COURT FILE NO.: CR-16-100000108-0000

DATE: 20180607

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANIEL GRANT

Counsel:

Mark Moorcroft and Deidre Bryant, for the Crown

Raymond Gemmill, amicus curiae

HEARD: June 5, 2018

RULINGS ON NCR AND HIGH-RISK ACCUSED APPLICATIONS

Nature of the Applications

[1] Daniel Grant has been found guilty of two counts of attempt murder and one count of aggravated assault. The offences occurred on December 31, 2015 when Mr. Grant stabbed both his mother, Delores Byers, and his stepfather, John Byers. At the request of the Crown, pursuant to the principle in R v. Kienapple, the aggravated assault offence has been conditionally stayed.

[2] With respect to these offences, the Crown has now applied that Mr. Grant should be found not criminally responsible (NCR) on account of mental disorder pursuant to s. 672.34 of the Criminal Code. As the applicant, the Crown bears the onus on a balance of probabilities to prove that when Mr. Grant committed these offences he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts or knowing that his acts were wrong.

[3] In the event of me finding that Mr. Grant is not criminally responsible for these offences, the Crown has made a further application, under s. 672.64(1)(a) of the Criminal Code, that Mr. Grant should be found to be a high-risk accused.

[4] I will first consider the NCR application.

The NCR Application

[5] Dr. Mark Pearce was qualified as an expert in forensic psychiatry and gave viva voce expert testimony before me. In his testimony, Dr. Pearce confirmed the accuracy of his three previous written reports. Dr. Pearce also testified that he had reviewed previous medical records and confirmed his agreement with a previous treating psychiatrist, Dr. McMaster, that Mr. Grant was diagnosed with schizophrenia in 2004 and/or 2005 and that Mr. Grant has had schizophrenia since then.

[6] Dr. Pearce confirmed that schizophrenia is a major mental disorder, which is recognized in law as a disease of the mind.

[7] The uncontradicted evidence of Dr. Pearce was that on December 31, 2015, when Mr. Grant stabbed Delores and John Byers, Daniel Grant was suffering from the major mental illness of schizophrenia. I accept that evidence.

[8] Dr. Pearce also testified and opined that while Mr. Grant appreciated the nature and quality of what he did when stabbing Delores and John Byers, Mr. Grant was of the view that he was morally and legally justified in stabbing both Delores and John Byers.

[9] I am persuaded on a balance of probabilities, by all of the evidence, that when Mr. Grant stabbed Delores and John Byers on December 31, 2015, Mr. Grant’s mental disorder of schizophrenia rendered him incapable at the time of knowing that it was wrong for him to stab and attempt to kill each of Delores Byers and John Byers. This conclusion is supported by the uncontroverted facts and evidence and the expert opinion contained in the reports and testimony of Dr. Pearce. All of that evidence also clearly establishes and I find that Mr. Grant was not thinking rationally when he stabbed Delores and John Byers on December 31, 2015.

[10] For all of these reasons, on all counts of the indictment, Mr. Grant is not criminally responsible on account of mental disorder, for the December 31, 2015 stabbings of Delores and John Byers.

The High-Risk Accused Application

[11] I have found Mr. Grant to be not criminally responsible (NCR) for the current offences. Accordingly, I will now consider the Crown’s application, made under s. 672.64(1)(a) of the Criminal Code, that Mr. Grant should be found to be a high-risk accused. This is a relatively new provision of the Criminal Code. The only case dealing with the high-risk accused legislation that Crown counsel or I could find was a single case from British Columbia, R. v. Schoenborn, 2017 BCSC 1556. Crown counsel also provided an Ontario Review Board decision, Re Carter, [2016] O.R.B.D. 800. I have taken some guidance from these cases.

[12] In order for me to find that Mr. Grant is a high-risk accused, the test that the Crown must prove on a balance of probabilities is set out in s. 672.64(1)(a) of the Criminal Code which provides that the court may find the accused to be a high-risk accused if the following test is satisfied:

first, the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3) of the Criminal Code;

second, the accused was 18 years of age or over at the time of the commission of the offence; and

third, the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life of or safety of another person.

[13] I have found that Mr. Grant is not criminally responsible for these current offences that he committed when he was 61 years old. Accordingly, only the third part of the test needs to be addressed.

[14] S. 672.64(2) of the Criminal Code states that in determining if an accused is a high-risk accused, the court shall consider all relevant evidence and then sets out a list of some evidence that must be considered when making the determination. Those factors include:

(a) the nature and circumstances of the offence;

(b) any pattern of repetitive behaviour of which the offence forms a part;

(c) the accused’s current mental condition;

(d) the past and expected course of the accused’s treatment, including the accused’s willingness to follow treatment; and

(e) the opinions of experts who have examined the accused.

[15] I will consider the evidence and those factors.

The Nature and Circumstances of these Offences

[16] Mr. Grant stabbed his mother and stepfather because his schizophrenia caused him to believe that they had committed wicked acts, including upon his children. Mr. Grant’s schizophrenia caused him to believe that due to this perceived wickedness, God was telling him that Delores and John Byers, among other family members, had to be killed. He had felt this way for some time before December 31, 2015.

[17] There was some planning by Mr. Grant prior to carrying out the December 31, 2015 stabbings. Some time prior to December 31, 2015, he purchased knives to carry out his intended killings. On December 31, 2015, he was living in Peterborough and had to figure out how to get to the Cobourg area where Delores and John Byers lived. Although he is of very modest financial means, he put together sufficient cash to enable him to take a taxi from Peterborough to Cobourg. He made his way by walking and then taking a further taxi to the Legion across the road from the Byers home.

[18] The attacks were very violent. Mr. Grant arrived unexpectedly at the Byers home, late in the evening on December 31, 2015. He plunged a knife with a six inch blade into his mother’s neck. He then went upstairs and attacked his sleeping stepfather. With the same knife, he stabbed John Byers multiple times, perhaps as many as 12 times, in the head and neck. Somehow, John Byers was able to eventually fend off Mr. Grant and chase him from the house.

[19] Both Delores and John Byers bled profusely. They feared that they might bleed to death before help would arrive at their home which is in a rural setting, not located in a town. When help finally arrived, Delores and John Byers were taken by ambulance to the Cobourg Hospital. Soon after their arrival, the doctors knew that both Byers required more specialized care than was available in Cobourg. They were taken by ambulance to St. Michael’s Hospital in Toronto. John Byers was released within a few days. He recovered but still has residual problems because of the stab wounds he suffered. Delores Byers never got out of hospital and died approximately 6 – 7 weeks later.

[20] The December 31, 2015 attacks occurred late on a winter evening when Delores and John Byers had reason to feel safe in their own home. The attacks were unprovoked, without reasonable justification, involved planning, were horrific (possibly brutal), and caused severe, life-threatening injuries to Delores and John Byers who were Mr. Grant’s mother and stepfather.

A Pattern of Repetitive Behaviour

[21] The December 31, 2015 attack was the fourth time over many years that Mr. Grant had come towards or attacked John Byers with a knife while Mr. Byers was in the yard of his home or in his home.

[22] Mr. Grant is now 63 years old. On an occasion when Mr. Grant was 18 or 19 years old, Mr. Byers was working on a car in the yard of the previous Byers home in Cobourg. Mr. Grant approached him in a threatening manner with a knife and said, “I don’t like you.” Mr. Byers picked up a stick of wood and Mr. Grant backed off. The incident was not reported to the police.

[23] In the late 1970’s, a few years after the first incident, Mr. Grant left Ontario and moved to Alberta where he lived for many years. He returned to Ontario in the early 2000’s and began living in the Grafton home of Delores and John Byers. This is where the further knife incidents occurred. In 2004, Mr. Grant became psychiatrically ill while living in that home.

[24] The second knife incident occurred in the Grafton home of the Byers on an evening in 2005. Mr. Grant was mumbling and carrying a knife with a seven or eight inch blade. He chased John Byers around the kitchen table two or three times. At one point, Mr., Grant gestured with the knife towards Mr. Byers’s throat. The incident ended when Mr. Byers punched Mr. Grant in the chest. Mr. Grant was mumbling something about his children. Delores Byers called the police. Charges were laid against Mr. Grant for which he was found not criminally responsible. He was a patient of Ontario Shores hospital for eight years as a result of this incident.

[25] The third previous knife incident occurred in April 2015. Early one morning, John Byers went outside to feed the cats. Mr. Grant was mumbling about his children and approached Mr. Byers carrying a knife with an eight inch blade. Mr. Grant thrust the knife towards Mr. Byers’s stomach. Mr. Byers immediately raised his fist in defiance. Police were called and charges were laid. Initially, Mr. Grant was acquitted on charges relating to the April 2015 incident. However, he was made subject to a peace bond that was still in place on December 31, 2015. That peace bond restricted him from going to the Byers home in Grafton and from having contact with Mr. Byers. The acquittal was overturned on appeal. Mr. Grant was found guilty on the re-trial and on August 21, 2017 he was found not criminally responsible (NCR) for the April 2015 offences. On October 3, 2017, an Ontario Review Board (ORB) hearing followed that NCR finding.

[26] The December 31, 2015 attacks were the fourth in a series of knife attacks or attempted attacks by Mr. Grant upon John Byers in or in the yard of a Byers home. All of the attacks were initiated by Mr. Grant without provocation or justification, except for perhaps Mr. Grant’s delusional beliefs that the attacks were necessary. On the previous occasions, Mr. Byers was able to deter or fend off Mr. Grant without injury. On December 31, 2015, Mr. Byers was attacked as he slept. During each of the last three attacks, Mr. Grant mumbled something about his children.

[27] The December 31, 2015 attacks were only the most recent in a series of very similar acts of Mr. Grant attending at the Byers home and using a knife in the hope of killing his stepfather, John Byers. As I stated, the only distinguishing factors in the December 31, 2015 attack were that Mr. Grant also attacked and stabbed his mother, Delores Byers, and that he attacked Mr. Byers while he was sleeping. In at least the 2005, April 2015, and December 31, 2015 attacks, Mr. Grant’s schizophrenia was a contributing factor to his acts and his intention to kill John Byers. The April and December 2015 attacks occurred after Mr. Grant had ceased taking the medication that helped control his schizophrenia. Mr. Grant stopped taking his medication because he thought that he was not suffering from mental illness and did not need to take the medication.

Mr. Grant’s Current Mental Condition

[28] Since mid-late January 2016, Mr. Grant has been a patient at the Whitby hospital known as Ontario Shores Centre for Mental Health Sciences. Evidence of Mr. Grant’s current mental condition was provided by Dr. Mark Pearce. Dr. Pearce has been Mr. Grant’s treating psychiatrist at Ontario Shores since late January 2016. He has seen Mr. Grant approximately every two weeks since then. At this hearing, Dr. Pearce was qualified as an expert in forensic psychiatry entitled to give opinion evidence on criminal responsibility and any other psychiatric issues related to Mr. Grant.

[29] In addition to his testimony, three reports of Dr. Pearce were made exhibits; the May 24, 2016 report prepared for the Crown’s NCR application with respect to Mr. Grant’s offences relating to his April 2015 attack on John Byers; the July 29, 2016 report prepared in contemplation of the Crown’s NCR application relating to Mr. Grant’s current offences; and the September 26, 2017 report prepared for the October 3, 2017 Ontario Review Board hearing relating to the April 2015 attack on John Byers.

[30] Dr. Pearce testified that since 2005, Mr. Grant has had treatment-resistant schizophrenia and that, in all probability, Mr. Grant will continue to have schizophrenia for the rest of his life.

[31] Dr. Pearce’s evidence was that Mr. Grant still suffers from the same auditory hallucinations and delusional beliefs that he had at the time of the December 31, 2015 attacks and which gave rise to those attacks. However, Dr. Pearce testified that, because of medication, he believed that Mr. Grant’s auditory hallucinations and delusions are less intense than at the time of the December 31, 2015 attacks.

[32] Dr. Pearce also testified that Mr. Grant is calm, pleasant and cooperative with staff at the hospital, and generally keeps to himself spending a lot of time reading and studying the Bible. However, Dr. Pearce also testified that Mr. Grant continues to believe that he is not mentally ill and does not require treatment, including medication. Although he initially had to be forced to take his current medication, he has since taken that medication without the need for force. However, he believes that the medication has no effect on him

[33] Mr. Grant states that he is merely a devout Christian with no special mission and no special connection to God. He is guarded about his delusional beliefs. He acknowledges that he continues to have auditory hallucinations. He is guarded about revealing much about them. Some of these auditory hallucinations are of his niece saying “vile” things about him. The hallucinations have a sexual theme. He refers to the hallucinations as “frequencies”, a word that he frequently used in his police statements as justifying the December 31, 2015 attacks and further attacks on other relatives. He believes that his niece uses technology to communicate with him through these frequencies. Again, much like he stated in police statements after the December 31, 2015 attacks.

[34] Since the attacks, Mr. Grant has exhibited no remorse whatsoever and has stated that he hoped that both Delores and John Byers would die and that they deserved to die. There is no evidence that these beliefs of Mr. Grant have changed despite the fact that it is now approximately two and one-half years since the December 31, 2015 attacks and notwithstanding treatment, including medication, at Ontario Shores.

[35] Dr. Pearce’s evidence was that “If Mr. Grant is to reoffend, it will likely involve non-adherence to his medication, possible substance use, worsening of his delusions and auditory hallucinations, and a violent attack, most likely against a member of his family, under the belief that he is acting in accordance with God’s will and righteousness.”[^1]

[36] Dr. Pearce is of the opinion and advised that Mr. Grant’s treatment team was of the unanimous opinion that Mr. Grant meets the threshold for significant threat to the safety of the public, as defined in the Criminal Code of Canada.[^2]

[37] Mr. Grant’s current treatment is a drug called Invega, an anti-psychotic medication. Mr. Grant does not participate in individual or group counselling. As stated above, Mr. Grant believes that he is not mentally ill and requires no treatment. Therefore, he does not participate in counselling. He takes the medication although he believes he does not need it and that it does not affect him.

[38] As stated above, in August 2005, Mr. Grant was found NCR with respect to charges relating to a previous knife assault on John Byers. After that NCR finding, Mr. Grant was a patient at Ontario Shores for eight years. He was a resident in the hospital until October 2009 when he was allowed to live in a supervised residence in Oshawa.

[39] Initially at Ontario Shores, Mr. Grant acknowledge hearing voices from machines and technology. He had little insight into his illness and his NCR status. He believed that his family was out to get him. He isolated himself, spending time reading the Bible.[^3]

[40] In 2005, he was prescribed anti-psychotic medication which appeared to help somewhat. In 2008, he was prescribed anti-depressant medication and his auditory hallucinations seemed to end. However, he continued to display some negative signs of his schizophrenia.

[41] Mr. Grant was absolutely discharged by the ORB on July 2, 2013. Very soon after that, prior to December 17, 2013, he ceased taking his medications. He reported no hallucinations and said that he would obtain medication from his family doctor if “the voices came back.”

[42] Mr. Grant’s symptoms returned. By January 2015, he was increasingly angry and threatening towards a sister. He was not taking his medication. In April 2015, he approached and threatened John Byers with a knife, resulting in the charges that led to an eventual NCR finding on August 21, 2017.

[43] As noted earlier, Mr. Grant was originally acquitted on offences arising from the April 2015 incident. That acquittal was on August 21, 2015. From that date until his arrest on December 31, 2015, it is believed that Mr. Grant lived in Peterborough, primarily in a homeless shelter for men. He was not taking medication.

[44] Dr. Pearce testified that the future treatment plan for Mr. Grant is to put him on Clozapine, a more powerful anti-psychotic drug. Dr. Pearce also testified that group and individual counselling would also be helpful. Dr. Pearce testified that Mr. Grant requires in-hospital treatment for at least a couple of years. Dr. Pearce testified that Mr. Grant will need very close psychiatric treatment, possibly for the rest of his life.

[45] However, Mr. Grant continues to have little, if any, insight into his mental illness. He thinks that he is not mentally ill and does not require treatment.

[46] Clozapine is a very powerful anti-psychotic drug that can have very significant, life-threatening side-effects. Mr. Grant must consent to taking it and must do so voluntarily. Clozapine has already been offered to Mr. Grant at least every month since the fall of 2017 and he has declined it, saying “maybe later.” Dr. Pearce is unsure of why Mr. Grant has declined to take Clozapine. But, Dr. Pearce believes that it might be due to the fact that Mr. Grant might feel he is in legal limbo awaiting the outcome of this trial.

[47] Mr. Grant continues to be uninterested in either individual or group counselling.

[48] Dr. Pearce testified that he believes that Mr. Grant might agree to Clozapine and/or counselling after this proceeding is concluded.

[49] However, in response to one of my questions, Dr. Pearce testified that if Mr. Grant discontinued his medications, then, within a month or two, he would be an imminent danger of causing serious bodily harm to others.

Final Analysis

[50] Despite many years of psychiatric treatment, primarily being medications, Mr. Grant:

• continues to believe that he is not mentally ill;
• continues to believe that he does not require treatment or medication;
• continues to believe that the medication that he takes does nothing for him;
• continues to suffer auditory hallucinations and delusions; and
• continues to have the same beliefs about John Byers and other family members being wicked and having done things that deserve punishment.

[51] Dr. Pearce’s evidence that Mr. Grant’s auditory hallucinations and delusions are less intense is based on Mr. Grant’s self-reporting. I have concerns because Mr. Grant is very guarded about discussing the contents and extent of his auditory hallucinations and his delusions. Mr. Grant is a man of some intelligence. I have significant concerns about his underreporting in the hope of getting an eventual discharge into the community as he obtained with respect to the 2005 incident.

[52] After his December 2015 arrest and eventual hospitalization at Ontario Shores, Mr. Grant initially refused to take prescribed medication and it had to be forced upon him. He does not believe that the medication helps him. I am satisfied that Mr. Grant is only now taking the medication voluntarily because he believes that it does not affect him and he knows that if he resists, force will be used to inject him with the medication.

[53] Mr. Grant has only said that he might consider the more powerful medication, Clozapine. Given his lack of insight, it would be speculative to assume that he will agree to Clozapine in the future. It is also speculative to think that Mr. Grant will agree to group and/or individual counselling in the future.

[54] Mr. Grant discontinued his medications within a very short time of being absolutely discharged in 2013. Given his lack of insight and continuing auditory delusions and beliefs, I am satisfied that he would do the same if he had the opportunity to do so in the future.

[55] Between the August 2015 acquittal and December 31, 2015, Mr. Grant was living in the community. Mr. Grant did not resume medications or pursue any treatment, notwithstanding that his auditory hallucinations and his delusions had returned. I am not satisfied that, in the future, he would take steps to resume medication or pursue treatment if he had the choice to do either or both.

[56] In 2013, Mr. Grant promised to resume his medications if the auditory hallucinations returned. They returned, and he did not resume his medications.

[57] Over the years, when not in the hospital or taking his medications, Mr. Grant has repeatedly attempted to use knives to cause serious bodily harm to John Byers and he finally succeeded in doing so on December 31, 2015.

[58] Finally, I find that if Mr. Grant discontinued his medications, then, within a month or two, he would be an imminent danger of causing serious bodily harm to others, especially John Byers and other family members.

[59] For all of these reasons, I find that there is a very significant probability and an unacceptably high level of risk of Mr. Grant:

• discontinuing all medication and treatment at the earliest possible opportunity; and
• violently causing very significant bodily harm or death to John Byers and/or other family members.

[60] Mr. Grant is an adult whose current offences are serious personal injury offences as defined in s. 672.81(3) of the Criminal Code. I have found and I am satisfied that there is a substantial likelihood that Mr. Grant will use violence that could endanger the life or safety of another person, in particular John Byers and/or other family members. The Crown has met the test required in s. 672.64(1)(a) of the Criminal Code.

[61] Accordingly, I find Mr. Grant to be a high-risk accused.

Summary and Order

[62] For all of these reasons;

1. pursuant to s. 672.34 of the Criminal Code, with respect to all counts of the indictment, Mr. Grant is not criminally responsible on account of mental disorder for the attempted murders of Delores and John Byers that he committed on December 31, 2015; and

2. Mr. Grant is a high-risk accused as defined in 672.64(1)(a) of the Criminal Code.

[63] In these circumstances, it is required by s. 672.64(3) of the Criminal Code and I hereby order that Mr. Grant shall be detained in custody in a hospital subject to such conditions as the court or Ontario Review Board considers appropriate, but Mr. Grant shall not be absent from the hospital unless:

a. it is appropriate, in the opinion of the person in charge of the hospital, for Mr. Grant to be absent from the hospital for medical reasons or for any purpose that is necessary for Mr. Grant’s treatment, if Mr. Grant is escorted by a person who is authorized by the person in charge of the hospital; and

b. a structured plan has been prepared to address any risk related to Mr. Grant’s absence and, as a result, ensuring that absence will not present an undue risk to the public.

[64] Lastly, as Mr. Grant committed primary designated offences, he shall provide a sample of his DNA for the national DNA bank.

Justice D. Salmers

Released: June 7, 2018

[^1]: Dr Pearce’s September 26, 2017 report, pg 14. [^2]: Ibid. [^3]: Dr. Pearce’s May 24, 2016 report, pg 6.