact me again you dumb bitch!”.
[28] Ms. Pilieci did not injure the dog and did not “bring” this problem to his life. Even if she did refuse to pay the veterinary bill, the intensity of the rage is disproportionate and tangential to the accusation at its highest.
[29] Had that been the only threat, the defence argument that the substance and nature of the threat is not sufficient to raise concerns about Mr. Iltchenko’s mental status at the time of the offence, as, though illegal, and disproportionate, certainly there may be a rational basis for Mr. Iltchenko’s rage, would have been more persuasive.
[30] However, the nature of the subsequent threat places Mr. Iltchenko’s mental status at the time of the conduct into question.
[31] After having had no contact with his mother after the first threat, Mr. Iltchenko leaves his mother the following voice mail message on January 28, 2022:
“Bitch vile scum. Sick Pedophile. I will kill you soon, get it. I will kill you soon if you don’t give me the money. Give me 10 or 20 thousand otherwise your whole house – there will be an explosion, fire, get it. I will fucking steal your car. I will break your face. I will break your bones with a knife, hammer. if you don’t give me the money, I will kill you bitch”.
[32] This is an escalation of violent speech. It is much more specific in its description of harm. It uses derogatory terms unrelated to the dispute Mr. Iltchenko seems to have with his mother. The violence is grandiose in its breadth and intensity.
[33] This conduct fits Dr. Iosif’s description of Mr. Iltchenko’s conduct during his psychotic episodes:
- It is triggered by a stressful event (Exhibit 4 at p. 25)
- It is “agitated” behaviour (Exhibit 4 at p. 25, 26)
- It is controlling and manipulative towards women when rejected (Exhibit 4 at p. 25)
- When he is “in a state of mania, he appears to present with increased impulsivity and impaired judgement; he is agitated and threatening, engaging in intimidating outbursts with others, and displaying odd or bizarre behaviours” (Exhibit 3 at p. 6).
VI. Conclusion
[34] Given:
- Mr. Iltchenko suffers from a long-standing diagnosed mental disorder.
- The evidence of Mr. Iltchenko’s dog becoming injured is the triggering event to the first threat.
- Ms. Pilieci’s description of Mr. Iltchenko as “agitated” just before the first threat.
- Ms. Pilieci did not give Mr. Iltchenko money to pay his veterinary bill thereby rejecting his request.
- The nature of both threats was to intimidate her, the second was an escalation after no contact with her, both offences could be described as “an outburst”, and could be characterized as “odd” or “bizarre”.
I find there are reasonable grounds to doubt that Mr. Iltchenko was criminally responsible at the time of the offences.
[35] As such, an assessment as to whether the defence of NCR pursuant to s. 16 of the Criminal Code is available to him is of assistance to that determination, and I will order one.
Released: July 10, 2023 Signed: Justice Cidalia C. G. Faria