COURT FILE NO.: CR-16-10019 DATE: 2019/04/23 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – GASTON NICHOLAS Accused
COUNSEL: John Semenoff, for the Respondent Crown Michael Swinwood, for the Accused
HEARD: October 29 and 30, 2018, followed by written submissions
REASONS FOR DECISION SECTION 16 NCR HEARING RATUSHNY J.
1. Overview
[1] Mr. Nicholas is charged with two counts of arson. He has admitted, pursuant to an agreed statement of facts, to setting fire to two homes on February 28, 2016.
[2] After the fires, Mr. Nicholas was assessed by a number of medical personnel: by Dr. Dufour, a forensic psychiatrist whose report is dated August 16, 2016; by Dr. Carrier, a geriatric psychiatrist whose report is dated November 7, 2016; by Dr. Van Gijseghem, a forensic psychologist whose reports are dated May 15, 2017, November 7, 2017, and October 10, 2018 (the latter commenting on Dr. Watts’ conclusions); and by Dr. Watts, a forensic psychiatrist whose report is dated March 28, 2018. All of these reports have been admitted as evidence before the court. Dr. Van Gijseghem and Dr. Watts have each testified.
[3] The issue is whether Mr. Nicholas has established, on a balance of probabilities, that at the time of setting the fires he was not criminally responsible (“NCR”) for his actions due to suffering from a mental disorder.
[4] The governing provision is s. 16 of the Criminal Code, R.S.C. 1985, c. C-46:
Defence of mental disorder
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.
Presumption
(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.
Burden of proof
(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.
R.S., 1985, c. C-46, s. 16; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 43, s. 2.
[5] Pursuant to s. 16, therefore, Mr. Nicholas is presumed not to have been suffering from a mental disorder so as to be exempt from criminal responsibility for the two alleged arsons, unless he has established on a balance of probabilities that:
- at the time of the alleged offences he was suffering from a mental disorder; AND
- the mental disorder rendered him incapable of appreciating the nature and quality of the act OR that the mental disorder rendered him incapable of knowing that the act was wrong.
[6] It is the position of the defence that because of possible paranoia or delusions and diminished intelligence on account of vascular dementia, Mr. Nicholas lacked the capacity to appreciate the nature and quality of his acts.
[7] It is the Crown’s position that, while the medical evidence indicates Mr. Nicholas was suffering from some degree of vascular dementia able to be characterized as a mental disorder impairing his cognitive functioning at the time of the arsons, his actions and words demonstrate he knew he was setting the homes on fire; he knew this would lead to their burning; he appreciated, therefore, the nature and quality of what he was doing, and there is no evidence before the court to support the proposition that he did not know his actions were morally wrong.
[8] I have concluded on the evidence before me that Mr. Nicholas has not established on a balance of probabilities that he was NCR when he set the two fires. In other words, I conclude that Mr. Nicholas has not made out the defence of NCR and is therefore not exempt from criminal responsibility for the arsons.
[9] I agree, as the Crown has stated, that the evidence from the medical personnel and the reviewing psychiatrists establishes that Mr. Nicholas suffered from some degree of vascular dementia when he set the fires. However, the evidence indicates that he was still high functioning at that time and I have concluded that his words and actions shortly before and after his acts of arson clearly indicate he “appreciated the nature and quality of the acts” and knew they were morally wrong. As he himself characterized his actions to Dr. Dufour, he acted as he did “in a moment of miscalculated anger.”
[10] My reasons follow.
2. The Accused’s Words and Actions at the Time of the Fires
[11] Mr. Nicholas was 78 years of age when he deliberately set fire to the two houses.
[12] Around 9 a.m. on February 28, 2016, three different persons observed that the first of the houses (the “Walkley House”) was on fire. One saw the fire when she was driving on Walkley Road and called 911. Another saw Mr. Nicholas walking towards his vehicle. Mr. Nicholas spoke to her and told her there was a fire in the Walkley House and he had called 911. He never did call 911. The third person was the neighbor who lived next door to the Walkley House. She observed Mr. Nicholas walk out of the burning house, get into his motor vehicle, and drive away. As he drove away, a portion of the structure fell onto his vehicle but he did not stop, and instead, continued driving.
[13] Around 3:30 p.m. that same day, a fire was reported at the second house (the “Leitrim House”).
[14] Mr. Nicholas had rented the Leitrim House for over 20 years and his lease was scheduled to terminate on March 1, 2016. He and his wife, Joanne Charron, had rented the Walkley House as of January 1, 2016 and were slowly moving into it.
[15] Fire investigators concluded that the origin of the fire at the Walkley House was an open flame applied through human activity and the first fuel ignited was volatile ignitable liquid vapor. Similarly, for the Leitrim House, they concluded that there was an ignitable liquid on the carpet and the fire was determined to be a result of human activity.
[16] After setting fire to the Leitrim House, Mr. Nicholas was stopped that same day while he was driving on a highway near Ottawa. He was arrested for the arsons after a police chase. He had extensive burnt hair on the back and the front of his head, including his eyebrows, along with multiple burns and skin damage on his hands. He had phoned his wife while driving, telling her that he would see her in heaven.
[17] Mr. Nicholas was admitted to hospital that evening and the hospital’s records indicate “he made numerous suicidal statements in the presence of the examining physician related to his shame from his recent actions.”
[18] Mr. Nicholas told the hospital’s psychiatry resident that evening that he set one of the houses on fire by pouring gasoline everywhere and setting the gasoline on fire with a match and then driving to the second house and again pouring gasoline everywhere and lighting it on fire. He also told the psychiatry resident that he had set the fire at the Leitrim House “to get back at” his landlord for terminating his lease, saying “he doesn’t get to win this time” and that he was angry with his new landlord at the Walkley House because the landlord was “agitated and rude”. He told the resident he began driving after the second house burning to “clear his head” and “there is no point to life anymore, not after what I just did.”
[19] Ms. Charron testified that before the fires, Mr. Nicholas had become increasingly lethargic, sad, and also increasingly angry with the landlord of the Leitrim House. She told the psychiatry resident on the night of the fires that while Mr. Nicholas had occasionally been forgetting small things like keys, he had never forgotten the date nor had he been as disorganized as he was that night.
[20] Dr. Dufour’s report, made approximately six months after the fires, references a March 2, 2016 statement by Mr. Nicholas to police where he claimed to be ashamed of what had happened, that he was even lucky, as he had planned to die in the fire. According to the statement, Mr. Nicholas said, “What I did was stupid.” Ms. Charron told Dr. Dufour that Mr. Nicholas had lived alone in an apartment since the fires and his level of functioning seemed adequate. He could deal with his finances, take his medications, and prepare meals.
[21] In Dr. Carrier’s report, made approximately 8 months after the fires, of Mr. Nicholas, she states, “Today he is remorseful in that he let himself down and he feels he has let others down by giving the wrong example on how to manage a difficult situation but remains quite entrenched in his paranoia.”
[22] In Dr. Van Gijseghem’s report, made approximately 15 months after the fires, he states that Mr. Nicholas acknowledged he had wanted to burn both houses with himself inside so nothing of himself would be left over. Mr. Nicholas told him that after certain actions by his landlord of the Leitrim House, he “saw red”, flew into a rage, lost his equilibrium, and decided to commit suicide.
[23] In Dr. Watts’ report, made 24 months after the fires, he says that Mr. Nicholas told him he set fire to the Leitrim House because he wanted the landlord to lose as much as he felt he had lost, stating “I lost my head, how with his intelligence could he have done this to me? I got mad.” Dr. Watts reviewed medical records from the Geriatric Psychiatry Community Services of Ottawa (“GPCSO”) where Mr. Nicholas had been referred after his arrest on February 28, 2016. Mr. Nicholas described feeling remorse for the events of that day but said he had amnesia for them. He was assessed by the GPCSO in October 2016 as being independent with regard to all of his activities of daily living including bathing, showering, dressing, grooming, eating, and toileting. He was reported as independent with regard to his finances, shopping on his own, using the telephone, taking medications appropriately, and maintaining and doing laundry and housekeeping.
3. Analysis of Mental Disorder under Section 16
Meaning of “Mental Disorder”
[24] Section 2 of the Criminal Code defines “mental disorder” as a “disease of the mind”. This has been interpreted broadly for the purposes of a s. 16 analysis, as being “any illness, disorder or abnormal condition which impairs the human mind and its functioning.” It is more fully stated by Dickson J. in Cooper v. The Queen (1979), [1980] 1 S.C.R. 1149, at p. 1159, as follows:
In summary, one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.
[25] As Dickson J. emphasized in Cooper, at p. 1162, “The legally relevant time [for a s. 16 analysis] is the time when the act was committed.”
[26] As noted by the Ontario Court of Appeal in R. v. Dobson, 2018 ONCA 589, 48 C.R. (7th) 410, at para. 4, a case where the trial judge had differing expert diagnoses of the appellant’s mental disorder as being either schizophrenia and schizotypal personality disorder, “for the purposes of determining whether the appellant suffered from a mental disorder under s. 16, the exact diagnosis was not crucial.”
[27] For Mr. Nicholas, the expert diagnoses as to whether he suffered from a mental disorder at the time of the fires also differ.
Psychiatric and Psychological Diagnoses of Mr. Nicholas
[28] In his August 2016 report, Dr. Dufour assessed Mr. Nicholas as having possible vascular dementia of light intensity and possible adjustment problems with depressive tendencies, along with the results from one of the tests suggesting “a strong tendency on the part of Mr. Nicholas to simulate [fake] his memory problem.” Dr. Dufour commented at p. 15 of his report:
[It] is difficult to offer a conclusive diagnosis at this time. Our evaluation notes a tendency to exaggerate certain symptoms and his level of cooperation is also variable. His discourse presents several incoherencies. On one hand he says he cannot remember the events at the time of the incidents and on the other hand he clearly relates details [of] the accomplishments in his life. These incoherent statements are also noticed by the psychiatrist who was treating him – Dr. Saul – after his admission to hospital immediately after the events. At that moment he revealed the details to the doctor in the emergency room concerning his actions involving the fires. The next day he did not remember any of these details, a fact which has raised suspicion of simulation (faking bad) in the mind of Dr. Saul.
[29] In her November 2016 report, Dr. Carriere, as part of the GPCSO assessment of Mr. Nicholas, said, “The working diagnosis is of a major neurocognitive disorder most likely vascular cognitive impairment with associated neuropsychiatric symptoms characterized by psychosis with delusions of persecution.”
[30] In his May 2017 report, Dr. Van Gijseghem diagnosed Mr. Nicholas as “very probably suffering from Paranoid Personality Disorder (according to our objective and subjective evaluation). We also observed a very important deterioration of his cognitive abilities. The extreme narcissism of Nicholas is very probably compatible with his paranoia.” In his November 2017 report, Dr. Van Gijseghem added, “To be more specific: even if the presence of a Personality disorder (Paranoid or other) is in most cases not enough to question responsibility, in this particular case there is little doubt about Dementia.”
[31] In his March 2018 report, Dr. Watts reviewed all of the prior medical records including the expert opinion reports on Mr. Nicholas and diagnosed Mr. Nicholas, at pp. 24-26, and 39, as suffering from “vascular dementia currently of moderate severity” and having narcissistic personality traits based on his “pattern of grandiosity and need for admiration over his adult life.” Dr. Watts considered whether Mr. Nicholas showed evidence of a psychotic illness because of his beliefs about the landlord of the Leitrim House, and said he did not make such a diagnosis and that Mr. Nicholas had never exhibited symptoms of a major psychotic illness over his lifetime. Dr. Watts concluded at p. 39:
It is my opinion with reasonable medical certainty that although Mr. Nicholas was suffering from the very early stages of a vascular form of dementia and was experiencing significant anxiety and frustration related to the theft of his belongings, his impending eviction and the move to his new home on February 28, 2016, he was not suffering from a psychotic mental illness or condition that would generally qualify as a mental disorder under Section 16 of the Criminal Code of Canada. Mr. Nicholas’ cognitive decline was in early stages and was not accompanied by functional decline in ADL’s [Activities of Daily Living] or IADL’s [Instrumental Activities of Daily Living] according to the person closest to him who was best able to observe any such functional difficulties. Although he was expressing significant distress and alleging several persecutions by his landlord … the basis for these beliefs was founded in reality, particularly the behaviours that upset Mr. Nicholas the most (his eviction and the sale of his belongings without his permission). By definition, the foundation of his beliefs about [the landlord] was therefore not irrational and non-psychotic.
It is also worth noting that Ms. Charron informed Dr. Dufour in 2016, that Mr. Nicholas has long exhibited certain narcissistic personality traits and in particular a tendency to take offense easily and react explosive(ly), he does not do things lightly (“il ne fait pas dans la dentelle”).
[32] In his October 2018 report, Dr. Van Gijseghem reviewed the diagnoses referred to above and said:
[W]e strongly believe that Mr. Nicholas’ cognitive deficiency (Dr. Van Gijseghem’s March 2017 testing of Mr. Nicholas had indicated he suffered from serious cognitive impairment), should be taken into account when evaluating responsibility… We are in the presence of a conjunction of serious mental problems whether they reach a clinical or a subclinical level. Every evaluator agreed upon Dementia (whether it was called so or not); the two psychologists using psychometrics agree on serious cognitive deficiency. Already, both these conditions seriously undermine judgment, discretional and logical thinking. In our own conclusions we added paranoid thinking (as did Dr. Carriere…). Even if one does not need this addition in order to question responsibility in this particular case, it can only render the non-criminal responsibility opinion more credible.
Conclusion Regarding the Existence of a Mental Disorder
[33] Of the expert opinion reports before the court, it is the reports from Drs. Dufour and Watts (August 2016 and March 2018, respectively) that are the most thorough and complete and to which I assign the most weight on the issue of the existence of a mental disorder at the time of the fires. Drs. Dufour and Watts each review multitudinous sources of information about Mr. Nicholas. They focus on records and information about Mr. Nicholas, at the critical time involved in any s. 16 assessment, for the existence of a mental disorder; namely, at the time of the fires in February 2016.
[34] The reports from Drs. Carriere and Van Gijseghem are less detailed, perhaps through necessity, but they appear to be largely based on Mr. Nicholas’ own accounts to them of his actions. They express little if any concern as to the “strong tendency on the part of Mr. Nicholas to simulate [fake] his memory problem” referred to by both Drs. Dufour and Watts, and how that reported tendency might affect their diagnostic conclusions. In his May 2017 report, Dr. Van Gijseghem simply dismissed the idea of simulation on the basis that his testing had indicated Mr. Nicholas had not simulated his intellectual deficiency.
[35] Whether Mr. Nicholas was or was not suffering from a paranoid personality disorder (as diagnosed by Drs. Carrier and Van Gijseghem but not by Drs. Dufour and Watts), it is agreed amongst all the experts and confirmed by the testimony of Ms. Charron, that on February 28, 2016, Mr. Nicholas was suffering from a degree of dementia. Dr. Dufour diagnosed it as “vascular dementia of light intensity”. Dr. Watts expressed it as “the very early stages of a vascular form of dementia.” Dr. Van Gijseghem declined to opine on the degree of Mr. Nicholas’ dementia.
[36] In March 2018, Dr. Watts diagnosed Mr. Nicholas as having “shown a decline in his cognitive abilities beyond what would be expected for his age, educational level and work experience.” I understand, as Dr. Watts has stated in his report, at pp. 24-25, that dementia causes, according to its degree, a decline in cognitive abilities and later, in functional abilities. I conclude that this, as stated in Cooper at p. 1159, can be regarded as a “disorder or abnormal condition which impairs the human mind and its functioning” and, therefore, can be considered as a mental disorder for the purposes of s. 16.
[37] In contrast, I have no evidence before me as to how a diagnosis of paranoid personality disorder could impair the human mind and its functioning. In any event, I accept Dr. Watts’ opinions, at pp. 25-26 of his report, that Mr. Nicholas has never exhibited symptoms of a major psychotic illness over his lifetime or criteria of a paranoid personality disorder. Dr. Watts explained Mr. Nicholas’ preoccupations with his Leitrim House landlord as being reality based, non-bizarre, and plausible, but not consistently held over the 20 years of their relationship.
[38] In all of Mr. Nicholas’ circumstances at the time of the fires in 2016, involving significant anxiety and frustration related to his residences, together with his observed tendency to sometimes simulate a memory problem, it is difficult to definitively diagnose the degree of his dementia at that time. However, I understand this to be unnecessary when undertaking a s. 16 analysis, where the issue of the presence of a mental disorder is relevant only to the issue of whether it has rendered the person “incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”. In other words, any consideration of the degree of the mental disorder found to be present is delineated by and only relevant to a consideration of these two branches of the NCR test in s. 16.
[39] To summarize, therefore, I find that at the time of the fires, Mr. Nicholas was suffering from some degree of mental disorder in the form of dementia that was in its early stages.
[40] It is the two branches of the NCR test in s. 16 that direct the further analysis of the effect of his dementia on his cognitive functioning.
4. Whether Mr. Nicholas’ Dementia Rendered Him Incapable of Appreciating the Nature and Quality of his Actions on February 28, 2016
[41] This analysis involves a consideration of the words and actions of Mr. Nicholas at the time he set the fires. They have been reviewed before.
[42] I conclude they clearly indicate that Mr. Nicholas “appreciated”, as opposed to simply “knowing” (Cooper, at p. 1160), what he was doing, in that he understood he was deliberately lighting fires in the houses and that they would burn as a consequence. He planned to set the fires. He obtained a quantity of gasoline, threw it around, and lit the gasoline with matches at each of the houses. He deliberately targeted the two houses out of anger with each of the landlords. He was functioning independently at the time, including doing his own finances and organizing his move to the Walkley House. He knew the Walkley House was burning when he left it as it was obvious, and he nonetheless got into his vehicle and falsely told the neighbour he had called 911. He left the scene of the burning Walkley House even after a portion of it fell on his vehicle and he was able, that afternoon, to drive to the Leitrim House and similarly set it on fire. He suffered extensive burns to his body from his lighting of the gasoline. After the Leitrim House fire, he was able to drive his vehicle on a highway and contemplate what he was going to do with his life. He had initially planned to die in the Leitrim House fire. Notwithstanding that at times he claimed to have no memory of what had happened, on the same day of the fires, he told the psychiatry resident at the hospital what he had done and that he had set the fires out of anger.
[43] I agree with the Crown that Dr. Van Gijseghem’s report discounts these words and actions by placing considerable weight on intellectual testing carried out months later, indicating Mr. Nicholas suffered from “serious cognitive impairment”, when there is no evidentiary or legal basis to discount Mr. Nicholas’ words and actions at the time of the arsons.
[44] I conclude, from these words and actions, that at the time of the fires, Mr. Nicholas’ dementia did not render him incapable of appreciating the nature and quality of his lighting the fires in the two houses as stated in s. 16.
5. Whether Mr. Nicholas’ Dementia Rendered Him Incapable of Knowing that his Actions on February 28, 2016 were Wrong
[45] In Dobson, the Ontario Court of Appeal considered the meaning of “wrong” in s. 16 and concluded, at para. 24:
[A]n accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.
[46] Again, this analysis involves a consideration of the words and actions of Mr. Nicholas, although for this branch for a somewhat broader period of time around the setting of the houses on fire. They have been reviewed before.
[47] At the time of the arsons, Mr. Nicholas falsely told a neighbour that he had called 911. He fled the scene of each of the fires. He wanted to commit suicide and expressed shame shortly after his arrest and at the hospital, when he told the psychiatric staff “there is no point to life anymore, not after what I just did.”
[48] I conclude that these words and actions at the time of the fires indicate Mr. Nicholas’ dementia did not render him incapable of knowing that his acts were wrong.
[49] I further conclude from these words and actions that Mr. Nicholas clearly regarded his actions as being morally wrong at the time and knew then, even at his early stage of dementia, that society regarded his setting the fires as morally wrong. While he might have temporarily and impulsively thought of his acts as being justified because of his anger with the landlords, his words and actions indicate he always knew that setting fire to the houses was morally wrong as measured against societal standards (Dobson, at para. 23).
6. Expert Opinions on Criminal Responsibility
[50] Drs. Dufour and Watts each concluded in their reports that on February 28, 2016, Mr. Nicholas did not satisfy the criteria for an NCR defence. They referred, in large part, to the acts and words from Mr. Nicholas as reviewed above, and I accept their analysis as appropriate.
[51] Dr. Van Gijseghem initially opined in May 2017, that Mr. Nicholas, due to the diagnosis of paranoid personality disorder and declining cognition, had lost “the ability to distinguish good from bad” and that “the probability is very great that Mr. Nicholas is not criminally responsible for these actions.” In his November 2017 report, after being asked to expand on his NCR opinion, he attributed it to the presence of dementia and Mr. Nicholas’ functioning cognitively at the lowest level in the general population. In his October 2018 report, he reaffirmed his opinion, indicating that dementia and serious cognitive deficiency “seriously undermine judgment, discretional and logical thinking”.
[52] While I understand Dr. Van Gijseghem’s conclusion, it is not directed toward a s. 16 analysis regarding the two branches of the test. He has not connected his diagnoses of dementia and serious cognitive deficiencies to Mr. Nicholas’ acts and words at the time of the fires as they impact on the requirements of s. 16. As a consequence, I cannot accept his analysis regarding NCR as appropriate.
7. Conclusion
[53] It is for these reasons, I find that when Mr. Nicholas set the fires, he suffered from a mental disorder in the form of the early stages of dementia. However, his dementia at that time did not exempt him from criminal responsibility because he appreciated the nature and quality of his acts of arson and knew they were morally wrong.
[54] I conclude that Mr. Nicholas has not established on a balance of probabilities that he has an NCR defence under s. 16.
[55] I find Mr. Nicholas criminally responsible for and guilty of each arson offence as charged.
The Honourable Madam Justice Ratushny
Released: April 23, 2019
COURT FILE NO.: CR-16-10019 DATE: 2019/04/23 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – GASTON NICHOLAS Accused REASONS FOR DECISION SECTION 16 NCR HEARING Madam Justice Lynn Ratushny