ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-88

DATE: 2015/11/12

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Ryan Flanagan

Defendant

Elaine Evans and Isabel Blanchard, Counsel for the Crown

Kim Hyslop, Counsel for the Defendant

HEARD: March 23, 24, 26, June 29 and July 3, 2015

reasons for judgment

Justice Rick Leroy

INTRODUCTION

[1] Ryan Flanagan is charged with an unparticularized count of attempted murder. He stabbed Don Summers with a kitchen knife from behind during the evening of May 9, 2014.

[2] The Crown position is that the accused is guilty of attempted murder. He intended to kill Mr. Summers. But for third party intervention, the accused would have persisted with the attack. He appreciated the nature and quality of the act and knew it was wrong.

[3] Defence concedes the attack. The defence is that Mr. Flanagan lacked capacity to form criminal intent. Section 16 of the Criminal Code creates an exception to criminal responsibility based on incapacity for criminal intent.

[4] Further, the defence position is that irrespective of Mr. Flanagan’s mental health issues, the external objective evidence of the events of the evening does not establish the specific intent to kill Mr. Summers, so that Mr. Flanagan’s exposure to conviction lies in a lesser included offence. If I reject the s. 16 defence, the whole of the evidence relating to mental disorder is in play in determining whether the Crown proved that Mr. Flanagan formed the necessary intent – R. v. David 2002 45049 (ON CA).

[5] The Crown moved for amendment of the indictment at the end of trial to include particularization of the means by which the act was committed. Particularization of the count brings the assault family of offences into the realm of lesser-included offences to attempted murder. The defence position is that having regard to the focal factors identified in R. v. St. Clair (1994) 8719 (ONCA) namely, the original indictment and the evidence adduced at trial, it would be difficult for the defence to argue meaningful prejudice so long as the lessor-included offences do not include aggravated assault or the offence of unlawfully intending to cause bodily harm. The mental element in those two offences includes the mental element of assault and “objective foresight or recklessness that the assault would subject the victim to risk of bodily harm”. Counsel submits that in light of the wording of the count before the Court through the trial, it was unnecessary to illuminate the psychiatrists’ opinions on the issue of whether Mr. Flanagan had the capacity of the reasonable person to foresee the risk of harm. Counsel acknowledges the merit of an amendment in the context of assault and assault with a weapon.

[6] The analytical process utilized in these reasons follows the Court of Appeal’s direction in R. v. David 2002 45049 (ON CA). In a non-bifurcated trial NCRMD, which deals with incapacity to form criminal intent, is normally dealt with before considering whether the accused actually formed the requisite intent. I will return to this later in these reasons.

[7] The contest over the Crown application to amend the count is pertinent only if the NCR exemption is rejected.

[8] The structure of these reasons is as follows:

Part 1 - Factual review:

Consideration will be given to time periods as follows:

i. the events of the evening of May 9, 2014;

ii. observations in the weeks and months preceding May 9, 2014;

iii. Mr. Flanagan’s psychiatric history including an NCR disposition after an assault on his mother; and

iv. Events following May 9, 2014 while Mr. Flanagan was incarcerated.

Medical reporting and evidence.

Part 2: Section 16/Analytical Process

Part 3: Conclusion

Part 1

The events of the evening of May 9, 2014

[9] The events of this case transpired through the evening and early morning of May 9 and 10, 2014. Mr. Flanagan, the accused and Mr. Summers, the victim, age 46 at the time, occupied two of three separate basement apartments in the same building. Pavel Jones occupied the third unit.

[10] The first interaction was brief, lasting 4-5 minutes between 8:00 p.m. and 8:30 p.m. Mr. Flanagan knocked on Summer’s door, was invited to enter and did. Mr. Flanagan was observed to be very agitated and upset, he was pointing his finger at Mr. Summers, he was profane, ordering Mr. Summers to stop talking about Mr. Flanagan on his fucking cell phone and threatened that he was going to take care of this and would return. Mr. Young, a visitor to the Summers’ apartment contested, but backed off when Mr. Summers signaled him to stay calm. Mr. Flanagan departed.

[11] For context, Mr. Summers did not have a cell phone, he and Mr. Young were quietly watching a hockey game and were not talking about Mr. Flanagan. Mr. Young recognized that Mr. Flanagan “had issues” and that he was likely “off his meds”. Mr. Young advised Mr. Summers that he had been threatened and recommended Mr. Summers call the police. He called it in. Mr. Young went on his way.

[12] While awaiting the police, Mr. Summers and Mr. Jones were watching the hockey game in Summers’ apartment, the door slightly open. Mr. Flanagan returned again to pound on the door and in the context of people talking about him on cell phones again threatened “to take him out” twice if Mr. Summers did not stop all the noise. Mr. Flanagan returned to his apartment coincident with police arrival.

[13] Constable Synnot spoke to Mr. Flanagan. He did not observe signs of drugs or alcohol. Mr. Flanagan was confrontational but calmed down. The conversation ended when Mr. Flanagan said words to the effect if you are not going to charge me, leave and Flanagan closed the door in the constable’s face.

[14] Constable Synnot then talked to the landlord and others. He was on site for 40 minutes. In the interval after Mr. Flanagan closed the door on him, Flanagan exited his apartment three times.

[15] Mr. Summers heard Mr. Flanagan yelling at the police officer through the whole exchange, telling him to get out. The officer left the matter of laying a charge to Mr. Summers, who demurred because he felt sorry for Mr. Flanagan. The police departed.

[16] For context, Mr. Summers and Mr. Jones confirm that the noise level of the hockey game was reasonable. There was no denigration, no cell phone conversation and no real life bilateral dispute.

[17] When the police departed, Summers and Jones went out for a smoke. They were sitting in the smoking area. Within five minutes of police departure, Mr. Flanagan stabbed Mr. Summers.

[18] There were two wounds. One to the anterior right neck area and one to the right forearm. The neck wound was a puncture that fortunately missed any important arteries or nerves. The arm wound was a laceration.

[19] Mr. Summers testified to two blows. In the hospital police interview shortly after the event Mr. Summers, confirmed one blow and demonstrated how he raised his right hand to block. He depicted the attack as being “bing bang”. Mr. Jones recalls one blow.

[20] Mr. Jones reacted quickly and tackled Flanagan. Flanagan did not fight back. Flanagan said forget about it.

[21] Mr. Jones called 911. Constable Synnot quickly returned, yelled at Flanagan to come out of his apartment. Flanagan did not respond.

[22] Staff Sgt. David Michaud called Flanagan at 12:12 a.m. on May 10. He asked Flanagan to exit and Flanagan agreed but that he needed a few minutes. Michaud called again at 12:16. Flanagan told him he was eating his breakfast and would exit when finished. Mr. Flanagan was in custody at 12:18 a.m.

[23] Mr. Flanagan was acquiescent with police. None of the officers’ concerns for instability of mental illness were elevated by Mr. Flanagan’s behaviour. That said, they had Mr. Flanagan on a 15-minute watch-cycle through the night.

[24] Mr. Flanagan’s apartment was thoroughly searched. It was neat and orderly. There were no drugs or alcohol. The weapon was not found. Mr. Flanagan’s medication blister packs reveal that he was off his psychiatric medication through the week of April 24 to May 1 and that he consumed only the bedtime medication from May 2 to May 6.

[25] The Olanzapam anti-psychotic was scheduled for bedtime .

Observations in the weeks and months preceding May 9, 2014

[26] These events of May 9 were anomalous to Mr. Summers. He had resided in his apartment for five months at the time. Flanagan and Jones occupancy pre-dated Summers.

[27] Mr. Summers could not recall comparable antecedents with Flanagan. Inter-unit noise was not a source of grievance in this building. His interaction with Flanagan was casual. He recalled that he initiated most of their interactions. Flanagan had offered to run grocery errands for Summers. He observed that Flanagan became more isolated over the last month or so before the attack. He encountered Flanagan at times when he was staring off into space, sometimes in their hallway. In those situations Flanagan was not responsive to salutation. He recalled that over the six weeks preceding the attack, he heard Flanagan walking up and down the apartment stairs between three and four in the morning.

[28] Dr. Ward, in testimony, noted that sleep is early to go in patient decomposition.

[29] Mr. Jones’ recollections were similar. This had been his home since 2008. His interaction with Flanagan was innocuous. He recalled the blank staring off into space and stair climbing that began within two weeks of Flanagan’s arrival. He recalled six or seven incidents when Flanagan tuned out and blankly stared off into space for 30-40 minutes at a time. He recalled having to walk around him when he was in that state. He narrated an occasion when Flanagan went up and down the apartment stairs 30 times over 6 hours interspersed by changes in clothing. He described it as more than odd behavior. It was the way he was almost half the time.

[30] He moderated with the observation that there were times when Flanagan was of pleasant disposition.

Mr. Flanagan’s psychiatric history

[31] Mr. Flanagan’s medical records were adduced as exhibits at trial.

[32] Mr. Flanagan is 40 years of age. His mental disorder issues are chronic. He was hospitalized twice in 2002 and once in 2003 with diagnoses of psychosis NOS (not otherwise specified), possibly induced by substance abuse and severe personality disorder – antisocial and borderline traits. Treatment included prescriptions for Valproic Acid and Olanzapine, an anti-psychotic. He was hospitalized in 2004 with symptoms that included auditory hallucination, ideas of reference (the phenomenon of an individual experiencing innocuous events or mere coincidences and believing they have strong personal significance), paranoia and depression. The diagnosis included psychotic episode, polysubstance abuse and personality disorder. He received outpatient treatment between 2004 and 2005.

[33] He was charged with assault with a weapon, uttering threats to cause death/bodily harm in 2005 and was found NCR on November 5, 2011 due to mental disorder. He was admitted to the Brockville Mental Hospital for three and one-half years. He was assessed every year. On April 15, 2005 the diagnosis involved significant major mental illness with both mood and psychotic components. On April 20, 2005, his treating physicians identified narcissistic personality disorder and delusions. On February 15, 2006, he was assessed in the moderate to high risk of re-offence still burdened with residual psychotic symptoms. On February 13, 2007, issues of medication compliance and abstinence from drugs and alcohol were unresolved and he was not ready for discharge consideration. He was deemed suitable for conditional discharge on February 7, 2008. He was discharged in 2009 and was followed by Dr. Magda Hanna.

[34] Subsequent suicide attempts including overdoses, wrist cutting and jumping from bridges are recorded as part of Mr. Flanagan’s more recent history. He was re-admitted to hospital twice in 2013 for mental health reasons including anxiety, depression, persecutory delusion and auditory hallucination. Substance abuse – alcohol and cocaine and medication non-compliance was noted.

[35] There is consensus among the treating professionals that Mr. Flanagan is afflicted with schizoaffective disorder – depressive type, overlaying antisocial personality disorder traits, alcohol and substance abuse disorder. Schizoaffective disorder symptoms include hallucination, paranoid delusion and disorganized speech and thinking.

Events following May 9, 2014 during incarceration

[36] Mr. Flanagan refused medications at OCDC, beginning in December 2014. On March 5, 2015, Dr. R. Kunjukrishnan from the Royal Ottawa Mental Health Centre observed that Mr. Flanagan was having a relapse of schizophrenia as the result and concluded Mr. Flanagan was unfit to stand trial. Dr. Kunjukrishnan recommended that Mr. Flanagan be returned to the hospital on a 30-day assessment for assessment of fitness to stand trial.

[37] That order was made.

[38] After another four days of escalating unpredictability and aggression during which he was chemically restrained twice, Mr. Flanagan agreed to take a long acting injection (Invega Sustenna 150 mg). Invega is used to treat the symptoms of schizophrenia and related psychotic illnesses in adults, is injected and eliminates the requirement of daily oral consumption. On March 18, 2015, Dr. Kunjukrishnan concluded, using the test of limited cognitive capacity, that Mr. Flanagan was fit to stand trial. Mr. Flanagan has been resident at the Royal Ottawa Mental Health Centre on a “keep fit order” where he receives monthly injections of Invega Sustenna.

Medical reporting and evidence

[39] Two regionally eminent psychiatrists testified as to Mr. Flanagan’s state of mind when he stabbed Mr. Summers. Both prepared medical reports of their findings. They agree that, on a balance of probabilities, Mr. Flanagan did not know when he attacked Mr. Summers that what he did was wrong.

[40] Dr. Helen Ward wrote the 30-day assessment report to the court in relation to Mr. Flanagan’s criminal responsibility under section 16(1) of the Criminal Code dated June 20, 2014. She does approximately 15 such reports per year. She is the Clinical Director of the Forensic Treatment Unit at the Royal Ottawa Mental Health Centre. Her expertise is well recognized and much relied on by Courts in this jurisdiction.

[41] In the report, she concluded, not without reservation, that the intensity of Mr. Flanagan’s psychotic state at the time of the attack was such that he was unable to make a rational choice to behave differently. The inability to make a rational choice means that Mr. Flanagan could not appreciate that his behaviour was wrong.

[42] In Dr. Ward’s opinion, Mr. Flanagan is afflicted with Schizoaffective disorder. The MMPI-2 testing did not exclude psychosis. In her report, she noted some incongruity because Mr. Flanagan also exhibits behaviours supportive of an antisocial personality disorder.

[43] In testimony, after having had the opportunity of reviewing Dr. Gojer’s medical opinion, Dr. Ward retracted her reservation relative to a diagnosis of Antisocial Borderline Disorder. She agreed that Mr. Flanagan’s psychiatric history does not support a diagnosis of Borderline Personality Disorder and that his serious offending is secondary to schizoaffective disorder, a major mental illness.

[44] She concluded as well that although there is evidence of direct correlation between alcohol and stimulant intoxication and his aggressive behavior, there is enough evidence from his past psychiatric history to indicate he has been psychotic on occasions when he has not been using substances, and to an extent and duration that would not be consistent with a Substance-Induced Psychotic Disorder. It is Dr. Ward’s opinion that “Mr. Flanagan’s long-term prognosis is likely to be poor as he has clearly shown a recent inability to remain compliant with psychiatric treatment and abstain from stimulant use.”

[45] Dr. Ward’s opinion in respect to event incapacity cited ambivalence.

[46] She observed that the degree of violence exhibited in the stabbing is disproportionate to the degree of his delusional belief and could not be legally or morally justified by the delusional beliefs, if true.

[47] The relevance of that factor is discounted by the jurisprudence. “The question is not whether, assuming the delusions to be true, a reasonable person would have seen the … need for death-threatening force. Rather, the 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” – R. v. Oommen, 1994 101 (SCC), [1994] 2 S.C.R. 507 – para 30 per McLachlin J.

[48] She noted Mr. Flanagan’s pre-occupation with an NCR outcome in the context that raised concern his presentation may have been disingenuous.

[49] Dr. Gojer did not view that as a relevant factor. He said talking about NCR after the fact is not a consideration. I agree. That pre-occupation is no more indicative of disingenuous presentation than not.

[50] Dr. Ward noted that Mr. Flanagan was not actively psychotic when he entered hospital 11 days after May 9, 2014. Both doctors agreed that Mr. Flanagan recovers quickly with effective medication.

[51] Dr. Julian Gojer has been qualified hundreds of times as an expert in the area of forensic assessment relative to the NCR issue.

[52] Dr. Gojer’s reasoning is formidable. If anything, the value of his discernment was enhanced on cross-examination. He concluded that Mr. Flanagan suffers from a major mental illness, namely Schizoaffective Disorder that features both Schizophrenia and a Bipolar Mood Disorder. He acknowledged the history of alcohol and drug abuse. He excluded a diagnosis of an Antisocial Personality Disorder (APD) – as noted Dr. Ward withdrew her concern for this issue raised in her report in trial testimony. Dr. Gojer noted that personality disorder symptoms are a lifetime affliction. It does not come and go. If Mr. Flanagan was afflicted with APD, it would have been diagnosed when he was inpatient at the Brockville Psychiatric Hospital for 3.5 years. Dr. Ward concluded that the earliest diagnoses were more likely expedient deferences to sensibility. That was his first exposure to the system and an APD diagnosis is less of a stigma than a major mental disorder that would follow the patient through life.

[53] Dr. Gojer’s review factored in the case file synopsis from the CCPS dated May 10, 2014, witness statements from Ryan Flanagan, Donald Summers, Pavlo Jones, Bentley Young, PC Ryan Campeau, Cst. Andrew Stephenson, PC Sarah Van Den Oetelaar, PC Bryan Synott, the arrest report, Dr. Ward’s report, Dr. Magda Hanna’s medical records, records from the Royal Ottawa, report from the Ontario Review Board dated June 18, 2007 and a two- hour interview with Mr. Flanagan.

[54] Both doctors agreed that extensive history of mental illness, the one-sided rant – railing against Mr. Summers for talking about him on his non-existent cell phone -, the observed behaviour in the months preceding May 9, 2014 – staring into space, non-responsive, night-time stair climbing underscore the hold the illness has on him.

[55] Dr. Gojer viewed the history of a correlation between psychosis and substance abuse (cocaine, speed and/or alcohol) as association rather than causation. He viewed the resort to substances as symptomatic of the psychosis rather than the cause of it.

[56] Dr. Gojer explained that schizophrenia patients will be able to internalize events that are not troublesome to them and be delusional about those that are. His parallel referenced ability to perform banking procedures but when it comes to difficult areas in their lives they are irrational. In this case, Dr. Gojer opined that Mr. Flanagan was able to internalize the discussion with the police officers, respond rationally to Pavlo Jones after he was tackled and eat his cereal, but could not cope with the auditory hallucination involving Donnie Summers as the focus.

[57] Both doctors agreed that an inability to recall the event does not signify malingering or disingenuous presentation. Dr. Ward explained that memory depends on emotional state. Memory is not laid down when heightened emotions block it. It could also be that he is too guarded because of his mental illness or it could be he has another agenda. People will recall the before and after and not the event. It is not uncommon.

[58] Dr. Gojer concluded that in the presence of hallucination and delusional belief, it is likely that Mr. Flanagan’s thought processes were significantly compromised to the extent he was unable to rationally evaluate the situation around him. The psychotic illness would have robbed him of rational choice. He would not have known the moral wrongfulness of his actions. He would not have been able to weigh the pros and cons of his actions. He lacked capacity to know that the action of stabbing Mr. Summers was something he ought not to do.

Part 2

[59] Section 16 of the Criminal Code provides that:

(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.

[60] Subsection 16(1) describes the extent of the mental disorder that exempts an accused from criminal responsibility. It must first be shown that, at the time of the relevant act or omission, the accused was suffering from a mental disorder. That fact is not contested. Mr. Flanagan is afflicted with Schizoaffective Disorder with schizophrenia and bi-polar manifestations. The mental disorder must be sufficiently severe to bring it within either branch of s. 16(1). Under the first branch, the mental disorder must have rendered the accused incapable of appreciating the nature and quality of the act or omission. The question is whether the accused was incapable of appreciating the physical consequences of his act or omission. Under the second branch, the mental disorder must have rendered the accused incapable of knowing the act or omission was wrong. The question is whether the accused due to disease of the mind was rendered incapable of knowing the act was something he ought not to have done. The branches are alternatives: a mental disorder that meets either branch is enough to relieve the accused of criminal responsibility.

[61] The context was elucidated by Justice McLachlin in R. v. OOmmen, 1994 101 (SCC), [1994] 2 S.C.R.507 –

“Section 16(1) of the Code embraces not only the intellectual ability to know right from wrong in an abstract sense, but also the ability to apply that knowledge in a rational way to the alleged criminal act. The section focuses on the particular capacity of the accused to understand that his act was wrong. An accused should be exempted from criminal responsibility where at the time of the act, a mental disorder deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.”

[62] Justice McLachlin distinguished the person lacking capacity from the psychopath, or person following a deviant moral code of right and wrong or the person afflicted with APD who are capable of knowing that his or her acts are wrong in the eyes of society, and, despite such knowledge, choose to commit them – para 32.

Analytical Process

[63] As noted at the outset my analytical process was approved in R. v. David, 2002 45049 (ON CA), [2002] O.J. No. 3455 (ONCA).

[64] Section 16 of the Criminal Code creates an exemption to criminal responsibility based on incapacity for criminal intent.

[65] Section 16 is concerned only with capacity for criminal responsibility. It is not concerned with what the accused actually appreciated and is not concerned with actual mens rea or actus reus. Mental illness as it relates to the essential elements of an offence or defences to it, on the other hand, is concerned not with capacity, but the actual state of mind of the accused.

[66] The NCR inquiry does not look beyond capacity to actual mens rea or actus reus. Where capacity becomes an issue at trial, there will be objective evidence from which, absent the claim of incapacity under s. 16 of the Code, the trier of fact will be justified in inferring the existence of the essential elements of the offence, namely the mens rea and actus reus. The claim of incapacity; however, pre-empts the traditional inference drawing process on the ground that a person without the capacity for choice as defined in s. 16 of the Code is not morally culpable. Because of lack of capacity, the issue of actus reus and mens rea do not arise – R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303 per McLachlin J. in minority but not on this point.

Part 3: Conclusion

[67] Mr. Flanagan is not criminally responsible for stabbing Donnie Summers on May 9, 2014. I accept that it is more likely than not Mr. Flanagan committed the attack on Mr. Summers while suffering from a mental disorder that rendered him incapable of knowing it was wrong to do so.

[68] This man has been mentally ill for a long time. He is diagnosed with Schizoaffective Disorder. Psychosis is symptomatic. Psychotically driven auditory hallucination is part of Flanagan’s documented psychiatric history. He was delusional for a good part of the three years he resided at the Brockville Psychiatric Hospital (BPH). Although there was an historical correlation between Flanagan’s psychosis and substance abuse, the medical professions sense of cause and effect is that the subs