Court File and Parties

Court File No.: CR-19-70000235-0000 Date: 2022-03-01 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Andy Metatawabin

Counsel: A. Linds, for the Crown S. Kelly, for Mr. Metatawabin

Heard: October 18, 19, 21, 22, November 29, December 13-15, 2021, January 6, 7, 2022.

Reasons for Judgment

SCHRECK J.:

[1] On June 5, 2018, James Tykoliz, a patient at Michael Garron Hospital (“MGH”), was stabbed in the eye by another patient wielding a butter knife. Mr. Tykoliz did not know the person who stabbed him other than through a few brief but cordial interactions over the preceding two days and there was no apparent motive for the attack. Mr. Tykoliz suffered serious and permanent injuries as a result of the attack.

[2] The person who stabbed Mr. Tykoliz was registered at the hospital under the name Michael Sutherland. The Crown alleges that this was a false name and that he was really Andy Metatawabin. As a result, Mr. Metatawabin is charged with attempted murder (Count 1), aggravated assault (Count 2), possession of a weapon for a purpose dangerous to the public peace (Count 3), and threatening death (Count 4). [1] He has elected to be tried in this court without a jury.

[3] In support of its theory that Michael Sutherland is actually Mr. Metatawabin, the Crown relies on the fact that Mr. Metatawabin’s DNA was found on an intravenous (“IV”) needle that had been used by Michael Sutherland, his fingerprint was found on a bottle in the cubicle occupied by Michael Sutherland, he has a tattoo similar to one two nurses described seeing on Michael Sutherland’s arm and he bears a resemblance to Michael Sutherland as seen on a hospital security video. Mr. Metatawabin takes the position that the evidence falls short of establishing his identity as the assailant or that the person who attacked the victim threatened him or had the intent to kill him. It is Mr. Metatawabin’s position that if he is found to have committed any of the offences, he was in a psychotic state at the time and is not criminally responsible by reason of mental disorder (“NCRMD”). Mr. Metatawabin has a long history of schizophrenia.

[4] The trial proceeded in two stages. In the first, the Crown called evidence in support of its theory that Mr. Metatawabin committed the offences with which he was charged. At the conclusion of the evidence and after hearing the submissions of counsel, I advised the parties that I was satisfied beyond a reasonable doubt that Mr. Metatawabin was the person who attacked Mr. Tykoliz, but not that he had threatened him or intended to kill him. As a result, Mr. Metatawabin was found not guilty on Counts 1 and 4 but guilty on Counts 2 and 3.

[5] In the second stage, the court heard evidence from two psychiatrists, one called by the defence and the other by the Crown, on the issue of whether Mr. Metatawabin is NCRMD. Dr. Mark Pearce, the psychiatrist called by the defence, was of the opinion that he was. Dr. Jeff van Impe, the psychiatrist called by the Crown, was of the opinion that he was not.

[6] I accept the opinion of Dr. Pearce and conclude that Mr. Metatawabin is NCRMD. The following reasons explain this conclusion as well as my conclusions with respect to the counts in the Indictment.

I. The Charges

A. Evidence

(i) Interactions Between the Victim and the Assailant

[7] On June 3, 2018, James Tykoliz attended the emergency department at MGH because of a medical condition. He underwent a medical procedure and was admitted to the Medical Short Stay Unit (“MSSU”) the following day. Mr. Tykoliz was given fentanyl following the procedure. In his testimony, he described himself as “really drugged” and “feeling no pain” as a result of taking fentanyl.

[8] The MSSU consists of a row of cubicles, each containing one bed, with curtains in front of them. Mr. Tykoliz was placed in room 45. He remained in his room during his stay, although he left on occasion to use the washroom. On one occasion when he was returning from the washroom, he saw a man sitting in the cubicle adjacent to his, so he stopped and introduced himself. The man said that he was in the hospital because of dehydration. Mr. Tykoliz told him why he was there and then returned to his bed.

[9] Mr. Tykoliz testified that man identified himself, and while he could not recall the name he gave, he believed that it may have been “Michael.” There is no issue that this was the person later referred to as Michael Sutherland and that he occupied room 44.

[10] At some point on June 4 or 5, Mr. Tykoliz was speaking on the phone with his girlfriend when the man from the adjacent cubicle stuck his head into the room. Mr. Tykoliz described him as having “wild eyes” and a “wild expression.” He excitedly began asking Mr. Tykoliz about the phone he was using and kept saying “Man, man, man.” He spoke very quickly and Mr. Tykoliz agreed that he could be described as “manic.” The man said, “Hey man, is that an iPhone, man?” Mr. Tykoliz found the man’s interest in his phone to be odd as it was not a new model and unremarkable. He told the man that it was an iPhone 7 and that he was speaking to someone. The man then left the cubicle.

(ii) The Attack

(a) The Victim’s Account

[11] Mr. Tykoliz testified that at some point on June 5, 2019, the man from the adjacent cubicle came by and told him that “they’re letting him out.” Mr. Tykoliz told him that he believed that he was going to be moved to another floor. The man told Mr. Tykoliz that he was going for a walk and left. Blythe Lem, a registered practical nurse (“RPN”), testified that earlier that day, the man in room 44 had asked to have his IV removed.

[12] A while later, the man returned to Mr. Tykoliz’s room. In his testimony, Mr. Tykoliz described what happened next:

… [He] opened the curtain on the left-hand side and stuck his head in and just looked right, left, looked everywhere a couple times, closed the curtain and was back within a microsection [ sic ], a minute, less than a minute, and that’s when he walked up to me and was like an inch from my face and he had a knife in his hand and he said, “Prepare to die.” And then he shoved the knife in my face.

Mr. Tykoliz testified that the man approached him very quickly and that he formed the impression that he was going to whisper something in his ear or give him a hug. He believed that the man stabbed him with a butter knife. Mr. Tykoliz recalled bleeding significantly after being stabbed and quickly losing consciousness.

[13] Mr. Tykoliz gave a statement to the police the day that he was attacked in which he gave the following description of what the man said just before stabbing him: “I’m not sure, I think he said something like ‘prepare to die’ or something.” Mr. Tykoliz listened to an audio recording of this part of his statement during his testimony. He disagreed that he was unsure about what the man said and maintained that what he told the police was “nervous talk.” He acknowledged that he was heavily sedated at the time of the attack.

[14] Mr. Tykoliz suffered serious injuries as a result of the stabbing. While he did not completely lose his vision, it is now significantly impaired. There is no issue that the nature of his injuries meets the definition of “wounding” in s. 268(1) of the Criminal Code, R.S.C. 1985, c. C-46.

(b) The Nurses’ Observations

[15] Ms. Lem was working across from Mr. Tykoliz’s cubicle and saw the patient from room 44 walk into room 45 and quickly pull the curtain behind him. She thought that this was strange, so she began to walk towards the cubicle to investigate. As she got there, she heard screaming and when she pulled the curtain back she saw the patient from room 44 stabbing Mr. Tykoliz in the eye with a butter knife. Ms. Lem screamed. The patient from room 44 then walked around her out of the cubicle and down the hallway. He stopped, turned around to look at Ms. Lem, wiped the knife on his pants, put it in his pocket, and then continued walking out of the hospital.

[16] Leah Bucad, another RPN, was attending to a patient when she heard Ms. Lem scream. She looked out of the cubicle she was in and “saw a man walking fast, going out.” She recognized him as the patient from room 44. He appeared to be holding something silver in his right hand.

[17] Michele Jaggon, the RPN who had been assigned to room 44, was standing outside room 41 when she heard screaming. At the same time, she saw the patient she knew as Michael walk past her towards the exit door. When asked to describe how he walked, she replied that that he “wasn’t any faster than normal” and was walking a normal pace.

(iii) Descriptions of the Assailant

[18] Mr. Tykoliz described the man who stabbed him as being possibly in his mid-20s or maybe 30 years old with light brown skin. He had a “normal” build and Mr. Tykoliz estimated his height as being about 5’6”.

[19] Ms. Bucad had interacted with the patient in room 44 on about three occasions to check his vital signs and to take blood samples. She described him as being in his early 20s, about 5’6” or 5’7”, with a medium build and light brown skin.

[20] Ms. Jaggon described the assailant as being 6’1” or 6’2” and “looked to be native, Indigenous.” [2]

[21] Both Ms. Jaggon and Ms. Bucad observed that Michael had a tattoo on his right forearm which was an outline of a cross. It is an agreed fact that Mr. Metatawabin has a tattoo in the shape of a cross on his forearm.

(iv) Forensic Evidence

(a) DNA

[22] After the assault, police officers searched room 44. They took a swab from the IV needle in the room, which was examined by a biologist at the Centre for Forensic Science (“CFS”), a report from whom was admitted on consent for the truth of its contents. The report stated that a DNA profile was obtained from the swab, that Mr. Metatawabin could not be excluded as the source of the profile, and that it was over one trillion times more likely that the DNA profile came from him than from a random person unrelated to him.

(b) Fingerprints

[23] A partially empty mouthwash bottle was found under the bedding on the bed and a fingerprint impression was located on it. D.C. Philip Boyd, who was qualified to give opinion evidence on friction ridge fingerprint comparisons, compared the impression to one taken from Mr. Metatawabin and concluded that the impression on the mouthwash bottle had come from him.

(c) Security Video

[24] Security video showing the person who stabbed Mr. Tykoliz walking out of the MSSU and towards the hospital exit was admitted into evidence. The Crown did not invite the court to identify Mr. Metatawabin as being the person in the video but submits that he bears a resemblance to him.

B. Analysis

(i) Identity

(a) Legal Principles Respecting Circumstantial Evidence

[25] The evidence relied on by the Crown to establish that the person in room 44 registered under the name of Michael Sutherland was actually Mr. Metatawabin was entirely circumstantial. In circumstantial cases, triers of fact must be cautious not to “fill in the blanks” and draw inferences of guilt too readily. To avoid doing so, the trier should consider whether the inference of guilt is the only reasonable inference to be drawn from the circumstantial evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30. Reasonable inferences other than guilt need not be based on proven facts and may be based on “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, provided that they are rooted in logic and human experience applied to the evidence or the absence of evidence: Villaroman, at paras. 35-37; R. v. Stennett, 2021 ONCA 258, at para. 60. Furthermore, alternative inferences need not be “easily drawn”, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, at para. 20; R. v. Katwaru (2001), 52 O.R. (3d) 321 (C.A.), at paras. 40-41; R. v. Dwyer, 2013 ONCA 368, at para. 4. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference.

[26] Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience: R. v. Choudhury, 2021 ONCA 560, at para. 19.

(b) The Circumstantial Evidence in this Case

[27] In this case, the circumstantial evidence consists of the following:

• Mr. Metatawabin’s DNA was found on the IV needle used by the assailant;
• Mr. Metatawabin’s fingerprint was found on a mouthwash bottle located in the bed used by the assailant and no other patient had used the room for at least three days;
• The assailant had a tattoo in the shape of a cross on his forearm and Mr. Metatawabin has such a tattoo;
• The assailant, as seen in the hospital security video, bears a close resemblance to Mr. Metatawabin.

[28] In my view, the only reasonable inference to be drawn from this evidence is that Mr. Metatawabin was the patient in room 44 who attacked Mr. Tykoliz. It is not reasonable to infer that Mr. Metatawabin occupied the room at some other time during which he left his DNA on the IV needle and his fingerprint on the mouthwash bottle and that subsequently, another person bearing a resemblance to him came to occupy the same room. There was evidence that the assailant had an IV, and I do not accept that there were two IV needles in the room, one used by the assailant and one left there from some earlier time when Mr. Metatawabin occupied the room.

[29] Based on the foregoing, I am satisfied beyond a reasonable doubt that Mr. Metatawabin was the person who assaulted Mr. Tykoliz. Given the concessions by the defence, he is accordingly found guilty on Counts 2 and 3.

(ii) Threatening

[30] In his testimony at trial, Mr. Tykoliz was certain that his attacker said “prepare to die” immediately before the assault. In a statement he gave to the police shortly after the assault, he said “ I’m not sure, I think he said something like ‘prepare to die’ or something .” At the time his attacker spoke to him, Mr. Tykoliz was heavily sedated. While I have no doubt that Mr. Tykoliz now sincerely believes that his assailant said, “prepare to die,” it is clear that at the time he gave his statement, he was not sure of what was said. While it was likely that what was said was a threat, in all the circumstances I have a reasonable doubt on this issue. Mr. Metatawabin is accordingly found not guilty on Count 4.

(iii) Attempted Murder

[31] To prove a charge of attempted murder, the Crown must prove a specific intent to kill. The secondary intent for murder in s. 229 ( a )( ii ) of the Criminal Code, an intent to cause bodily harm the accused knows is likely to cause death while being reckless as to whether death ensues or not, is insufficient to prove the offence of attempted murder: R. v. Ancio, [1984] 1 S.C.R. 225, at pp. 248-251.

[32] As is often the case, the Crown relies on circumstantial evidence to prove intent. Given the manner and location of the stabbing, it is certainly reasonable to infer that Mr. Metatawabin intended to kill Mr. Tykoliz. However, the issue that must be determined is whether it is the only reasonable inference. For the reasons outlined earlier, I am not satisfied that Mr. Metatawabin said “prepare to die” before stabbing Mr. Tykoliz. There was no apparent motive for the stabbing. Mr. Metatawabin did not know Mr. Tykoliz and the brief interactions they had in the time leading up to the assault were unremarkable. It was a senseless act. In these circumstances, it is impossible to ascertain what Mr. Metatawabin’s intent was, and I cannot conclude beyond a reasonable doubt that he had an intent to kill. Mr. Metatawabin is therefore found not guilty of attempted murder.

II. The NCRMD Hearing

A. Evidence

(i) The Expert Witnesses

[33] Two forensic psychiatrists, one called by each party, testified at the hearing to determine whether Mr. Metatawabin is NCRMD. Dr. Mark Pearce, who was called by counsel for Mr. Metatawabin, obtained his M.D. in 2002 at the University of British Columbia and completed his psychiatric residency at the University of Toronto in 2007. He is currently employed as a forensic psychiatrist at the Centre for Addiction and Mental Health (“CAMH”) in Toronto. Dr. Jeff Van Impe, who was called by the Crown, obtained his M.D. from the University of Western Ontario in 2005 and completed his psychiatric residency at McMaster University in 2010. He is currently a staff psychiatrist at Joseph Brant Hospital in Burlington and a consultant forensic psychiatrist at the Waypoint Centre for Mental Health Care in Penetanguishene.

[34] Both psychiatrists reviewed Mr. Metatawabin’s extensive medical records and information about the index offence and both interviewed Mr. Metatawabin. Both agreed that Mr. Metatawabin suffers from a longstanding major mental disorder, specifically schizophrenia. Dr. Pearce also diagnosed Mr. Metatawabin with a polysubstance abuse disorder and antisocial personality disorder, and Dr. Van Impe agrees that he demonstrates traits of both. Dr. Pearce and Dr. Van Impe disagree, however, with respect to whether Mr. Metatawabin was NCRMD at the time of the index offence. Dr. Pearce is of the opinion that he was. Dr. Jeff van Impe is of the opinion that he was not.

(ii) Background

[35] Mr. Metatawabin was born in 1987. He is a member of and grew up on the Attawapiskat First Nation. His mother was 15 years old at the time of his birth and in an “on and off” relationship with his father. There is some suggestion in the records that she may have abused alcohol during her pregnancy.

[36] Mr. Metatawabin’s mother lived with her parents, both of whom were residential school survivors, and it was they who were his primary caregivers from the time of his birth until he was about nine years old. He then lived with his mother for a time, where he was abused by the man she was living with. During this period, Mr. Metatawabin began to frequently get into trouble for stealing, vandalism, fighting and running away from home.

[37] At some point, child welfare authorities became involved and Mr. Metatawabin was eventually made a Crown ward. He spent most of his adolescence living in foster care or in group homes and later in open and closed custodial young offender facilities. Mr. Metatawabin began to use drugs and drink heavily around this time.

[38] As an adult, Mr. Metatawabin was unsettled in terms of his residences. He lived at various locations in Northern Ontario until 2012, when he moved to Toronto. He has resided there, although mostly at no fixed address, since that time. He continued to abuse alcohol and drugs, including cocaine, methamphetamine and a variety of opiates.

(iii) Psychiatric History Prior to the Index Offence

[39] During his adolescence, Mr. Metatawabin began to hear voices, experience paranoid delusional beliefs and blackouts. Following an assessment at a group home where he was living at the time, he was diagnosed with schizophrenia when he was 17 years old.

[40] In July 2006, Mr. Metatawabin was admitted to the Timmins and District Hospital with symptoms of psychosis and agitation. At the time, he believed that worms were crawling on his skin. He was given antipsychotic medication, as a result of which his symptoms improved and he was discharged.

[41] Mr. Metatawabin was readmitted to the Timmins and District Hospital on August 12, 2006, complaining of worms in his throat, which he wished to have cut out. He was found to be incapable of consenting to treatment and his mother acted as his substitute decision maker. He received medication, which resulted in an improvement in his symptoms. He was discharged on August 31, 2006.

[42] Mr. Metatawabin did not take his medication as directed and returned to the Timmins and District Hospital on September 20, 2006, after becoming agitated and engaging in bizarre behaviour, such as drinking out of toilet bowls. He reported hearing voices and was physically aggressive towards hospital staff, as a result of which he was placed in restraints. Mr. Metatawabin left the hospital after being made a voluntary patient.

[43] In February 2007, Mr. Metatawabin was admitted to the Sault Area Hospital after engaging in bizarre behaviour, such as walking naked in the snow. He reported hearing voices and believed that there were spiders crawling all over him. He responded well to medication and was subsequently discharged.

[44] In April 2008, Mr. Metatawabin was serving a sentence for robbery in the Monteith Jail when he became aggressive towards the staff and engaged in bizarre behaviour, such as urinating at the foot of his bed. He was transferred to the St. Lawrence Valley Correctional and Treatment Centre (“SLVCTC”), where he was observed to be confused, disorganized, and responding to auditory hallucinations. He formed the belief that the cartilage in his throat had come out and that there was a growth around his vocal cords which made a noise like a rattlesnake. He was found to be incapable of consenting to treatment. His symptoms gradually improved after he was given medication and he was later transferred to another jail.

[45] In December 2014, Mr. Metatawabin was arrested for damaging property at his mother’s house. He had been texting threatening messages to a relative in which he stated that the devil was inside him. The police took him to the hospital, where a physician completed a “Form 1” pursuant to s. 15 of the Mental Health Act, R.S.O. 1990, c. M.7, requiring him to undergo a psychiatric assessment. After the Form 1 expired, Mr. Metatawabin left the hospital, contrary to medical advice.

[46] In June 2017, Mr. Metatawabin voluntarily attended the Sault Area Hospital. He complained of paranoia and hearing voices that called him derogatory names. He expressed suicidal thoughts and was admitted on a Form 1. Mr. Metatawabin admitted to the hospital staff that he had not been taking his medication for a couple of months and had been abusing illegal drugs. Mr. Metatawabin’s symptoms improved after he was given medication and he was subsequently discharged.

[47] In December 2017, Mr. Metatawabin attended the Toronto Western Hospital because of a hand injury. While there, he requested medication to treat his schizophrenia. He denied having any hallucinations, but was observed to be having conversations with himself and was disorganized and agitated. He was admitted on a Form 1 and discharged a few days later.

(iv) Criminal Record

[48] Mr. Metatawabin had numerous findings of guilt as a youth for a variety of offences, including assault, assault with a weapon, theft, threatening, carrying a concealed weapon and failing to comply with a disposition. Several of these resulted in secure custody dispositions.

[49] Mr. Metatawabin has numerous entries on his adult record for a variety of offences, including assault, theft, robbery, indecent act and failing to comply with court orders. Most of these resulted in reformatory sentences, although he received a four-year penitentiary sentence in 2009 for robbery, possession of a Schedule I controlled substance and using an imitation firearm.

(v) Events Preceding the Index Offence

[50] Mr. Metatawabin was taken to MGH on June 1, 2018 by ambulance because of a head injury. He told the paramedics that he had been drinking all day and feeling suicidal and had intentionally hit his head against a wall as hard as he could. However, he told MGH staff that he had injured his head when someone had assaulted him with a beer bottle and denied having attempted suicide. Mr. Metatawabin told the admitting physician that he had been diagnosed with schizophrenia but that he disagreed with the diagnosis and was not taking the medication that had been prescribed for him. He was admitted to the hospital for the head injury and a possible serious kidney injury revealed by blood tests. The head injury required 20 staples.

[51] When Mr. Metatawabin was first admitted to MGH, he was placed on a Form 1 because the paramedics had reported that he was suicidal. The Form 1 was later discontinued because Mr. Metatawabin no longer appeared to be suicidal.

[52] While the MGH admission records indicate that Mr. Metatawabin was calm and cooperative, nursing notes from June 1 state that he threw urine in the hallway after demanding orange juice. Security staff who were called noted that he was alert and oriented. A social worker who interviewed Mr. Metatawabin on June 2 noted no concerns with respect to any cognitive or emotional observations.

[53] In the early morning hours of June 5, Mr. Metatawabin was observed to be masturbating while lying on his stretcher with the curtain open.

[54] On June 5, Mr. Metatawabin asked to be permitted to stay in the hospital for another day because he was having suicidal thoughts. He is described in the records as being calm and cooperative. A referral was made to the psychiatry department.

[55] Later that day, Mr. Metatawabin was observed to be fully dressed and when asked why, responded that he was just walking around. He committed the index offence shortly after that.

[56] Ms. Jaggon had been Mr. Metatawabin’s RPN over the course of three days. She described having “quite a bit” of interaction with him, during which she did things such as check his vital signs and administer medication. She estimated that she had spent a total of at least three to four hours with him over the course of three days. On one occasion, she commented that she liked his tattoo. Ms. Jaggon did not notice anything unusual or concerning during her interactions with Mr. Metatawabin.

[57] Ms. Lem testified that on the day of the assault but before it occurred, Mr. Metatawabin seemed “somewhat agitated” and was constantly moving his legs.

[58] Ms. Bucad interacted with Mr. Metatawabin on a total of about three occasions to check his vital signs and to take blood samples from him. Each time, she was with him for a couple of minutes and had only short conversations with him to ascertain whether he was in pain. She noticed that he was “calm” and did not observe any unusual behaviour.

(vi) Arrest and Assault on Another Inmate

[59] Mr. Metatawabin was arrested on June 12, 2018 and incarcerated at the Toronto South Detention Centre (“TSDC”). He was initially placed in medical segregation because of his history of unpredictable violent behaviour but on June 15 was moved to a cell shared with another inmate he did not know and had never met before. Within minutes, Mr. Metatawabin committed an unprovoked assault on the other inmate, punching and kicking him until he was unconscious. Correctional officers intervened and Mr. Metatawabin was placed into segregation.

[60] Mr. Metatawabin was charged with assaulting the inmate. He was later found to be NCRMD. Both Dr. Pearce and Dr. Van Impe conducted assessments in relation to this charge and both were of the opinion that Mr. Metatawabin was NCRMD at the time of the offence.

[61] Once in segregation, Mr. Metatawabin repeatedly threatened staff members and attempted to assault them. On one occasion, he smeared feces on the window of his cell and flooded the floor with water. He was assessed by psychiatrists on June 19 and again on June 29, but refused to engage with them.

(vii) Subsequent Events

[62] On August 1, 2018, Mr. Metatawabin was admitted to CAMH on a Form 1. He was observed to be “superficially cooperative” and did not behave bizarrely or inappropriately, although on August 8 he spat on and tried to strike another patient. He told staff that he hated the patient, but could not provide a reason for this. Mr. Metatawabin agreed to take medication and was transferred back to the TSDC. He was more cooperative and reported having fewer auditory hallucinations.

[63] Mr. Metatawabin told both Dr. Pearce and Dr. Van Impe that he did not remember assaulting Mr. Tykoliz.

[64] At the time of the hearing before this court, Mr. Metatawabin was a patient at Waypoint pursuant to an order of the Ontario Review Board. He was compliant with taking his medication and not demonstrating symptoms of psychosis.

(viii) Psychiatric Opinions

(a) Dr. Pearce

[65] In his report, Dr. Pearce noted that Mr. Metatawabin was suffering from untreated schizophrenia at the material time and was clearly psychotic in the summer of 2018 while at the TSDC. In Dr. Pearce’s view, there was evidence that Mr. Metatawabin was suffering from symptoms at the time of the offence as well. Although he appeared normal at times, he also reported feeling suicidal and behaved strangely.

[66] In his testimony, Dr. Pearce explained that given Mr. Metatawabin’s history, he would expect him to be showing symptoms if he was unmedicated. Bizarre, angry and disruptive behaviour are “core symptoms” of his condition. Such symptoms would not necessarily be apparent to others, and Mr. Metatawabin had in the past refused to disclose his symptoms.

[67] Dr. Pearce noted that Mr. Metatawabin had given conflicting accounts as to the source of his head injury, had claimed to be drinking but had no alcohol in his blood, had thrown urine when not given orange juice, had masturbated where others could see him, and had asked to stay in the hospital and then subsequently left. In Dr. Pearce’s view, these were instances of disorganized behaviour indicative of disorganized thoughts. Dr. Pearce also relied on Mr. Tykoliz’s description of Mr. Metatawabin’s behaviour, including his interest in an unremarkable phone and repeatedly saying “man, man, man.”

[68] Dr. Pearce explained that a “very big reason” for his conclusion was the unprovoked attack on Mr. Tykoliz, which was committed for no apparent reason and after which he calmly walked away.

[69] Dr. Pearce concluded as follows:

Given this gentleman’s well-documented history, which includes unpredictable violence when psychiatrically unwell, in my opinion it is reasonable to conclude on a very slight balance of probabilities that he was acting in response to symptoms of psychosis and that he was unable to know that his actions were morally and/or legally wrong. That is, he appears to act without rational motive and while his self-report of his internal experiences is quite limited, in my opinion the driving force is positive symptoms of his illness. It does not appear that substances of abuse played a role in his alleged behaviours in June 2018 (though he may have been using around those times, thus worsening already present symptoms of his illness). He was likely robbed, by virtue of his mental illness, of the ability to appreciate and understand how an ordinary person would view the rightfulness or wrongfulness of his actions. He could not, given that he was not capable of rational thought, turn his mind to whether the crimes he was about to commit were ones he ought not do. Overall, he was deprived of rational choice.

(b) Dr. Van Impe

[70] Dr. Van Impe came to the opposite conclusion. While he accepted that Mr. Metatawabin suffers from schizophrenia, in his view the evidence suggested that he was not experiencing symptoms at the relevant time for several reasons. First, although Mr. Metatawabin was placed on a Form 1 when he was admitted to MGH, the Form 1 was discontinued prior to any psychiatric assessment. Dr. Van Impe stated that in his experience, non-psychiatrists do not often cancel a Form 1 without any input from mental health services, so the physician who cancelled it could not have been concerned that Mr. Metatawabin was suffering from symptoms. Dr. Van Impe also believed that anti-psychotic medication or sedatives would have been prescribed if Mr. Metatawabin was “floridly psychotic.” Dr. Van Impe accounted for the urine-throwing incident as possibly being the result of intoxication or withdrawal symptoms. He testified that the masturbation was, in his experience, not unusual for hospital patients to engage in.

[71] Dr. Van Impe also relied on the fact that none of the RPNs who interacted with Mr. Metatawabin noted any unusual or concerning behaviour.

[72] In his report, Dr. Van Impe did acknowledge that Mr. Tykoliz had observed some strange behaviour by Mr. Metatawabin, but it is unclear how he factored this into his conclusion. During his testimony, he clarified that he considered Mr. Tykoliz’s description of Mr. Metatawabin’s behaviour, but it was “not necessarily indicative of psychosis.” Dr. Van Impe testified that he gave more weight to the evidence of the nurses who interacted with Mr. Metatawabin over a period of three days than he did to the evidence of Mr. Tykoliz.

[73] Dr. Van Impe also expressed concerns about the circumstances of the offence:

Nurse, Blythe Lem, told police that she observed Mr. Metatawabin enter the victim’s room and pull the curtains closed behind him…. It would not be unreasonable to suggest that Mr. Metatawabin pulled the curtains behind him because he knew that what he was doing was wrong and he didn’t want others to observe him doing it. He had also, presumably, entered the room with a knife in his possession which suggests that he was carrying the knife with a purpose in mind and likely appreciated what he was ultimately using the knife for. Mr. Metatawabin had also fully dressed himself and asked nurses to remove his IV in a time that I believe was quite proximal to the commission of the index offence. In my opinion this is supportive of my opinion that Mr. Metatawabin knew what he was going to do and knew that it was wrong. He had made the decision to commit the offence and then intended to flee the scene afterwards. He likely appreciated that fleeing the scene in hospital attire with an IV in his arm would appear quite suspicious and make him easily recognizable. Nurses Bucad and Lem both observed Mr. Metatawabin walk quickly or run from the scene of the offence suggesting that he, at the relevant time, had an appreciation that what he had done was wrong and would have been viewed as being wrong by others in the vicinity of where the offence occurred.

The victim, during court testimony, explained that Mr. Metatawabin had put his head in his room and appeared to be looking in all directions, perhaps to ensure that the victim was alone.

B. Analysis

(i) The Legal Framework

(a) Section 16 of the Criminal Code

[74] Section 16(1) of the Criminal Code provides as follows:

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.

[75] Section 16(2) creates a presumption of criminal responsibility unless there is evidence that displaces the presumption on a balance of probabilities, and s. 16(3) provides that the burden of proof rests with the party that raises the issue, in this case the defence. Thus, Mr. Metatawabin is criminally responsible unless he can establish otherwise on a balance of probabilities.

[76] The term “mental disorder” is defined in s. 2 of the Criminal Code as a “disease of the mind” and there is no issue in this case that schizophrenia falls within that definition.

[77] Section 16(1) has two branches, either of which, if established, lead to a finding of NCRMD. Counsel agree that the first branch, which involves individuals who are “incapable of appreciating the nature and quality of the act or omission” that constitutes the offence, has no application in this case. The sole issue is whether Mr. Metatawabin’s mental disorder rendered him incapable of knowing that the act he committed was wrong.

(b) The Meaning of “Wrong”

[78] The term “wrong” in s. 16(1) means more than “legally wrong,” as was explained in R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1354-1355:

… [I]t is plain to me that 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 “natural imbecility” or 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. This would be the case, for example, if the person suffered from a disease of the mind to such a degree as to know that it is legally wrong to kill but, as described by Dickson J. in Schwartz, [1977] 1 S.C.R. 673, kills “in the belief that it is in response to a divine order and therefore not morally wrong” (p. 678).

[79] Further clarification of the meaning of “wrong” in s. 16 can be found in R. v. Oommen, [1994] 2 S.C.R. 507, at p. 520:

There is no suggestion in the authorities that the accused must establish that his delusion permits him to raise a specific defence, such as self-defence. The issue is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person. It is not necessary additionally to show that the defence of self-defence would also apply. Indeed, to posit such a requirement is to require the defence to prove two logically inconsistent propositions: first, that the accused was by reason of mental disorder unable to make the choice which a reasonable person would make; and second, that the accused acted reasonably in repelling an imminent attack. The difficulty is avoided, however, when it is recognized that s. 16 is not merely a vehicle for bringing particular defences before the court; it is an independent condition of criminal responsibility, as this Court affirmed in Chaulk and as the wording of the amended section makes clear. It may be that the nature of the delusion is to create a subjective impression in the accused’s mind that he must defend himself or himself be killed, akin to that present when the defence of self-defence is raised, but that is incidental. Thus the question is not whether, assuming the delusions to be true, a reasonable person would have seen a threat to life and a need for death-threatening force. Rather, the real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.

It is clear from this that the focus is on whether the accused was incapable of knowing that the act in question was wrong in the circumstances because of his mental illness: R. v. Woodward, 2009 ONCA 911, at paras. 5-6; R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, at paras. 55-56.

(ii) Weighing the Expert Evidence

(a) Overview

[80] In this case, the court heard from two well-qualified expert forensic psychiatrists who each expressed an opinion on the issue that the court must determine, that is, whether at the time Mr. Metatawabin committed the offence, he was incapable of knowing that it was wrong because of a mental disorder. It is clear from their reports and their testimony that both psychiatrists were familiar with the legal test for a finding of NCRMD and expressed their opinions in that context. It is equally clear that both psychiatrists were aware of and had carefully reviewed Mr. Metatawabin’s history as well as the circumstances surrounding the commission of the offence. The crux of their disagreement is whether Mr. Metatawabin was in a psychotic state at the time of the offence.

[81] Having carefully considered the evidence, I accept the opinion of Dr. Pearce over that of Dr. Van Impe for the following reasons.

(b) Dr. Pearce

[82] Dr. Pearce’s conclusion that Mr. Metatawabin was likely in a psychotic state at the time of the offence is supported by Mr. Metatawabin’s history. As Dr. Pearce points out, given that history it is reasonable to conclude that absent medication, which he was not receiving at the relevant time, Mr. Metatawabin was likely to be psychotic.

[83] Dr. Pearce’s conclusion is also supported to some extent by Mr. Metatawabin’s behaviour at the relevant time. He gave contradictory explanations for his head injuries, threw urine, masturbated where he could be seen by others, and behaved in a bizarre manner during his interactions with Mr. Tykoliz prior to the offence. Most importantly, I agree with Dr. Pearce that the offence itself supports the conclusion that Mr. Metatawabin was psychotic. Mr. Metatawabin did not know Mr. Tykoliz and the limited interactions they had were cordial. He had absolutely no motive to harm him. The vicious assault committed by Mr. Metatawabin in the middle of the day in a busy hospital ward was completely irrational, which supports Dr. Pearce’s conclusion that Mr. Metatawabin was in a psychotic state and not thinking rationally.

(c) Dr. Van Impe

[84] Dr. Van Impe explained that the primary reason for his conclusion that Mr. Metatawabin was not in a psychotic state was the absence of evidence of any symptoms. There are three reasons why I do not accept his conclusion.

[85] First, Dr. Van Impe places significant weight on the information from the nurses and the physician who cancelled the Form 1. However, none of these people were mental health professionals and there was no reason for them to be alert to any concerns about symptoms of psychosis. Mr. Metatawabin had been admitted to the hospital for a head injury and a possible kidney injury, and there was no reason why the staff in a busy urban hospital would have paid particular attention to his mental state. I respectfully disagree with Dr. Van Impe that Mr. Tykoliz’s observations should be afforded less weight than that of the nurses. Unlike the nurses who were busy and had other duties to attend to, Mr. Tykoliz was awaiting medical treatment and had little else to pay attention to.

[86] Second, Dr. Van Impe appears to explain away all the circumstances that do not support his conclusion that there were no symptoms of psychosis. He discounts the throwing of the urine on the basis that it might be attributable to drug use or withdrawal symptoms, although there is no evidence of any recent drug consumption or other symptoms of withdrawal. He discounts the masturbation on the basis that it is not unusual behaviour, although it was apparently unusual enough that MGH staff made note of it. He discounted Mr. Tykoliz’s observations on the basis that they are “not necessarily indicative of psychosis.” Overall, he appears to have considered each possible symptom in isolation and posited some alternative explanation for it without considering the cumulative effect of this evidence.

[87] The third and most important reason I do not accept Dr. Van Impe’s conclusion that there were no symptoms of psychosis is that he seems not to have considered the nature of the offence. As noted, this was a motiveless and seemingly irrational act and Dr. Van Impe was unable to posit any other explanation for this conduct.

[88] It is significant in my view that Mr. Metatawabin was undoubtedly psychotic and NCRMD with respect to the assault he committed on another inmate at the TSDC just 10 days after the assault on Mr. Tykoliz. There are notable similarities between the assaults in that both were vicious, unprovoked and in relation to complete strangers Mr. Metatawabin had no known motive to harm. In my view, if he was psychotic and NCRMD on June 15, then he was likely the same when committing a similar offence on June 5.

[89] While I agree with Dr. Van Impe that some of Mr. Metatawabin’s conduct, such as closing the curtain just before the assault, suggests that the assault was planned, I agree with Dr. Pearce that the fact the attack was planned does not mean that it was not driven by psychosis. The issue is whether Mr. Metatawabin knew that what he was doing was wrong, not whether it was planned.

[90] Dr. Van Impe appears to have put significant weight on what he understood to be evidence that Mr. Metatawabin walked quickly or ran from the scene after the assault. However, the evidence I heard does not support this. Although Ms. Bucad testified that Mr. Metatawabin was “walking quickly”, Ms. Jaggon said that he “wasn’t faster than normal.” According to Ms. Lem, he walked out of Mr. Tykoliz’s cubicle, stopped, turned to look at her, wiped the knife on his pants, and then continued walking. The security video shows Mr. Metatawabin walking normally.

[91] For these reasons, I do not find Dr. Van Impe’s conclusion that Mr. Metatawabin was not suffering from psychotic symptoms at the time of the assault to be persuasive. [3]

(d) Intoxication

[92] Crown counsel suggested that Mr. Metatawabin’s conduct may have been the result of drug use rather than psychosis, and makes the submission, based on R. v. Cooper, [1980] 1 S.C.R. 1149, that this precludes the application of s. 16. There are two difficulties with this submission. First, while it true that the Court in Cooper stated, at p. 1159, that “‘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,” subsequent caselaw has made it clear that this statement is not as categorical as it appears to be in cases such as this where voluntarily intoxication may affect a pre-existing psychiatric condition: R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at paras. 66-77.

[93] More importantly, there is no evidentiary basis for the conclusion that Mr. Metatawabin’s attack on Mr. Tykoliz was the result of the voluntary consumption of drugs. Although Mr. Metatawabin has a long history of substance abuse, he had been in the hospital for several days and there is no evidence that he had access to any illicit substances. As well, as noted earlier, he committed a similar assault 10 days later for which he was found to be NCRMD and which was not the result of voluntary intoxication.

(iii) Conclusion

[94] For the foregoing reasons, I accept the opinion of Dr. Pearce that at the time Mr. Metatawabin committed the offence, it was likely that he was in a psychotic state such that he was incapable of rational perception and rational choice and therefore did not have the capacity to know that his actions were wrong.

III. Disposition

[95] For the foregoing reasons, Mr. Metatawabin is found not guilty on Counts 1 and 4 and not criminally responsible on account of mental disorder pursuant to s. 16 of the Criminal Code on Counts 2 and 3.

[96] As recommended by both counsel, I decline to hold a disposition hearing pursuant to s. 672.45(1) of the Criminal Code and refer Mr. Metatawabin’s matter to the Ontario Review Board to hold a hearing and make a disposition pursuant to s. 672.47(1).

Justice P.A. Schreck Released: March 1, 2022

Footnotes:

[1] Mr. Metatawabin was also charged with failing to comply with a probation order by failing to reside at an address approved of by his probation officer, but the Crown withdrew that charge during the trial.

[2] This trial proceeded by way of videoconference. I was able to observe Mr. Metatawabin and his appearance is consistent with these descriptions, except with respect to his height, which I was unable to ascertain as I saw only his head and upper torso.

[3] While I have independently assessed Dr. Van Impe’s evidence, I note that similar observations have been made about his opinion in another case: see R. v. Hannah, 2020 ONCJ 409, at paras. 132-135.