CITATION: R. v. Boekwa, 2017 ONSC 2848
COURT FILE NO.: CR-16-1673-00
DATE: 2017 05 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Andrew Falls, for the Crown
- and -
BOKETSU BOEKWA
Christopher Assie, for the Defendant
HEARD: May 2, 2017
REASONS: NOT CRIMINALLY RESPONSIBLE
Fairburn J.
I. Overview
[1] On March 20, 2015, Ms. Boekwa and her son threatened their neighbour with death. When the police arrived in response to the neighbour’s call, two officers were stabbed, an officer and civilian were shot and Ms. Boekwa’s son was fatally shot.
[2] Ms. Boekwa was tried by judge alone on a six-count indictment. Crown counsel withdrew one count during the course of the trial. On January 27, 2017, Ms. Boekwa was found guilty of the remaining five counts: (1) conspiracy to commit murder; (2) three counts of assault with a weapon; and (3) uttering a death threat. The reasons for judgment are found at R. v. Boekwa, 2017 ONSC 705.
[3] The conduct was extremely serious, dangerous, and had tragic and profound consequences, including to members of the public and law enforcement officers upon whom we rely to keep us safe. Nothing in these reasons should be interpreted as in any way diminishing the seriousness of what transpired.
[4] Following the findings of guilt, Crown counsel asked for an order under s. 672.11(b) of the Criminal Code, requiring Ms. Boekwa to undergo an assessment into her mental condition in order to determine whether, at the time of the commission of the offences, she was suffering from a mental disorder such that it would exempt her from criminal responsibility.
[5] The assessment order was made on January 27, 2017. Ms. Boekwa was subsequently assessed by a medical team at Ontario Shores, Centre for Mental Health Services. Dr. Marie-Pierre Chenard-Poirier and Dr. Mark Pearce co-authored a report dated March 21, 2017. The report has been filed on the Crown’s application to have Ms. Boekwa found not criminally responsible for the actions underlying the five counts upon which findings of guilt were made. Ms. Boekwa consented to the filing of the report. While Crown counsel offered to call the authors to testify about their findings, Ms. Boekwa did not seek to examine the authors. Nor did Ms. Boekwa seek to have any other report or evidence placed before the court. In the end, she does not oppose the Crown’s application for a not criminally responsible finding. In the circumstances, and bearing in mind the lengthy and careful report prepared, it is unnecessary to hear from its authors.
II. The Operation of Section 16 of the Criminal Code
[6] Section 16(1) of the Criminal Code allows for a verdict of not criminally responsible for actions taken or omissions made while a person is suffering from a mental disorder that renders her incapable of appreciating the nature or quality of the act or omission or of knowing that it was wrong. Section 16(2) of the Code imposes a presumption that an accused person does not suffer from a mental disorder until the contrary is proven on a balance of probabilities. Section 16(3) places the burden of proof on the party raising the issue, in this case the Crown.
[7] Therefore, by operation of s. 16, an accused person is presumed criminally responsible for her actions unless it is proven on a balance of probabilities that:
(a) at the time of the actus reus, the accused was suffering from a mental disorder; and
(b) the mental disorder either made the accused incapable of appreciating the nature or quality of her act or rendered her incapable of knowing that the act was wrong.
III. Suffering From a Mental Illness
[8] I am entirely satisfied that at the time of the offending conduct, including in the period of time leading up to March 20, 2015, when Ms. Boekwa was conspiring with her son to kill their neighbour, she was suffering from a mental illness. I have carefully reviewed the assessment report in this case. Based upon the opinion offered, against the facts as elicited and found in this trial, I accept that Ms. Boekwa was and continues to suffer from a psychotic disorder, most likely schizophrenia. As noted in the report: “… it is very clear that this lady was floridly psychotic on or about March 20, 2015.” I place particular emphasis on the following passage from the report:
For several years now, [Ms. Boekwa] has endorsed a complex and intricate delusional belief system and has endorsed hallucinations. At times, her behavior and thought form have been disorganized. Mood symptoms have not been particularly evident and her symptom burden extends well beyond that expected with delusional disorder. Finally, there is no suggestion of substance misuse and Ms. Boekwa has remained floridly psychotic despite being incarcerated for two years.
[9] The report goes on to suggest as follows:
Over the past five years, she has been quite clearly psychotic; she quit work, sold her car and took her daughter out of school. She began spending increasing amounts of time exploring and pursuing her overtly delusional beliefs. It is also apparent that her son was similarly afflicted; while we have not had access to his medical records or been able to interview him, he was quite clearly suffering from manifestations of a chronic psychotic disorder. Together they reinforced each other’s delusional preoccupations. This rare condition is known as a shared psychotic disorder or Folie à Deux.
[10] Having listened to the evidence at trial, including the viva voce evidence of Ms. Boekwa and her daughter, Ms. Boekwa’s delusions at the time of the offending conduct seem clear, obvious and honestly held. Indeed, they persist until this day. They include matters involving the Illuminati, her son being a King in a select line of Kings, the neighbour being a witch, the neighbour transforming into a cat, Queen Elizabeth having stolen her son’s throne, and other like things.
[11] I have considered the definition for schizophrenia, a major mental illness involving symptoms of psychosis, which definition includes the presence of delusions, hallucinations, and grossly disorganized thought and behavior. I am satisfied on a balance of probabilities that at the time that she committed the actus reus of the offences, Ms. Boekwa was suffering from a mental disorder within the meaning of ss. 2 an 16(1) of the Criminal Code.
IV. Incapable of Knowing Her Actions Were Wrong
[12] While Dr. Chenard-Poirier and Dr. Pearce are of the opinion that Ms. Boekwa was likely capable of appreciating the nature and quality of her actions at the material time, they conclude that she was “sufficiently ill to have been robbed of the ability to know that her actions were morally wrong, as per the standards of an ordinary person”. Based upon the evidence heard at trial, I accept the opinion expressed. The question as to whether an individual knew that her actions were wrong, requires the court to consider the capacity of the accused to understand values and what other people in the same situation ought to do and not do. As noted in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at para. 97:
… the term ‘wrong’ as used in s. 16(2) must mean more than simply ‘legally wrong’. 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 the 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.
[13] As McLachlin J. (as she then was) emphasized in R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, at para 26, the real issue is to consider 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 rational choices can arise from delusions that “make the accused perceive an act which is wrong as right or justifiable”: Oommen, at para. 26. As Blair J.A. put it in R. v. Campione, 2015 ONCA 67, at para. 41:
In short, a subjective, but honest belief in the justifiability of the acts – however unreasonable that belief may be – is not sufficient, alone to ground an NCR defence, because an individual accused’s personal sense of justifiability is not sufficient. The inquiry goes further. The accused person’s mental disorder must also render him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with those standards.
[14] Based on the evidence heard at trial and the opinion rendered, I am satisfied on a balance of probabilities that Ms. Boekwa was incapable of knowing that the acts she engaged in were morally wrong as measured against societal standards and that she was incapable of making choices in accordance with societal compliant standards. Quite simply, she was incapable of making a rational choice.
[15] By way of only a few examples, she believed that her neighbour was a witch. She believed that her son was a King. And, along with the Illuminati, she believed that the neighbour had played a role in taking her son’s throne which rested with Queen Elizabeth. Her thoughts arose from delusions. When she plotted with her son to kill their neighbour, her thoughts arose from her delusions. I agree with the summary on this point set out in Dr. Chenard-Poirier and Dr. Pearce’s report:
… she was deluded as to the intentions of her neighbour and she plotted to kill her and then threatened to harm her. She came to her front door to see her son, whom she believed to be a King, being arrested and she reacted aggressively as a result. She was, by virtue of her mental illness, not able to turn her mind to how others would perceive the wrongfulness of her actions and she was deprived of the capacity for rational perception and hence, could not exercise rational choice about whether to commit the acts in question or not.
[16] I agree. Ms. Boekwa was incapable of knowing and did not know that her actions were wrong. Her mental illness rendered her incapable of making choices necessary to act in a manner consistent with societal norms. This observation applies to the time period when she and her son conspired to kill their neighbour, when she threw a knife at and threatened to kill her neighbour, and when she assaulted the police officers with a pot.
V. Conclusion
[17] Bearing in mind the positions of counsel, the evidence led during this phase of the proceedings, the evidence led at trial, and the findings of fact previously made, on a balance of probabilities I find Ms. Boekwa not criminally responsible on all five offences. A verdict of not criminally responsible on account of mental disorder is made in respect to each count.
[18] I am not asked to hold a disposition hearing pursuant to s. 672.45(1) of the Criminal Code. Nor do I see the need to hold one. This matter should be dealt with by the Review Board. Pursuant to s. 672.45(1.1) of the Code, the matter shall be sent to the Review Board with a copy of the indictment, the entire trial transcript, all reproducible exhibits, a copy of the reasons for judgment, these reasons and any other materials the Crown or defence deem appropriate.
[19] I wish to thank both counsel for the diligent, thoughtful and careful manner in which this very difficult matter has been litigated.
[20] To Madame Boekwa, your daughter reports that, before events started to take shape, you were a positive, loving person who did not have problems with anyone. It is clear that you have a loving daughter who you love very much. This relationship will no doubt assist you as you move forward from this courtroom.
Fairburn J.
Released: May 9, 2017
CITATION: R. v. Boekwa, 2017 ONSC 2848
COURT FILE NO.:CR-16-1673-00
DATE: 2017 05 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
BOKETSU BOEKWA
REASONS: NOT CRIMINALLY RESPONSIBLE
Fairburn J.
Released: May 9, 2017