Background:

[1] Mr. Hanssen represented himself at his 13-day jury trial where he was acquitted of attempt to commit arson and convicted of mischief.

[2] The mischief conviction relates to an incident on November 21, 2018. After the finding of guilt on the mischief count, the Crown applied pursuant to s. 672.11(b) of the Criminal Code, R.S.C. 1985, c. C-46, for a NCR assessment to determine whether Mr. Hanssen is not criminally responsible by virtue of s. 16(1) of the Code.

[3] Mr. Hanssen opposed the application. The Crown relied on Mr. Hanssen’s arguments made during pretrial motions, his evidence at trial, a psychiatric report prepared after an assessment by Dr. Gray in May 2019, and a statement Mr. Hanssen gave when he was arrested for burning down a Wendy’s restaurant on Carling Avenue one week after being charged with the offences that were the subject of this trial.

[4] For the reasons set out below, the Crown’s application is granted.

Legal Test:

[5] An order for an assessment under s. 672.11(b) does not require that there be reasonable grounds to believe that the accused is actually exempt from criminal liability, only that there be reasonable grounds to believe that further evidence of the accused’s mental condition is necessary to determine whether the accused is exempt from criminal liability: R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135, at para. 34.

[6] Where the Crown attempts to invoke the procedure, s. 672.12(3) is applicable:

Where the prosecutor applies for an assessment in order to determine whether the accused was suffering from a mental disorder at the time of the offence so as to be exempt from criminal responsibility, the court may only order the assessment if

(a) the accused puts his or her mental capacity for criminal intent into issue; or

(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that the accused is criminally responsible for the alleged offence, on account of mental disorder.

[7] Parliament has made it more difficult for the Crown to obtain an assessment order when the accused person does not place his or her mental condition in issue, as Trotter J., as he then was, noted in R. v. John Doe, 2011 ONSC 92, 266 C.C.C. (3d) 123, at para. 34.

[8] The assessment provisions under Part XX.1 must be approached with caution, especially when the Crown seeks to rely upon them. An assessment under Part XX.1 is the first step in what might ultimately result in a severe restriction of Mr. Hanssen’s liberty.

[9] This case is unlike the case of Doe, as in that case there was no evidence before the court that would permit the inference that there were reasonable grounds to believe that an assessment order should have been made on the s. 16 issue.

[10] In Doe, the court found that even if the Crown was able to establish the precondition for the assessment, the Crown could not establish that a mental disorder rendered the accused incapable of appreciating the nature and quality of his conduct, or knowing that his conduct was wrong at the time of the offence.

[11] Trotter J. held that even if he were prepared to make the necessary inferences from the record before him that there were reasonable grounds to believe that Mr. Doe suffered from a mental disorder at the time of the alleged offences, it was a “significant leap” to further infer that, at the critical time, there were reasonable grounds to believe his disorder rendered him incapable of appreciating the nature and quality of his conduct, or knowing that it was wrong: Doe, at para. 40. The court concluded that more was required than the possibility that a disorder rendered him incapable of appreciating the nature and quality of his conduct, or knowing it was wrong.

Analysis:

[12] In this case, there is evidence that may provide reasonable grounds to believe Mr. Hanssen’s disorder rendered him incapable of appreciating the nature and quality of his conduct or knowing that it was wrong. A report by Dr. Gray dated May 24, 2019 was completed after a 30- day assessment order of Brunet J. The assessment was requested to assist the court in determining whether Mr. Hanssen suffered from a mental disorder at the time of his alleged offence by virtue of s. 16(1) of the Code.

[13] Dr. Gray ruled out schizophrenia and delusional psychosis as possible diagnoses. Schizophrenia is defined in the Diagnostic and Statistical Manual, 5th Edition, as having five listed symptoms for a significant amount of the time during at least a one-month period. These five symptoms include delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behaviour, and negative symptoms such as diminished emotional expression. There must also be a decline in functioning in one or more major areas such as work, interpersonal relations, or self-care. In order to make the diagnosis, there must be signs of the disturbance persisting for at least six months and the symptoms cannot be attributable directly to the effects of substance use or another medical or psychiatric condition.

[14] Dr. Gray found that evidence supporting a diagnosis of schizophrenia included the fact that Mr. Hanssen articulated persecutory delusions and had experienced a decline in his functioning in the areas of work and interpersonal relations. After graduating with a university degree and obtaining a government job, he eventually appeared to deteriorate and ended up working at a fast- food restaurant and was without a place to live, residing in a shelter. He also described worsening relationships with his roommates at his house where he was accused of attempted arson. At trial, he was found not guilty of the attempt to commit arson count and was convicted only of mischief.

[15] Dr. Gray opined that Mr. Hanssen would not meet the full criteria for a diagnosis of schizophrenia when he was assessed in May 2019. The diagnosis requires that two or more of the five listed symptoms be present. Dr. Gray noted that Mr. Hanssen had never complained of auditory or visual hallucinations, nor had he been observed as likely experiencing them by staff.

[16] In this trial, Mr. Hanssen testified he heard a voice outside of his window. The voice said he would be killed. It is reasonably possible that this voice was an auditory hallucination.

[17] Dr. Gray wrote that the most critical reason why he could not diagnose Mr. Hanssen with schizophrenia is that it cannot be diagnosed if the symptoms can be attributed to the effects of a substance.

[18] At the time of the May 2019 assessment, Mr. Hanssen was engaged in heavy use of cannabis.

[19] Dr. Gray also considered whether Mr. Hanssen may have been suffering with delusional disorder. Criteria for this disorder include the presence of one or both of delusions and hallucinations that occurred during or soon after substance intoxication or withdrawal, and that the substance used is capable of producing the symptoms in question. There also must be evidence that the symptoms are not better explained by a non-substance-induced psychotic disorder.

[20] Dr. Gray indicated that Mr. Hanssen described using marijuana on a semi-regular basis since his mid-teens. His use of marijuana increased with stress and appeared to have greatly increased in the two years prior to the offences.

[21] Mr. Hanssen described using an even greater amount of cannabis in the last two months prior to his offences. Cannabis use, according to Dr. Gray’s report, is known to produce psychotic symptoms in vulnerable individuals and can cause paranoia. Dr. Gray indicated that Mr. Hanssen’s additional childhood diagnosis of autism spectrum disorder would make him more vulnerable to paranoid delusions while under the influence of cannabis. Those suffering from autism spectrum disorder sometimes have difficulty understanding social cues and unspoken messages. Mr. Hanssen would thus be more vulnerable to misinterpret neutral stimuli from his environment as being specifically threatening to him while under the influence of cannabis.

[22] Dr. Gray also noted that Mr. Hanssen’s belief in these delusions appeared to have dissipated over time. This factor caused him to favour a diagnosis of cannabis induced psychotic disorder—severe, autism spectrum disorder—mild severity without accompanying intellectual impairment, and attention deficit hyperactivity disorder—severe.

[23] However, in the pretrial motions and in his evidence in this trial, Mr. Hanssen’s continued belief in persecutory delusions was strongly evident. In his evidence at trial and in his pretrial motions, Mr. Hanssen exhibited a persistent firm belief that the government was trying to murder him in 2018 in relation to a protected disclosure he made while working at Agriculture Canada in 2013. He testified he preferred to remain in custody and refused to sign a promise to appear so he could remain safely in custody. His pretrial motions material referred to witnesses “disappearing” and to events in the world that were entirely unrelated to his case, which he felt proved the plot to kill him.

[24] He feared being poisoned by his friend as part of this plot to murder him. He believed that natural events such as flooding or his father’s illness and recovery were related to a government plot to kill him. He testified that females were trying to have sex with him to lure him to his death at the behest of the government. He believed his female roommates had a gun in the house and that he was going to be killed. He testified that Russians and officials from the Department of Defence were persecuting him as a result of the protected disclosure he had made in 2013.

[25] He testified he poured gasoline over the rooming house to have police rescue him and his roommates from a government murder plot. He testified that his actions exposed his roommates to risk, but that this risk was justified due to the greater harm that may be visited upon his roommates if they were murdered by government agents. In his evidence at trial, it was not clear to me that Mr. Hanssen appreciated that his acts were wrong. Dr. Gray, in his report, found that Mr. Hanssen’s comments regarding why he committed the offence would very strongly suggest that he would be able to avail himself of the defence of not criminally responsible due to mental disorder. However, Dr. Gray indicated that the defence was not available in his opinion as Mr. Hanssen’s delusions were the result of cannabis use. Dr. Gray cited R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, where the court found that voluntarily self-induced intoxication with recreational drugs did not support a defence of not criminally responsible due to mental disorder.

[26] Mr. Hanssen argues that he has been ingesting a synthetic form of cannabis while in custody at the Ottawa Carleton Detention Centre. He argues that this synthetic form of cannabis may be causing the same type of cannabis induced psychosis that led Dr. Gray to conclude in 2019 that Mr. Hanssen would not be eligible to be found not criminally responsible.

[27] However, whether this synthetic form of cannabis could contribute to the persistence of his delusions requires expert opinion.

[28] At the time of his initial assessment, Dr. Gray believed Mr. Hanssen’s delusional beliefs were dissipating. There is strong, very recent evidence in this trial that this conclusion is now contradicted.

[29] While it is possible that synthetic cannabis may cause the delusional thinking that has resulted in Mr. Hanssen’s expressed belief that he is the victim of a government murder plot, I have no evidence on this issue. More evidence is required.

[30] Given all of the evidence before me from the trial, the pretrial motions, and Dr. Gray’s report, I am satisfied there are reasonable grounds to doubt that Mr. Hanssen was criminally responsible and that more evidence is required of Mr. Hanssen’s mental condition to determine whether he is exempt from criminal liability.

Anne London-Weinstein J.

Released: December 1, 2021

COURT FILE NO.: 18-13546

DATE: 2021/12/01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Steven Constantine Hanssen Accused

RULING ON NCR ASSESSMENT

Anne London-Weinstein J.

Released: December 1, 2021

R. v. Hanssen, 2021 ONSC 7947

Case Summary

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