Her Majesty the Queen v. Small, 2017 ONSC 4710
MONDAY, JULY 31, 2017
R E A S O N S F O R J U D G M E N T
CONLAN, J. (Orally):
In January, 2015, Lezleigh Hopkins, a relatively young lady, was killed at the hands of David Small. It was a tragic end to the life of Lezleigh, made even more devastating, perhaps, by the fact that she appeared to be doing quite well as of early 2015. Exhibit 1, the Agreed Statement of Facts, indicates that Lezleigh had been drug and alcohol free for some time, and was on no prescription medication, and, in fact, was about to be discharged from the treatment program at the time of her death.
Of course, the one thing that this court would very much like to do is not available, and that would be to go back in time; go back to perhaps the end of 2014 and spare Lezleigh’s life so that she could continue on her road to recovery, and continue with her life. Unfortunately, that’s not possible.
The only issue before this court is whether David Small ought to be found not criminally responsible on account of mental disorder. A review of the provisions in the Criminal Code reveals the following: an accused who because of a mental disorder was incapable of appreciating the nature of his act, or knowing that it was wrong at the time that he committed it, cannot be
found criminally responsible for that act.
The burden is on Mr. Small, on a balance of probabilities, to show that he was not criminally responsible for the death of Lezleigh. There is normally a presumption that one is criminally responsible for what one does, but there are cases where that presumption is overcome by the evidence.
Put another way, it is up to Mr. Small, in this case, to persuade the court that he was suffering from a mental disorder at the relevant time, so as to be exempt from a finding of guilt.
If this court does render a verdict of not criminally responsible on account of mental disorder, then either this court, or the Ontario Review Board, may hold a disposition hearing, and if this court decides to refer the disposition to the Ontario Review Board, then the Criminal Code sets out certain timelines that must be respected.
The issue of not criminally responsible on account of mental disorder is grounded – it is premised on a very longstanding principle of criminal law in Canada; that principle being that only truly voluntary acts can attract findings of guilt.
One of the leading court decisions in Canada on the issue of not criminally responsible is a case called Bouchard-Lebrun, 2011 SCC 58. In that case Justice LeBel, for the Supreme Court of Canada, reiterated the uniqueness of the defence of mental disorder. Rather than resulting in an acquittal, a successful defence of mental disorder results in a special verdict of not criminally responsible.
In turn, that verdict triggers an administrative process, which is aimed at protecting the public and helping the offender. Morally innocent offenders ought to be treated, not punished. That is the general theme expressed in court decisions such as Bouchard-Lebrun.
An accused in the position of Mr. Small, who wishes to advance a defence of mental disorder, must meet the requirements of a two-stage statutory test. The first stage deals with the mental state of the accused. Was he suffering from a mental disorder, in the legal sense, at the time of the event? The second stage concerns the effects of the mental disorder. Owing to his mental condition, was Mr. Small incapable of knowing that what he did was wrong?
I am fully aware of the fact that the issue of not criminally responsible on account of mental disorder can be confusing to a lay person, and can be upsetting, for lack of a better expression, to friends and family members of a victim such as Lezleigh. It can be a very hard pill to swallow.
One has to keep in mind, however, that not criminally responsible on account of mental disorder is by no means a common verdict. It has to be based on hard evidence, and it is a verdict that is only rendered where the court has been persuaded that the accused person, in this case Mr. Small, has met his burden of proof.
A verdict of not criminally responsible should not be looked at as a mere crutch for someone who wants to be excused for having committed a crime. I understand that it is tempting to view the verdict that way, but that temptation should be avoided wherever possible.
I want to also say something brief about the Ontario Review Board, mainly for the benefit of Mr. Small, and for the friends and family members of Lezleigh who are present. The Ontario Review Board has been around for a long time in this province. It is considered to be a very specialized tribunal. In many, if not most instances, it is that body, that tribunal, that is in the best position to make the ultimate disposition of what should happen to someone like Mr. Small.
In this particular case the court has the benefit of two very comprehensive reports from two different forensic psychiatrists, and I want to highlight a couple of excerpts from each report. I have read the reports in their entirety.
Beginning with the report authored by Dr. Cohen, in that report at page 69, Dr. Cohen indicates that from a psychiatric perspective, Mr. Small was more likely than not unable to assess the moral wrongfulness of his actions at the time of Lezleigh’s death. And Mr. Small was unable to do so, in the opinion of Dr. Cohen, as a result of his serious mental illness; his psychosis, which mental disorder was, in the words of Dr. Cohen, “the primary driver of Mr. Small’s behaviour” on the date in question.
In other words, put in perhaps a more easy to
understand way, in the opinion of Dr. Cohen what happened to Lezleigh would very likely not have happened but for the mental disorder that Mr. Small was experiencing at the time.
Dr. Cohen goes on to indicate that Mr. Small would benefit from a formal risk assessment, which also could be filed with the Ontario Review Board, in order to help that tribunal determine what ultimate disposition ought to be made.
Dr. Cohen indicates that this by no means should
be seen as a free pass for someone like Mr. Small, and that’s my expression, not the doctor’s.
Dr. Cohen indicates that ongoing psychiatric care is recommended to monitor carefully Mr. Small’s mental state; to provide him with treatment, substance counselling, management, and interpersonal skills training.
The penultimate conclusion by Dr. Cohen is that a defence of not criminally responsible on account of mental disorder is supported by the evidence for Mr. Small.
But it’s not just Dr. Cohen who found that, but Dr. Van Impe, likewise a very accomplished forensic psychiatrist, essentially found the same thing. At pages 49 and 50 of Dr. Van Impe’s report, the psychiatrist indicates that in his opinion, Mr. Small viewed his actions as they occurred at the time as morally justifiable; that Mr. Small, at the time of Lezleigh’s death, was operating under a delusional belief that had a firm hold of his actions.
Dr. Van Impe goes on to indicate that if Mr.
Small had not have been suffering at the time from such a serious delusion, then he would have realized that his behaviour was wrong, and more than likely would not have engaged in anything that would have led to harm or the death of Lezleigh.
Just as Dr. Cohen concluded, the final opinion expressed by Dr. Van Impe, at page 50 of the report, is that on a balance of probabilities, Mr. Small would have available to him a defence of not criminally responsible on account of mental disorder.
These reports by Dr. Cohen and Dr. Van Impe are not brief ones. They are not reports that simply scratch the surface. They are very thorough reports, setting out the complete psychiatric history of Mr. Small, and ought to be given significant weight by this court.
I want to say something about the victim impact statements that have been filed. It is difficult for a judge to read statements like this, because they are very touching, and they really bring a human face to the suffering of those who have been left behind. It is hard to read things like:
Losing my parents to cancer was
heartbreaking. It was a completely different kind of grief though. With my
parents they battled cancer with surgeries,
medicine, and chemo, but in the end cancer
had won. Those were the hardest times in
our childhood, but we knew there was nothing
else that could have been done. It was
inevitable. But losing my sister the way
that we did, that could have been avoided.
She should still be here.
It’s difficult to read that, and I certainly understand the sentiment.
The tragic death of Lezleigh leaves behind those who will now have to depend on counselling; will now have to overcome their own depression, their own anxiety, their own feelings of uncertainty, in order to try to move on. It’s difficult to read things like, “It’s been two and a half years since we lost Lezleigh, and the pain feels like yesterday.” “This will never be over for us.”
“The only thing that gives me any peace is knowing that Lezleigh is wrapped in her mom and dad’s arms and she will never suffer again.” “What happened to Lezleigh has hurt and destroyed the happiest family that I belong to.”
Lezleigh is described as one of the kindest, most soft-spoken persons known; that she was in a comparatively good place in her life as of early 2015.
In this era of modern technology, when we communicate with people in various ways, electronically included, I was struck by this comment: I was just thinking about all the people I text every day, including Lezleigh. I looked so forward to her reply, always cheerful, always happy. I will never get a text from her again.
It is difficult to read things like the consequences that myself and my family has experienced, suffered, and endured will only continue. There is no moving on for us. This is the reality that we live and have been forced into. We would give anything to turn back time; that is the only thing that could possibly make us whole again, back to who we were and who we want to be.
When one looks at the victim impact statements, it becomes clear, first of all, how difficult it must have been to prepare them, and second, the fact that there is really nothing that this court can say that can try to make it easier or better for the family and friends of Lezleigh. It’s too bad, because I wish that there was something that
I could say.
I do want to thank the authors of the victim impact statements. It’s one of the most important things that we consider in these types of cases. I know it would not have been easy to write them.
This case boils down to a joint submission, and by that I mean the lawyers, very experienced, agree that the most appropriate verdict for this court to render is one of not criminally responsible on account of mental disorder. Joint submissions, that is agreements by competent, experienced lawyers, ought to be given substantial weight by courts. It is very evident to me that a lot of work has gone into this case; a lot of preparation has been spent before today.
In the end, what I have is an agreement by two lawyers, and I have very thorough reports from two forensic psychiatrists, all saying the same thing. That is that Mr. Small ought not to be found criminally responsible for the tragic killing of Lezleigh, and I will concur with that. I will accept the joint position that’s been put forward by the lawyers. I will accept the opinions expressed by the two forensic psychiatrists.
And so I have endorsed the matter that the
verdict is not criminally responsible on account of mental disorder, and that the disposition is referred to the Ontario Review Board.
The special verdict is rendered pursuant to Section 672.34 of the Criminal Code, and the authority for referring the disposition to the ORB comes from 672.45(1), and sub (1.1), and
672.47(1) of the Criminal Code.
FORM 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Susan Marriott, certify that this document is a true and accurate transcript of the recording of R. v. Small in the Superior Court of Justice held at 611 9th Avenue East, Owen Sound, taken from Recording 1011-201-20170731-083012—30-CONLANC, which has been certified in Form 1.
Date Susan Marriott
ACT ID #7183710780