CITATION: R. v. O’Neill, 2016 ONSC 1841
COURT FILE NO.: 0235/15
DATE: 20160318
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
SHAWN O’NEILL
Elena Middlekamp, for the Crown
Christopher R. Murphy, for Mr. O’Neill
HEARD: March 4, 2016
TROTTER J.
INTRODUCTION
[1] Shawn O’Neill, who is 62 years old, suffers from schizophrenia. In 1996, after being found not criminally responsible on account of mental disorder (NCRMD) for weapons offences, he was subject to the jurisdiction of the Ontario Review Board (ORB) for many years. In late 2013, the ORB granted Mr. O’Neill an absolute discharge, leaving him unsupervised in the community. He started to consume alcohol and marijuana on a daily basis. He stopped taking medication that had been very successful in controlling his psychotic symptoms.
[2] On January 25, 2015, while laboring under delusions, Mr. O’Neill stabbed 4 people and brandished a knife at 2 others, all of them strangers to him. As a result of this rampage, Mr. O’Neill was charged with 4 counts of attempted murder, 4 counts of aggravated assault, 2 counts of assault with a weapon and a single count of weapons dangerous.
[3] Both counsel submitted that Mr. O’Neill should be found NCRMD once again. These reasons explain why I agree that this is the proper result.
THE PROCEDURE
[4] Mr. O’Neill was arraigned on a number of charges in the Indictment. He entered pleas of “not guilty” to all of them. Counsel presented an Agreed Statement of Facts. The Crown adduced video surveillance evidence that recorded two of the stabbings. I also heard the evidence of a forensic psychiatrist. On this basis, I was invited to find that Mr. O’Neill was NCRMD.[^1]
[5] In many ways, this proceeding resembles a guilty plea. Even though Mr. O’Neill “hopes” to be found NCRMD, he is waiving important constitutional rights to achieve this result.
[6] With guilty pleas, there is a broad spectrum of potential outcomes, ranging from non-custodial sentences to lengthy jail terms. However, the consequences of an NCRMD finding are always very serious. Typically, they result in significant deprivations of liberty, sometimes involving lifelong supervision: R v. Szostak (2012), 2012 ONCA 503, 289 C.C.C. (3d) 247 (Ont. C.A.), at p. 270 and R. v. Capano (2014), 2014 ONCA 599, 314 C.C.C. (3d) 135 (Ont. C.A.), at p. 144. Moreover, justice has the real potential to miscarry in this context, especially when procedural safeguards are compromised. See R. v. Cotterell, 2013 ONCA 446.
[7] As already mentioned, Mr. O’Neill did not plead guilty. Instead, he entered pleas of “not guilty,” but did not dispute the allegations against him. In R. v. G. (D.M.) (2011), 2011 ONCA 343, 275 C.C.C. (3d) 295 (Ont. C.A.), the Court considered the fairness of this type of nolo contendere proceeding (albeit outside of the NCRMD framework). Writing for the Court, Watt J.A. provided the following direction (at p. 305):
Plea inquires are mandatory where pleas of guilty have been entered, even where the accused is represented by counsel. Where what occurs is a functional equivalent of a guilty plea, an inquiry should be conducted to ensure that the accused understands the nature and effect of the procedure and has voluntarily participated in it.
See also R. v. R.P. (2013), 2013 ONCA 53, 295 C.C.C. (3d) 28 (Ont. C.A.).
[8] A trial judge is not required to conduct an inquiry (similar to the procedure described in s. 606(1.1) of the Criminal Code) in every “consent” NCRMD proceeding: R. v. Quenneville, 2010 ONCA 223 (holding that a failure to do so did not amount to a violation of either ss. 7 or 12 of the Charter) and R. v. Williams, 2012 ONCA 695, at paras. 31-33. However, in R. v. Trudel, 2015 ONCA 422, Hourigan J.A. said (at para. 49): “…in certain circumstances, a trial judge should inquire into an accused’s understanding of an NCR verdict.”[^2]
[9] I concluded that it was necessary to conduct a comprehension inquiry in this case because: (1) the proceedings before me are (at least in part) the “functional equivalent” of a guilty plea; and (2) the potential consequences for Mr. O’Neill are very grave. Before I conducted my inquiry, Mr. Murphy assured me of Mr. O’Neill’s fitness. This was confirmed during my questioning of Mr. O’Neill, who presented as alert and responsive. Mr. O’Neill said that he understood that he was giving up his right to have a trial on the merits. He was aware that he would be found guilty of certain offences based on the Agreed Statement of Facts. Finally, he appreciated that he faced the possibility of spending the rest of his life in a psychiatric hospital if found NCRMD. In the end, I was satisfied that Mr. O’Neill’s consent to a NCRMD verdict was informed and voluntarily.
THE FACTUAL BASIS FOR THE PROCEEDINGS
(a) Background
[10] As noted already, Mr. O’Neill has long-suffered with mental illness. He also struggles with substance abuse. On August 30, 1996, Mr. O'Neill was found NCRMD on charges of assault with a weapon and possession of a weapon dangerous to the public peace: O’Neill (Re), [2005] O.R.B.D. No. 1818. He remained subject to the direction of the ORB for 17 years. For a number of years, he lived in the community, subject to conditions designed to monitor his substance abuse and to ensure that he took his anti-psychotic medication.
[11] On November 21, 2013, at Mr. O’Neill’s last ORB hearing, he requested that he be given an absolute discharge. Mr. O’Neill’s treatment team resisted this change of status. A majority of the ORB concluded that Mr. O’Neill was not a “significant threat to the safety of the public.”
[12] In the minority, Dr. R. Sheppard concluded that Mr. O’Neill remained “a significant threat to public safety” and that his conditions should not be lifted. In his reasons, Dr. Sheppard outlined the hospital’s concerns about Mr. O’Neill being absolutely discharged:
The concern expressed by the hospital, with respect to public safety arising from Mr. O’Neill’s substance use, is not that occasional and minimal use of cannabis is likely to trigger violent behavior; rather, absent the close supervision of the treatment team that is currently in place, the concern is that Mr. O’Neill’s level of substance use will increase substantially, and that a protracted episode of substance abuse would result in his disengagement from the treatment team, increase the likelihood of medication non-compliance, lead to social problems such as loss of housing, and eventually result in a return of psychotic symptoms accompanied by aggressive behaviour, such as has occurred in the past.
Dr. Sheppard agreed with these concerns and could not join the majority in recommending an absolute discharge.
(b) The Events of January 25, 2015
[13] Just over a year later, on January 25, 2015, at about 8:30 a.m., Mr. O’Neill was in his downtown Toronto apartment. He had not been sleeping well, nor had been taking his medication. Mr. O’Neill armed himself with a kitchen knife and went outside onto Church Street. Christopher Young, a Ph.D. student, was walking along the sidewalk when Mr. O’Neill said something and then lunged at him with the knife. Mr. Young was stabbed in his lower right abdomen. He sustained no internal injuries. However, he required stitches to close the knife wound.
[14] Mr. O’Neill made some erratic movements, going back and forth across the street, and then continued on his way. John Tedesco was on a morning run. As he ran past, Mr. O’Neill stabbed him with great force in the lower back. As he turned around, he saw Mr. O’Neill waving the knife in his right hand. Mr. Tedesco got into a cab and went to a hospital. This shocking incident was captured by surveillance cameras from a nearby business. Like Mr. Young, Mr. Tedesco was fortunate to walk away with just a couple of stitches and no internal injuries.
[15] As Mr. O’Neill continued on his way, Sally Kaack was walking towards him, oblivious to what had happened moments earlier. Ms. Kaack was a visitor from Australia. She was in Canada to audition for the National Ballet. As the two approached each other, Mr. O’Neill yelled at someone across the street. Ms. Kaack tried to avoid Mr. O’Neill, but he stabbed her in her right ribcage, under her breast. She thought she had been punched, until she realized that she was bleeding. This incident was also caught on video. Ms. Kaack’s injuries were far more serious. The stab wound punctured the lower portion of her right lung. She was hospitalized for two days and required follow up imaging until she was cleared to fly home a week later.
[16] Mr. O’Neill then approached two other men on the street. He brandished a knife at David Johnstone, who used a shopping trolley to defend himself. Mr. O’Neill ran away. He then approached Wayne Perry, who had just stepped out of his condo building. Mr. O’Neill asked Mr. Perry for money and showed him the knife. Mr. Perry was also able to run away, unharmed.
[17] Jennifer Tran was a resident at St. Michael’s Hospital who had just finished a night shift. As she was walking home, Mr. O’Neill approached her and stabbed her in her left chest area. Ms. Tran’s iPhone was in the left breast pocket of her hospital scrubs. Miraculously, the knife travelled through her winter coat and hit the iPhone. This caused the blade of Mr. O’Neill’s knife to break and detach from the handle. Ms. Tran said that the blow knocked the wind out of her. She said she had never felt anything that strong in the past. After being assessed by paramedics at the scene, Ms. Tran went home, with no lasting injuries.
[18] Shortly afterwards, Mr. O’Neill was arrested at gunpoint by two police officers. In order to ensure he was weaponless, the officers asked Mr. O’Neill to open his hands. He had to be asked 5 to 6 times before he finally complied. Both officers said that Mr. O’Neill had a blank stare on his face and said nothing. One of them described him as “coming back to reality” as he was put in a police car.
[19] All of these events happened within minutes. The various descriptions of the victims and witnesses, along with the surveillance footage, shows that Mr. O’Neill appeared to be in a very frantic and disorganized state that morning.
(c) The Psychiatric Evidence
[20] I made a psychiatric assessment order under s. 672.11 of the Criminal Code. Dr. Scott Woodside, an eminent forensic psychiatrist, conducted the assessment of Mr. O’Neill. He prepared a 52-page report, which was supplemented by his viva voce evidence.
[21] Dr. Woodside reported that Mr. O’Neill has suffered with schizophrenia and substance abuse for many years. He has had over 70 hospital admissions. The offences that led to his 1996 NCRMD verdict bear some similarity to the current charges in that they arose from an encounter with a stranger on the street. His actions would appear to have been the product of delusions similar to the ones he was laboring under on January 25, 2015.
[22] Dr. Woodside reviewed Mr. O’Neill’s criminal history, which he characterized as “extensive.” Mr. O’Neill has accumulated many convictions, sometimes for assaultive and weapons offences. However, most entries are property-related. They stopped when he was found NCRMD. He has not committed offences when supervised in the community.
[23] Mr. O’Neill was admitted to hospital from May to July of 2014 (following his absolute discharge in November of 2013). He had become psychotic. He was stabilized and the released. He started drinking again. His daily routine was to drink 2-3 large cans of beer, and sometimes more. He also consumed marijuana. Eventually, his psychotic symptoms returned. He developed paranoid delusions about being harmed by others. He suffered from a delusion concerning the “Baltimore Catechism,” which caused him to believe that others were hurting children on a large-scale level. He considered himself “the instrument” and that he had to “set an example” and act out against others he felt were doing harm. These two delusional systems were active on January 25, 2015.
[24] As part of the psychiatric assessment, Mr. O’Neill was screened for the possibility of malingering (i.e., faking psychiatric symptoms). A psychologist administered the Miller Forensic Assessment of Symptoms Test (“MFAST”), a tool used to detect malingering. Based on his score, there was no concern about faking or exaggerating symptoms. As Dr. Woodside said in his evidence, given Mr. O’Neill’s long-standing mental illness, and in view of the number of times he has been admitted to hospital (over 70), malingering is not a serious issue.
[25] After considering all of the information made available to him, Dr. Woodside confirmed Mr. O’Neill’s long-standing diagnosis of schizophrenia, something that has been present since his early 20’s. As Dr. Woodside explained:
However, simply suffering from a psychiatric/mental disorder does not necessarily lead to the conclusion that an individual would have a defence of not criminal responsible available to him. Rather, there also needs to be evidence that symptoms were active at the material time and directly impacted on the individual’s capacity to appreciate the nature and quality of their acts or omissions or to know the wrongfulness of their acts or the omissions (i.e., that there is a direct nexus between active symptoms of their illness and the individual’s thinking and behaviour).
[26] Dr. Woodside was of the opinion that Mr. O’Neill was probably capable of appreciating the nature and quality of his acts (i.e., he was stabbing others “and that the knife was likely to cause injury or death to the victim”). Mr. O’Neill also knew that his acts were legally wrong. However, he lacked the capacity to know that they were morally wrong. As Dr. Woodside explained:
…it appears that he was laboring under a number of delusional beliefs at the material time, including the belief that children were being harmed by others and that his own life was in danger. It appears Mr. O’Neill likely felt justified and compelled to act out in an effort to stop what he believed to be the widespread abuse of children. That is, he likely felt morally justified with respect to his actions, on the basis of his delusional beliefs.
In our opinion the most likely scenario accounting for Mr. O’Neill’s actions at the material time is that he was suffering from significant active symptoms of psychosis, which rendered him incapable of knowing his acts were morally wrongful. In our opinion, Mr. O’Neill was likely so preoccupied with, and disorganized by, the symptoms of his mental illness that he was not capable of engaging in any rational choice regarding his action.
Dr. Woodside confirmed and elaborated upon this conclusion during his testimony.
POSITIONS OF THE PARTIES
[27] On behalf of the Crown, Ms. Middlekamp argued that the Agreed Statement of Facts, along with the video evidence, supports findings of guilt beyond a reasonable doubt for each of the offences, including a finding that Mr. O’Neill intended to kill Ms. Tran when he stabbed her in the chest. Ms. Middlekamp also submitted that the assessment report and the viva voce evidence of Dr. Woodside prove that Mr. O’Neill was NCRMD for his actions that day.
[28] On behalf of Mr. O’Neill, Mr. Murphy agreed that, with the exception of the attempted murder count, guilt is established on all charges. He argued that the Agreed Statement of Facts falls short of proof beyond a reasonable doubt that Mr. O’Neill intended to kill Ms. Tran. Otherwise, Mr. Murphy agreed with the Crown that his client should be found NCRMD.
ANALYSIS
(a) Attempted Murder vs. Aggravated Assault
[29] Murder may be committed with less than the specific intent to kill (see s. 229(a)(ii) of the Criminal Code). However, attempted murder in s. 239 requires proof of a specific intent to kill, and nothing less: R. v. Ancio (1984), 1984 CanLII 69 (SCC), 10 C.C.C. (3d) 385 (S.C.C.). It is also the specific intent to kill that separates attempted murder from aggravated assault (s. 268). I must determine whether the Agreed Statement of Facts supports a finding, beyond a reasonable doubt, that Mr. O’Neill attempted to kill Ms. Tran when he stabbed her.
[30] I am satisfied beyond a reasonable doubt. Had Ms. Tran’s chest not been shielded by her iPhone, she would likely have been stabbed in the heart. It is true that no words accompanied this attack. And because the knife broke, the attack ended quickly. However, the following factors support my conclusion: (a) Mr. O’Neill’s behaviour leading up to his attack on Ms. Tran (i.e., stabbing 3 other people in the torso with great force); (b) his delusional state in which Mr. O’Neill believed his life was threatened and his perceived role as an “instrument” against wide-spread child abuse; and (c) the direction of the stabbing motion, directly at Ms. Tran’s heart area. The only rational inference to be drawn from the factual foundation before me is that Mr. O’Neill intended to kill Ms. Tran when he stabbed her: R. v. Griffin (1999), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.).
[31] Furthermore, I am satisfied that the Agreed Statement of Facts establishes guilt on all of the other counts Mr. O’Neill was arraigned on.
(b) Not Criminally Responsible
[32] Section 16(1) of the Criminal Code provides that:
s. 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. [emphasis added]
This case turns on whether Mr. O’Neill’s mental disorder rendered him incapable of knowing that his actions were “wrong.”
[33] As Dr. Woodside testified, Mr. O’Neill was likely able to appreciate the nature and quality of his acts. Moreover, he probably knew that his actions were “wrong” from a formal legal perspective. However, s. 16 encompasses a deeper conception of “wrongfulness.” As Chief Justice Lamer explained in R. v. Chaulk (1991), 1990 CanLII 1237 (BC CA), 61 C.C.C. (3d) 193 (S.C.C.), at p. 230:
In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to formal law. A person may well be aware that an act is contrary to law but, by reason of …. disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. [emphasis added]
[34] This interpretation was confirmed in R. v. Oommen (1994), 1994 CanLII 101 (SCC), 91 C.C.C. (3d) 8 (S.C.C.). Chief Justice McLachlin addressed the issue in the following passage at pp. 15-16:
A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.
The wording of s. 16(1) suggests this result. It proclaims that the focus is not a general capacity to understand that the act, say of killing, is wrong, but rather the act “committed” or omission “made”, i.e. the particular act or omission in the criminal proceedings. [emphasis added]
See also R. v. Campione (2015), 2015 ONCA 67, 321 C.C.C. (3d) 63 (Ont. C.A.), at pp. 72-75.
[35] In this case, there can be no doubt that, at the time of the offences, Mr. O’Neill suffered from a mental disorder – schizophrenia. Moreover, I am satisfied on a balance of probabilities that, although he knew that the acts that he committed that morning were legally wrong, because of his delusions, he did not have the ability to know that these acts were morally wrong in the circumstances. Instead of entering convictions, I find Mr. O’Neill NCRMD on all counts except the aggravated assault count relating to Ms. Tran. Because I have found Mr. O’Neill guilty of attempted murder in relation to Ms. Tran, that aggravated assault count is conditionally stayed.
CONCLUSION
[36] I conclude with the following observations. My decision to find Mr. O’Neill NCRMD is based on the joint recommendation of reasonable and experienced counsel. It is one that is supported by the opinion of an eminent forensic psychiatrist and his team.
[37] In finding Mr. O’Neill NCRMD, I do not for a moment minimize the injuries and trauma suffered by the 6 victims. Nor do I underestimate the fear and concern of the people who witnessed these random attacks, and those in the community who have since come to learn about them. This decision is made with the expectation that Mr. O’Neill will always be carefully monitored and supervised in the future.
[38] If it is not already clear, I am very grateful to counsel for their assistance.
TROTTER J.
RELEASED:
CITATION: R. v. O’Neill, 2016 ONSC 1841
COURT FILE NO.: 0245/15
DATE: 20160318
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
SHAWN O’NEILL
REASONS FOR JUDGMENT
TROTTER J.
RELEASED:
[^1]: Although there is a formal verdict of NCRMD in s. 672.34 of the Criminal Code (further described in s. 672.1), there is no corresponding NCRMD plea in s. 606(1).
[^2]: Hourigan J.A. (at para. 54) said that, while the failure to make an inquiry in that case was not fatal, it would have been “preferable” had the trial judge done so.