R v Lindsay, 2016 ABQB 251

Court of Queen ’ s Bench of Alberta Citation: R v Lindsay, 2016 ABQB 251 Date: 20160513 Docket: 120306568Q1 Registry: Red Deer Between: Her Majesty the Queen Crown - and - Mark Damien Lindsay Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice E.J. Simpson _______________________________________________________ Table of Contents I. Introduction . 3 II. Issues . 3 III. Decisions . 3 IV. Law .. 3 V. Facts and Evidence . 4

A. Agreed Statement of Facts . 4 B. Movements of Mark Lindsay and Dana Turner, Aug. 13-15, 2011 . 9 C. Medical and Correctional Records . 9 D. Evidence of Lindsay’s Parents . 13 1. Witness Credibility and Reliability . 13 2. John Lindsay . 13 3. Louise Lindsay . 17 4. Evidence of John Lindsay and Louise Lindsay . 18 E. Statements to Authorities . 20 1. Admission of the Statements to Authorities . 20 2. Is the March 16, 2012 Statement True? . 21 F. Expert Evidence . 23 1. Dr. Mark Nesca . 25 2. Evidence of Dr. Hediger 31 3. Evidence of Dr. Rodd . 32 VI. Analysis . 34 A. Mental Disorder, Disease of the Mind . 34 1.

Pre-Offence Status . 37 2. Post-Offence Status . 37 3. Mark Lindsay’s Mental State at the Time of the Offence . 40 B. Knowledge of the Wrongfulness of his Act 41 1. Relevant Evidence and Opinions . 41 2. Conclusion . 44 VII.

Summary and Conclusion . 44 I. Introduction [ 1 ] Mr. Mark Damien Lindsay (Mark Lindsay) faces a three-count indictment in relation to the August 15, 2011 killing of Dana Jane Turner (Dana Turner), the disposal of her body thereafter and obstructing justice for lying on August 17, 2011 to a police officer about her whereabouts and his contact with her. Mark Lindsay admits all of the facts necessary to make out the charges of murder and obstruction.

He has, however, raised the defence of not criminally responsible under the Criminal Code , RSC 1985, c C-46, s 16. [ 2 ] The Crown, during argument, acknowledged the count regarding the disposal of the body of Dana Turner had not been made out and it should be dismissed. Defence counsel, during argument, acknowledged at the time of the alleged offences Mark Lindsay was capable of appreciating the nature and quality of his actions but maintains he was not capable of knowing those actions were wrong. II. Issues [ 3 ] These concessions have restricted the number of issues that remain.

Has the defence proven on a balance of probabilities that: 1. at the time of the alleged offences Mark Lindsay suffered from a disease of the mind; and 2. if so, did it render him incapable of knowing his acts were wrong? [ 4 ] Mark Lindsay will be found not criminally responsible only if he establishes both of these on a balance of probabilities. III. Decisions

[5] The defence has not proven on a balance of probabilities that Mark Lindsay suffered from a disease of the mind. Even if hedid suffer from a disease of the mind, he knew his actions were wrong. IV. Law [6] Canadian criminal law has developed to reject criminal liability where persons have mental disorders that deprive them ofthe ability to know what they are doing is wrong. Instead, these persons are not held responsible for their conduct. [7] Sections 16 and 672.3(4) of our Criminal Code provide the statutory framework: 16(1) No person is criminally responsible for

an act ... while suffering from a mental disorder that rendered the person incapable of ...knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection1 until the contrary is proved on a balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to exempt from criminal responsibility is on the partythat raises the issue. 672.34 Where ... the judge ... finds the accused committed the act ... that formed the basis of the offence charged, but was at the timesuffering from mental disorder so as to exempt from criminal responsibility by virtue of subsection 16(1) ... the judge shall render averdict that the accused committed the act ... but is not criminally responsible on account of mental disorder. [8]

Section 16 of our Criminal Code limits punishment for persons who commit criminal acts to those persons who knowinglyact in a blameworthy manner.

The Criminal Code will not hold persons with mental disorders criminally responsible for acts whichotherwise would be crimes if the mental disorder deprives them of the ability to appreciate their acts are morally wrong. [9] However, an individual who engages in criminal activity while in a self-induced state of mental disorder which resulted fromthe consumption of alcohol or drugs cannot escape responsibility for his conduct: R v Cooper, (SCC), [1993] 1 SCR146, 146 NR 367. V. Facts and Evidence [10] The Crown and defence provided the Court with an Agreed Statement of Facts.

As well, the Court received evidence from anumber of witnesses: Mark Lindsay’s parents John and Louise Lindsay, law enforcement personnel, as well as expert psychiatristwitnesses who testified as to Mark Lindsay’s mental state. [11] I have taken the approach of reviewing the parts of the evidence separately, and in the process evaluated witness andstatement source credibility and reliability, and on that basis made findings of fact. This process tested the evidentiary foundation whichthe mental health expert witnesses then relied upon when they constructed their opinions. A.

Agreed Statement of Facts [12] The following comprise an agreed statement of facts entered in this trial by the agreement of Crown Counsel and DefenceCounsel pursuant to Criminal Code, s 655: 1. The events took place in the Province of Alberta, during the year 2011, unless specified otherwise. 2. Mark Damien LINDSAY (LINDSAY) was born January 28, 1987. 3. Dana Jane TURNER (TURNER) was born October 28, 1979. 4. TURNER and LINDSAY had been in an on again off again intimate relationship for several months. 5. During 2011, TURNER, aged 31 years, resided with her mother in Fort Saskatchewan, Alberta. 6.

On August 9, 2011 TURNER rented a blue Mazda 3 car bearing Alberta license plate J22840 (the “Mazda 3”) from Discount CarRentals in north Edmonton, Alberta because her own vehicle was in a repair shop. 7. On August 13, at approximately 1:30 p.m. TURNER’s mother, Wendy Yurko (YURKO) was preparing to leave her residence. Shesaw TURNER asleep in bed. When YURKO returned the same day, she found a note, in TURNER’s handwriting, advising thatTURNER was going to Edmonton to visit a friend. 8. TURNER did not arrive at her friend’s nor did her friend see or hear from TURNER. YURKO did not see or hear from TURNERagain. 9.

TURNER had been diagnosed with schizophrenia and a thyroid condition. She was on prescribed medications for both. BothLINDSAY and TURNER were long time crack cocaine users and used crack cocaine together at times. 10. On the evening of August 13 LINDSAY telephoned TURNER’S sister, Leah GAUF. LINDSAY asked GAUF for TURNER’stelephone number. GAUF did not provide this information. LINDSAY asked her to let TURNER know that he got TURNER’S message

and that he had called GAUF looking for TURNER. GAUF said she would pass along the message. GAUF called TURNER immediately and advised TURNER as requested by LINDSAY. 11. On August 13 TURNER and LINDSAY communicated via phone in voice and text message form. They continued communicating on August 14 and into August 15. The communications were friendly. 12. On August 14 at about 2:00 a.m. LINDSAY and TURNER attended the Mac’s Convenience Store at 11310 Jasper Avenue in Edmonton. LINDSAY entered the store, spoke to the clerk, went to the ATM, spoke to the clerk again and left.

Then, TURNER entered the store and used the ATM. They left together in the Mazda 3. 13. On August 14 at about 6:40 a.m. LINDSAY attended the 7-11 convenience store at 10832 — 102 Avenue in Edmonton and withdrew $200 cash from his TD Bank account. He left the 7-11 store in the Mazda 3. 14. On August 14 at approximately 7:00 a.m. LINDSAY and TURNER rented a hotel room at the Quality Inn West Harvest in West Edmonton. The transaction was captured on surveillance. The surveillance video shows that TURNER is at the front desk with LINDSAY. LINDSAY checked them in. LINDSAY was carrying a guitar case.

LINDSAY and TURNER were sexually intimate in the hotel room. 15. After checking in and leaving their belongings in the hotel room, TURNER and LINDSAY left the hotel and were heard by the clerk making plans to go to a McDonald’s to eat together. 16. On August 14 at approximately 5:03 p.m. TURNER’s debit card was used at a Domo gas station in Edmonton. TURNER was captured on surveillance video coming and going from the counter. She left walking in the direction of a Subway restaurant. LINDSAY and TURNER ate together at that Subway restaurant. 17.

The room key card issued to TURNER and LINDSAY was first used to gain entry to their room at approximately 7:00 a.m. and last used to gain entry at about 10:50 p.m. on August 14. 18. On August 15 at about 3:20 a.m. LINDSAY’s called TURNER’s cell phone. TURNER’s called LINDSAY’s cell phone at 3:38 a.m. and 3:42 a.m. The two made arrangements to get together. 19. On August 15 at approximately 4:00 a.m. LINDSAY and TURNER purchased food from McDonalds in Edmonton using TURNER’S debit card. This was the last time that TURNER’S debit card was used. 20. On August 15 at 6:53 a.m. TURNER sent a text message to LINDSAY.

This was the last communication made from that cell phone. 21. After purchasing food from McDonalds, LINDSAY and TURNER drove around in the Mazda 3 for a while before parking and smoking some drugs. TURNER was situated in the driver’s seat and LINDSAY was seated in the front passenger seat. LINDSAY pulled out a pencil from his pocket and stabbed TURNER in the eye, believing it would go through to her brain to kill her. TURNER screamed. He stabbed her in the other eye, at which point the pencil broke off. He then made a tourniquet with a shoelace and tightened it around her neck.

LINDSAY pulled TURNER’S body into the back seat, held onto the tourniquet and drove west to a lake near an old construction site in the St. Albert area. LINDSAY removed TURNER from the Mazda 3 and drove over her body twice, running over her head at least once to ensure she was dead. He then placed TURNER back into the Mazda 3 believing she was dead. 22. LINDSAY then drove to a gas station to fill the car with gas. 23. LINDSAY drove the Mazda 3 with TURNER’s dead body in the back seat to Walmart where he purchased a sleeping bag and a blanket to cover the body.

He then drove to RONA where he purchased a shovel and washed off the blood and brain matter that stained his hat that was situated in the back seat with the body. 24. On August 15 at approximately 10:00 a.m. LINDSAY called his parents, John and Louise LINDSAY shortly before arriving at their residence. LINDSAY intended to retrieve his passport, some money, his resumes and documents pertaining to his welding apprenticeship from his parents’ residence. LINDSAY’S father met him outside. LINDSAY parked down the street from his parents’ home. 25. On August 15 at approximately 10:41 a.m.

LINDSAY attended the TD Bank at the Bonnie Doon Mall in Edmonton and made two withdrawals from his account, both withdrawals being for $1,500 each. 26. LINDSAY then drove to his brother’s house, where he had been staying, to retrieve his bags. 27. On August 15 at approximately 12:00 pm LINDSAY was recorded on video pulling into the Rona in Leduc in a blue Mazda 3, walking into the store and picking out a shovel. Rona provided details of his purchase: 2 rakes, a shovel, a cultivator, and 2 pairs of blue Rona gloves totalling $107.56.

His TD debit card was declined (NSF), so he left the store and returned to pay with cash. 28. During his visit to RONA, LINDSAY went to the bathroom to wash blood/brain matter off his hat, which was located in the back seat with the body. 29. LINDSAY then travelled to Calgary, and on the way he pulled over to a well-site located 8 kilometers west of lnnisfail on the east side of RRI4 about 0.5 miles south of highway 354 to dispose of the body. LINDSAY put on a pair of the gloves and dragged TURNER’S body by the ankles from the Mazda 3 into the woods. 30.

On August 15, after hiding the body, LINDSAY continued to Calgary, where he called his former girlfriend, Morgan PEARS, at approximately 4:27 p.m. crying and saying he was lonely, and asked her and her son to move to Calgary to be with him and start off new there. 31. LINDSAY stayed in a Calgary motel on the evening of August 15, 2011.

32. On August 16 at approximately 12:44 a.m. TURNER’S cell phone was last detected by a cell phone tower located at 1716 — 16 Avenue NW, Calgary. 33. On August 16 at about 8:53 a.m. LINDSAY used his debit card at the TD Bank located at 4415 Memorial Drive SE, Calgary to make an account inquiry. 34. On August 16 at approximately 1:30 p.m. YURKO reported TURNER missing to the RCMP in Fort Saskatchewan. The RCMP created a missing person file. 35. On August 16, 2011 LINDSAY travelled back to Edmonton to keep an appointment. 36.

LINDSAY disposed of TURNER’S wallet contents and car keys down a sewer and her purse into the river near Mill Creek ravine in Edmonton. 37. LINDSAY used bleach and some of the other items purchased on August 16 and l7 to clean the Mazda 3. It took LINDSAY approximately one week to dispose of evidence. 38. On August 16 at about 7:47 p.m. LINDSAY used his debit card at the Safeway store located at 10932 — 82 Avenue in Edmonton to buy Armor-all vehicle wipes and RainX glass cleaner. 39. On August 16 at approximately 8:11 p.m.

LINDSAY used his debit card at the Safeway store at 5015—111 Street in Edmonton to buy bleach and garbage bags. 40. On August 16 at 9:57 p.m. LINDSAY used his debit card at the Safeway store at 8330 - 82 Avenue in Edmonton to buy a flashlight. 41. On August 17 at about 1:27 a.m. LINDSAY used his debit card at the Safeway store at 395 St. Albert Trail in St. Albert to buy bleach. 42. On August 17 at about 2:52 a.m. LINDSAY used his debt card at the Safeway store at 8118 —118 Avenue in Edmonton to buy bleach. 43. On August 17 Cst. David Schmidt left a message for LINDSAY. LINDSAY returned the call at 7:58 p.m.

LINDSAY advised Cst.

Schmidt as follows: • LINDSAY believed TURNER was at YURKO’s home; • they had phone contact on either August 13 or 14 to arrange for her to get her belongings from him; • he told TURNER that her guitar had been stolen but that he still had some of her items; • they texted back and forth on August 14; • the communications were friendly; • he believed TURNER was probably on a drug binge; • she normally smokes 3.5 of crack cocaine grams a day and also injects into her body; • she obtains her drugs from a gang, Red Alert, in Edmonton; • she used to date a person named Jeremy; • she believed the gang was following her and was fearful of it; • she also used to date a fighter named John LKU; and • LINDSAY did not do anything to her and did not know her whereabouts. 44.

On August 22 Discount Car Rentals reported the Mazda 3 had not been returned on time and was considered stolen. 45. On August 30, 2011, a police surveillance team followed LINDSAY throughout Edmonton and seized a cigarette he discarded on a public street. He was followed to the Greyhound station in downtown Edmonton, where he purchased a Greyhound ticket to Vancouver, British Columbia. 46. On September 14 LINDSAY attended the Pacific Central Station in Vancouver, British Columbia. He inquired about getting a ticket to the USA. 47.

On September 16 he purchased a Greyhound ticket and travelled back to Edmonton on September 17. 48. On September 18 police located the Mazda 3 in the parking lot of the Travel Lodge located at 10320 45 Street, Edmonton. 49. The Mazda 3 was seized and examined by RCMP forensics officers. There was a significant amount of grass, weeds and mud caught in the undercarriage. Although appearing relatively clean, areas of the interior tested presumptive for blood. A large amount of blood was located in the back underneath the driver’s side floor mat. Blood was also found on the underside of the driver’s seat (Exhibit 1).

The Mazda 3 was swabbed.

50. Lab Results of the swabs (Exhibit 2) determined the blood under the Mazda 3’s carpet and on the underside of the seat was TURNER’s. 51. On October 9 human remains were found by a civilian 8 km west of Innisfail in the same location where LINDSAY disposed of TURNER’s body. The remains had been scattered by animals and had been reduced to bones and hair. TURNER’s distinctive “Victorious” jacket was found at the scene, and a pair of women’s shoes. Also found was one of the two pairs of new RONA gloves purchased by LINDSAY. (Exhibit 3). 52. On October 11 Dr.

Tera Jones of the Calgary Medical Examiner’s Office began the autopsy on the found remains. Dr. Anne Katzenberg, an anthropologist assisted with the autopsy. Due to the condition of the remains, no cause or manner of death could be provided (Exhibit 4). On October 12, 2011, the forensic dentist, Dr. Bill Blair, confirmed through dental records, that the remains were those of TURNER. This was subsequently confirmed through DNA comparison. B.

Movements of Mark Lindsay and Dana Turner, Aug. 13-15, 2011 [ 13 ] Corporal Frey of the RCMP provided a power point presentation detailing the movements of Mark Lindsay and Dana Turner commencing August 13, 2011. It contained a number of photographs relating to the pair’s movements on August 14 and 15. The power point presentation included photographs relating to the remains of Dana Turner. It became an exhibit in these proceedings as tab 2 in Exhibit 1. C.

Medical and Correctional Records [ 14 ] Counsel for the defence and the Crown, by agreement, entered a substantial number of medical and correctional records which became Exhibits in these proceedings. These items will be referred to as necessary in the analysis portion of this judgment.

It is helpful now to review this information because these reports are a foundation for my conclusions on the relevance and probative value of other witness evidence, layperson and expert. [ 15 ] On December 28, 2007 Mark Lindsay was taken by the Edmonton Police Service to the University of Alberta Hospital under the influence of drugs and alcohol. Dr. Yal who saw him deemed him behavioural, and not a mental health patient. A

summary on December 29, 2007 by Sue Tewey, a social worker, noted Mark Lindsay self-reported that he had dropped out of school after Grade 9 and did not hold a job and only did general labor here and there. The report indicates Mark Lindsay was heavily intoxicated and under the influence of cocaine, and he was acting under the abuse of substance. No psychiatric consult was ordered. [ 16 ] A few days later on January 2, 2008, Dr. A. Cojocaru diagnosed Mark Lindsay with antisocial personality disorder and comorbid substance abuse including cannabis, alcohol and cocaine.

She noted his primary issues are now more “psychosocial in nature (homelessness, employment and finances).” [ 17 ] Later, on January 18, 2008 Sue Tewey prepared a social worker’s report although it is incorrectly titled a psychiatric assessment. This report resulted from a crisis response team (CRT) who attended his parents’ home when Mark Lindsay was found lying, covered in blankets, and asleep on the front porch. Her report documents that Mark Lindsay self-reported he is discouraged and depressed because his life has fallen apart. He is unable to hold a job and was angry with himself for abusing drugs.

She noted that he had been hearing voices in his head which he could not make out well but he knew that they were his own voice making up things he is thinking of. At the time he denied any other perceptual disturbances and showed no evidence of hearing the voices during the interview. [ 18 ] He further self-reported that he felt he had ruined his life with drugs and did not have a home or any belongings to speak of. Lindsay said he was upset that he has lost his home and family as a result of his use of drugs.

He noted the last drug use involved marijuana and hard cocaine the prior day as well as alcohol the previous week. The impressions of Ms. Tewey were of a young male living on the street, not allowed in the family home because of a history of violence and threats to family safety. She noted family reports of a long history of manipulation, lying, using threats of suicide as a means to get attention and that Lindsay had been noncompliant with medication, and abuses alcohol and street drugs.

The parents were refusing to allow him into the home, although they were willing to support him. [ 19 ] A medical record of Dr. McDonald with respect to October 16, 2008 has an entry indicating Mark Lindsay is self-reporting the use of alcohol daily. [ 20 ] Dr. Gendemann, Mark Lindsay’s psychiatrist prior to the offences, in a December 16, 2008 report to Mark Lindsay’s family physician Dr. Mah, advised that Mark Lindsay had been drinking alcohol on a regular basis but had not consumed any drugs over the past few weeks prior to his appointment. At that time the diagnosis of Dr.

Gendemann was psychosis NOS (not otherwise specified) with the likely differential being a drug-induced psychosis. He did note at the time the outside possibility of a prodromal schizophrenic disorder. In a subsequent note February 2009, Dr. Gendemann described Mr. Lindsay as ‘showing some Axis II traits, (Cluster B, antisocial)’, combined with ‘drug/alcohol use.’” On June 3, 2009 Dr. Gendemann in correspondence to Dr. Shaigec advised him “As I understand it, he has some legal issues.

I believe these may be partly related to his past difficulties with substance abuse and substance- induced psychosis.” [ 21 ] Expert psychiatric witness Dr. Rodd in his report provided a partial

summary of the 2009-2011 medical records in evidence in the trial which include:

a) hospital discharge

summary January 16, 2009 of Dr. L. War, diagnosing Mark Lindsay with substance-induced psychotic disorder;

b) discharge

summary April 11, 2011 Dr. G. Hetherington, psychiatrist, diagnosed Mark Lindsay with substance abuse/dependence, cocaine use preferred;

c) discharge

summary April 17, 2011 Dr. J. Banash, psychiatrist, diagnosed Mr. Lindsay with alcohol abuse;

d) discharge

summary May 10, 2011 from Alberta Hospital, Dr. K. Morin a psychiatrist diagnosed Mr. Lindsay with substance abuse (alcohol, cocaine) abuse and dependence, substance-induced psychosis and Cluster B personality traits. [ 22 ] As the period from March 21, 2011 to May 10, 2011 encompasses the last of the evidence relating to Mark Lindsay’s diagnosis and treatment before the killing, it is worthwhile to add some details to Dr. Rodd’s

summary of the various discharges reports. On March 21, 2011 a crisis response team responded to a call from Mark Lindsay at his apartment. The mental health crisis service report details Mark Lindsay reporting “that he overheard his neighbour’s TV and radio state ‘I’m going to kill you.’” [ 23 ] The report prepared by an individual identified only as Peter V, an RPN (assumed to mean registered psychiatric nurse) went on to describe the circumstances in which they found Mark Lindsay.

He noted Mark Lindsay had barricaded himself in his apartment using a wooden barricade on the door which Lindsay removed using a power drill. The psychiatric nurse noted him to be “paranoia, in response to unseen and unheard stimuli.” He noted that Mr. Lindsay had been sleeping with two large knives beside his bed for protection. The psychiatric nurse concluded “Client presented as thought blocking, paranoid, suspicious and guarded. Client also presented to be visually tracking and responding to unseen unheard stimuli.

Clear and present danger to self and others apparent.” [ 24 ] The team took Mark Lindsay to the University of Alberta Hospital and thereafter he transferred on March 22, 2011 to the Grey Nuns Hospital. Dr. Hetherington prepared a discharge

summary in relation to his discharge April 11, 2011: At the Grey Nuns Hospital he was very shaky, nervous and possibly confused. He had poor judgment and no insight and said he had been drinking heavily for the last ten plus days. ... When seen by the writer on 23 rd of March, 2011, he was diagnosed with substance- induced psychosis with paranoid delusions and also delusions of reference. He believed on admission that neighbours were trying to kill him. This gentleman is a patient of Dr.

Gendemann whom he reported seeing approximately six months ago. [ 25 ] At the time of the crisis intervention Mark Lindsay reported having consumed a couple of beers the last weekend but no regular use of alcohol. However, that self-report of alcohol consumption is quite different from what Mark Lindsay ultimately reported and was recorded in Dr. Hetherington’s discharge report. [ 26 ] The report indicates: At a family meeting his brother and sister attended as his parents were not available. They were concerned about him being diagnosed and was suggested that the diagnosis was schizophrenia, substance-induced.

Differential diagnosis schizophrenia, disschizoaffective disorder. ... It became apparent at the family meeting that the patient was passive in trying to help himself and it was stressed that he has to work to do himself in dealing with his problems starting with his substance-induced issues. ... His brother stressed he had a binge and purge cycle and questioned schizophrenia. Both said that it was not all about his drinking. ... MENTAL STATUS AT TIME OF DISCHARGE: Appearance adequately kept, re; grooming and hygiene. Behaviour quietly behaved. Speech coherent and relevant.

Mood; he continued to say he had some ups and downs but did not present to staff with affective problems. Appetite was good. Sleep was good. He had no suicidal ideation. He was not evidently depressed or psychotic and no hallucinations were elicited. He does not have a place to go. ... There was minimal evidence that he realizes how important is his need for treatment for substance abuse in spite of this being emphasized. ... DISCHARGE MANAGEMENT PLAN: He was discharged on 11 April 2011. He has information about substance abuse treatment centres.

He had information with some last week and was to contact them again. [ 27 ] After his discharge from the Grey Nuns Hospital on April 11, 2011, Mark Lindsay returned on April 17, 2011 and Dr. Bannish included the following in his discharge

summary regarding the discharge of Mark Lindsay from that hospital April 17,2011: He had been discharged from the Grey Nuns Hospital Monday prior to this ER encounter but began drinking after discharge 6-pack of beer on Monday. He then shared a 26 oz with three friends over two days and then another 26 oz with one friend on a subsequent day. He began feeling depressed and anxious whilst home alone on Thursday after stopping drinking. On Friday he reported he could not get out of bed and began having suicidal ideation.

He phoned his brother on Friday night who met up with him and sat outside his home with the patient. The patient drank a micky to help himself feel normal but felt a gripping pain inside like he needed ‘to scream or crawl out of my skin.’ He went to the ER with his brother with his anxiety attack, feeling anxious, tremulous and fidgety. He described an intense feeling of free (sic) when he entered his apartment was not sure what this was triggered by. ... The patient had been non-compliant with medications since discharge. His mood was labile.

He had anhedonia, poor sleep, poor energy, no guilt, poor concentration and one episode of visual illusion of something moving under his bed. He had no psychotic symptoms. His drinking was witnessed by his brother and confirmed. With regards to his suicidal plan, he had planned to take his pills and overdose or use a knife to slit his wrist, which he has done once in the past. [ 28 ] The diagnosis of Dr. Bannish was alcohol abuse.

Later on April 17, 2011, Mark Lindsay was admitted to the Alberta Hospital Edmonton. [ 29 ] An occupational therapist there noted the following on his chart on May 2, 2011: Client was able to give a brief history, he stated he was experiencing auditory and visual hallucinations as well as withdrawal tremors as a result of constant alcohol use during a two-week period. ... Client reported that goals for his stay at AHE are to stop using alcohol, return to work and to take his drivers licence. These are important to the client because he does not want to go to Henwood, rather he wants to return to work.

[30] On May 2, 2011 a notation was made on Mark Lindsay’s chart indicating that “he was spending most of evening off unit ongrounds with female co-pt number 57631.” Patient 57631 was Dana Turner. [31] Dr. K. Morin, a psychiatrist at Alberta Hospital, diagnosed Mark Lindsay with substance abuse, alcohol, cocaine, abuse anddependence, substance-induced psychosis and cluster B personality traits. [32] Three further assessments were conducted post-offence. These were made by mental health professionals who also testified asexperts in this matter. The first diagnosis of Mark Lindsay as a schizophrenic came from Dr.

Hediger in the fall of 2012. That diagnosisoccurred approximately 14 months after the offence and notably occurred after his arrest for the killing of Dana Turner and his statementto Corporal Morton on March 16, 2012. [33] The next assessment of Mark Lindsay came from by Dr. Rodd in July, 2013. Dr. Rodd also testified as an expert in this trial.As pointed out by the defence, Dr. Rodd noted symptoms of delusions and thought-blocking but he did not diagnose Mark Lindsay as aschizophrenic. [34] Last, Dr. Nesca interviewed Mark Lindsay in 2015 and 2016. After the latter examination Dr.

Nesca concluded Mark Lindsaysuffered from schizophrenia. D. Evidence of Lindsay’s Parents [35] Both Mark Lindsay’s parents, John and Louise Lindsay, testified. They provided evidence on Mark Lindsay’s conduct andcharacteristics from childhood onward. 1. Witness Credibility and Reliability [36] Evaluation of witness credibility and reliability is a common yet difficult task for a finder of fact. It is less a question of rulesthan a multifactor and contextual approach to what a witness provides and does not provide as evidence, taken along with the whole ofthe case.

In White v R, (SCC), 1947 CarswellOnt 8 paras 8-10, [1947] SCR 268, the court said: The issue of credibility is one of fact and cannot be determined by following a set of rules that it is suggested have the force of law and,in so far as the language of Mr. Justice Beck may be so construed, it cannot be supported upon the authorities.

Anglin J. (later ChiefJustice) in speaking of credibility stated: by that I understand not merely the appreciation of the witnesses' desire to be truthful but also of their opportunities of knowledge andpowers of observation, judgment and memory – in a word, the trustworthiness of their testimony, which may have depended very largelyon their demeanour in the witness box and their manner in giving evidence. Reymond v. Township of Bosanquet [(1919), (SCC), 59 Can. S.C.R. 452, at 460]. The foregoing is a general statement and does not purport to be exhaustive.

Eminent judges have from time to time indicated certainguides that have been of the greatest assistance, but so far as I have been able to find there has never been an effort made to indicate allthe possible factors that might enter into the determination. It is a matter in which so many human characteristics, both the strong and theweak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity toremember and his accuracy in statement are important.

It is also important to determine whether he is honestly endeavouring to tell thetruth, whether he is sincere and frank or whether he is biassed, reticent and evasive. All these questions and others may be answered fromthe observation of the witness' general conduct and demeanour in determining the question of credibility. [Emphasis added.] 2. John Lindsay [37] John Lindsay and his wife, Louise Lindsay, have four children. Mark Lindsay is the youngest of the four.

The Lindsaysadopted him as an infant. [38] During Mark Lindsay’s elementary school years, John Lindsay noted that he preferred to play alone, appearing to enjoy hisown company. [39] Mr. and Mrs. Lindsay discovered when he was approximately 10 or 11 years old, he had begun abusing Ritalin by snorting it.An older sister, who had a prescription for the drug, provided it to him. [40] As an adolescent, Mark Lindsay began carrying out destructive actions in his bedroom in the Lindsay home. John Lindsaynoted that despite his best efforts to prevent this, Mark Lindsay would mark and carve his desk.

He estimated that after about three years,nearly one-quarter of the desk had been carved to the point that it was gone and he had also damaged the drywall in his bedroom sobadly that when Mark Lindsay left the home they replaced the drywall. [41] At approximately 12 years of age, Mark Lindsay began to experiment with alcohol. John Lindsay noted liquor disappearingfrom his liquor cabinet so he placed a lock on it. That did not deter Mark Lindsay, so he locked the liquor in a cabinet in the garage. Itmade no difference.

Mark Lindsay broke in, took it, and seemed indifferent to whatever John Lindsay thought of the matter. MarkLindsay appeared to his father to be without remorse or shame regarding his conduct. [42] About age 14, the Lindsays discovered Mark Lindsay was experimenting with marijuana. John Lindsay observed his sonwhen he thought he was high on something and over a three-year period twice found a small amount of marijuana in his room, three orfour times found a marijuana pipe and on two occasions found cannabis resin. The child Mark Lindsay did not deny it and did not seemto care what his parents might think. [43] Mr.

Lindsay, who served as a police officer from 1976 to 2001, testified he knew the difference between cocaine and

marijuana and would recognize cocaine. He did not find any evidence his child used cocaine. [ 44 ] Mark Lindsay enrolled in St. Joseph High School in the fall of 2003 but by January of 2004, he was expelled for non- performance and possession of marijuana. [ 45 ] Throughout Mark Lindsay’s elementary and junior high school years he was not an aggressive child so far as fighting with other children. He did, however, at one time fight with his brother and managed to strike his father during the incident. [ 46 ] After his expulsion from St.

Joseph High School, John Lindsay asked Mark Lindsay to enrol in the Fresh Start Program. Louise Lindsay confirmed he enrolled in this program and completed most of his grade 10 credits. Throughout this time John Lindsay noted that his son seemed passively indifferent to authority and simply did his own thing. He consistently showed poor compliance with the house rules. Nothing the parents did in terms of rewards for good behaviour and consequences for bad behaviour seemed to make a difference. [ 47 ] In late 2004, at age 17, Mark Lindsay abruptly left home without advising his parents of where he might be going.

They came to believe he stayed with a friend. In 2005 he lived for a time with a girlfriend. He obtained some employment during 2005 as a laborer painting fences and then as a roofer. [ 48 ] Near the beginning of 2006, he seemed to enjoy a positive lifestyle while maintaining employment. [ 49 ] By late 2006 Mark Lindsay approached the Lindsays about moving home, they agreed, and in January, 2007 he enrolled in a welding program while living at home. [ 50 ] His son impressed John Lindsay with how hard he worked at his studies. Mark Lindsay enjoyed the welding work.

He worked diligently at his studies and often turned to his father for help with the mathematics in his course work. [ 51 ] However, by late 2007 Mark Lindsay began to breach the house rules with respect to the use of alcohol and bringing friends into the house who did not meet with the approval of his parents. John Lindsay noted that, while Mark Lindsay lived at home, he occasionally came home drunk. Whether or not he was intoxicated, John Lindsay found Mark Lindsay not to be a good person to live with when he had been drinking.

Accordingly, by December of 2007 the Lindsays insisted he leave their home. [ 52 ] In January of 2008, Mark Lindsay again left home and rented his own apartment. [ 53 ] During 2008 Louise Lindsay helped their son manage his finances because he had difficulty remaining focused and organized. Louise Lindsay helped him organize his affairs to ensure he paid his rent and met other monthly obligations. By 2009 he had commenced his third-year welding apprenticeship. [ 54 ] John Lindsay had concerns with respect to the mental health of his son. He noted problems as early as the Christmas-New Year period of 2005-2006.

At that time Mark Lindsay accused John Lindsay of making fun of him with words and gestures. John Lindsay tried to tell him that he had done nothing of the sort. [ 55 ] The problem intensified in 2006 when Mark Lindsay began telling him that others were coming into his apartment and taking things.

No matter how John Lindsay tried to reason with him, his son would not be persuaded this was not the situation. [ 56 ] By the summer of 2006, the problem became more pronounced and Mark Lindsay began to tell John Lindsay that a group of people believed that Mark Lindsay had raped a woman and the group would take revenge. It seemed to John Lindsay that Mark Lindsay feared for his personal safety. At times the father noted his son’s speech became nonsensical with mystical references. [ 57 ] John Lindsay observed 2007 was a better year as his son focused on his welding course.

He made only occasional references to a lack of support from his parents and the group of people he now believed were trying to kill him. This delusional conduct seemed to occur approximately once per month. [ 58 ] Towards the end of 2007, John Lindsay thought his son might be hearing voices. He inquired of Mark Lindsay regarding this and Mark Lindsay advised that he ought to know as John Lindsay was there with him. [ 59 ] During 2008 Mark Lindsay lived in an apartment and began to tell his parents about people coming into his suite.

He became so concerned he wanted John Lindsay to help him install new locks, which the father did to try and assure his son of his security. Mark Lindsay began to tell his father about people on the roof or on his balcony talking about killing him. John Lindsay went so far as to go out on the balcony, look about and try to assure his son he could see no one on the balcony or on the roof. Once while at his son’s apartment, Mark Lindsay told him there was someone in the storage closet.

John Lindsay checked and found no one. [ 60 ] His son would not respond to any of John Lindsay’s assurances to the contrary and he began to sleep on the floor of his apartment approximately halfway between the balcony and the door. John Lindsay took this as a response by his son to his fears in order to be prepared to escape. [ 61 ] By this time it appeared to John Lindsay that his son, in these situations, would hardly note his father’s presence and appeared to exist in a different reality.

He noted his son would not respond for a few minutes and then would after a time become normal without a good memory of the incident. [ 62 ] In 2008 while living at the same suite, Mark Lindsay called his father to tell him he had heard a radio broadcast from another suite discussing him. [ 63 ] Towards the end of 2008, John Lindsay noted his son seemed depressed, withdrawn, and continued to tell him people were trying to kill him and could look through other people’s eyes to see him. This made his son quite fearful. John Lindsay noticed his son

seemed more comfortable when he did not go outside but remained inside in low light. [ 64 ] In the summer of 2009 John Lindsay, while driving his son home, decided to turn into a convenience store. Mark Lindsay immediately said to him “don’t go in” and seemed quite frantic. Mark Lindsay told his father people in there would kill him. It appeared to John Lindsay the situation terrified his son. The incident occurred without warning. John Lindsay drove away and returned to their route without going to the store. [ 65 ] Another incident occurred in the Lindsay home while Mark Lindsay visited.

Mark Lindsay told his father there was someone in the backyard. John Lindsay went, looked, came back and advised his son there was no one there which seemed to quell the fears of his son. [ 66 ] John Lindsay testified that by 2009 Mark Lindsay began to speak to his father of Healers, serial killers and hitmen. It seemed to John Lindsay his son’s world was populated by these people. His son continued to tell him these people wanted to hurt him and indeed kill him. This became more intense in 2009 when he would speak to his father of this every three or four weeks.

The discussions usually occurred when the two were travelling together in the car or when Mark Lindsay visited the Lindsay home. [ 67 ] These incidents, which John Lindsay considered to be delusions, continued on to 2010 when he noted his son’s fears were increasing to the point they consumed him. [ 68 ] By the end of 2010 Mark Lindsay, withdrawn and distraught, decided to move to where the people who wished to harm him could not find him.

Mark Lindsay moved to Whyte Avenue, a good distance from where John and Louise Lindsay resided. [ 69 ] John Lindsay testified that on one occasion when John Lindsay visited his son at the apartment on Whyte Avenue, Mark Lindsay advised him one of the group, a Healer, lived below him. He told his father of hearing broadcasts calling on others to kill him. [ 70 ] During 2011 John Lindsay noted his son became more withdrawn and he began to lose contact with him.

He became quite concerned about the situation. [ 71 ] In March of 2011, Mark Lindsay spoke to his father about his safety and advised him of a plot to kill him and the police were in on it. John Lindsay, at a loss of what to do, tried to assure him that the police would never be in on matters such as this. His son remained adamant to the contrary. [ 72 ] On March 21, 2011 Mark Lindsay barricaded himself in his apartment and called his mother. She advised him to call 911.

He did and as previously described the police with a social worker arrived and took him with them. [ 73 ] Grey Nuns Hospital admitted Mark Lindsay where he remained for approximately three weeks, before his release on April 11, 2011. [ 74 ] He returned to the hospital April 16 and then was admitted to Alberta Hospital on April 17, 2011. By early May 2011 he had met and began to spend time with Dana Turner at the hospital.

Alberta Hospital released him May 10, 2011. [ 75 ] Sometime after his release he called his parents from the Edmonton Remand Centre as he now faced charges of assaulting Dana Turner with a knife on June 22, 2011. Mark Lindsay would not provide his father with any details nor allow him to speak with his lawyer. [ 76 ] He gained his release August 12, 2011 when he entered a guilty plea. He received a custodial sentence for stabbing Dana Turner in the head with a knife.

His time in custody prior to his guilty plea satisfied the custodial sentence. [ 77 ] When arrested for the assault on Dana Turner, Mark Lindsay asked his parents to clean out his apartment. John Lindsay, his wife Louise and their son went to do as asked. John Lindsay did not note any evidence of drug use other than finding three or four marijuana pipes. He also found 40 to 50 liquor bottles. [ 78 ] On August 13, Mark Lindsay attended at the Lindsay home for brunch. To his father he seemed very distressed. He cried and talked quickly moving from one subject to the next.

John Lindsay understood from him he thought he should not have pled guilty to the assault on Dana Turner. [ 79 ] John Lindsay next saw his son on Monday, August 15, 2011at the front door of the Lindsay apartment building. While waiting to meet his son he saw him drive by in a car. This concerned him as he knew his son did not hold a driver’s licence. His son drove north past the house, parked the car and walked up to speak with his father. His father challenged him about the car and his driving without a satisfactory resolution. [ 80 ] Louise Lindsay arrived and the three went to a park.

John Lindsay observed his son as distressed, agitated and not listening to what John Lindsay tried to tell him. After a while his son abruptly said goodbye and walked away. John Lindsay did not see his son again until Mark Lindsay found himself in remand with respect to the offences giving rise to this trial. 3. Louise Lindsay [ 81 ] The evidence of Louise Lindsay generally paralleled the testimony of her husband.

She provided the following additional information. [ 82 ] Louise Lindsay testified that in his Grade 6 year Mark Lindsay was diagnosed as having ADHD [“Attention Deficit Hyperactive Disorder”]. [ 83 ] Louise Lindsay recalls her son took medications in Grade 8 and 9, although she did not recall if it resulted from the ADHD

diagnosis. [ 84 ] Louise Lindsay noted that her child would act impulsively, not thinking through his actions. During his Grade 6 year he pulled a fire alarm in his school and then said he was sorry. To her it was an example of him not considering the consequences of his actions. [ 85 ] Dr. Blackman, a psychiatrist, advised Mark’s parents to use support for good behaviour and tough love, i.e., consequences, for negative behaviour.

However, notwithstanding their efforts to help him, Mark Lindsay left home in November of 2004. [ 86 ] She confirmed that in 2006 she also began to see behaviour in her son which she considered to be symptoms of paranoia.

She too noted the conversations wherein Mark Lindsay told her and his father people were coming into his apartment. [ 87 ] Louise Lindsay related various discussions with her son wherein he advised he did not feel safe because of people listening, watching him and that these people were connected to the group who wanted to harm him. [ 88 ] In 2009 an incident occurred which Louise Lindsay found disturbing. She had taken her son to a store so he could buy items for his welding work. In particular, he needed a pair of boots. Her son spoke to a staff member who went to look for the boots.

While waiting for the return of the staff member, Mark Lindsay said to his mother that the man over there was telling other people terrible things about him. Louise Lindsay looked at the man but he was not even looking at the Lindsays or speaking. Mark Lindsay insisted that he was notwithstanding anything his mother told him. After becoming quite upset with her, and asking why she could not hear the man, he insisted they leave and they left. [ 89 ] Shortly before the admission of Mark Lindsay to the Grey Nuns Hospital in March of 2011, he called his parents saying he wanted to come over and talk with them.

He stopped by the next evening for dinner and afterwards explained to them that he had something important to tell them. He advised that the plan to kill him would soon come about and that he was prepared for it. He had heard of it on the television. She arranged for him to meet with Dr. Gendemann on March 16. She took the LRT to meet her son at the doctor’s office, but Mark Lindsay did not appear for the appointment. [ 90 ] On March 21, 2011 her son barricaded himself in his apartment and called her.

She advised him to call 911. [ 91 ] Shortly after his release from the Fort Saskatchewan Correctional Centre in August of 2011 Louise Lindsay recalls walking with her son in Grandin Park and the Legislature grounds. He seemed upset. From his words she took it that he felt hopeless about his life, about how he would function, how he would find work and hopeless about how he would go forward after having served time in Fort Saskatchewan. She commented to him that it made her sad to see him so distressed.

He said he wished he could believe her. [ 92 ] She did not see him again until August 26 when she gave him his medications at a Safeway store on Whyte Avenue. 4. Evidence of John Lindsay and Louise Lindsay [ 93 ] Unless otherwise noted, I accept the evidence of John Lindsay and Louise Lindsay. They were consistent in their individual testimony and much of their testimony aligned with the other. Many of the incidents and subjects they discussed were the kind of memorable events retained by concerned parents.

That said, I do have some concerns. [ 94 ] An issue arose as to whether Mark Lindsay used the term “Healers” in discussion with his father before Mark Lindsay used that language post-offence to explain himself to the police. The Crown put to John Lindsay that he did not provide the word in his statement to the police or at the preliminary inquiry. John Lindsay explained no one asked him a question which would lead him to use the term.

It seems odd John Lindsay would not include the description of the group allegedly wishing to harm his son. “Healer” is an unusual and memorable description of a group bent on hurting Mark Lindsay. One would think John Lindsay would remember and tell the police the name of the group. Considering the overall assessment of John Lindsay’s credibility, I accept that he heard this unusual description from his son and recalled it accurately at the trial.

However, not having used the term in speaking with the police or testifying at the preliminary inquiry, it is more likely John Lindsay is confusing what he heard (directly or indirectly) after the killing with what his son earlier said to him about the conspiracy.

The fact John Lindsay did not use the term “healers” in his police statements and at the preliminary inquiry leaves me unable to conclude that John Lindsay heard the term “healers” in reference to Mark Lindsay’s pre-offence conspiratorial statements. [ 95 ] John Lindsay also understated his observations that indicated substance abuse by Mark Lindsay when he helped clear out his son’s apartment in July 2011. He testified he found a number of empty liquor bottles; a “number” turned out to be 40 to 50 bottles.

Although we do not know who consumed the liquor or over what period, that represents the possible consumption of a significant amount of alcohol by his son. He also stated in examination-in-chief in answer to a question if he found evidence of drug use in the suite, “not of drug use.” Then in response to a leading question, he acknowledged he had found three or four marihuana pipes. [ 96 ] From this I conclude that John Lindsay minimized his son’s patterns of substance abuse. The corollary of that is that I accept the parents’ comments on identified substance abuse as reliable.

What is clear is that Mark Lindsay had a disturbing and extensive history of drug and alcohol abuse: • At age 10 he was snorting Ritalin. • By age 12 he was stealing alcohol, despite attempts to lock that away. • His alcohol theft continued until liquor was entirely removed from the home. • By age 14 he was using marijuana, which is confirmed by his expulsion from St. Joseph High School in 2004 around the time he turned 17.

[ 97 ] Upon their son leaving home in November of 2004, the Lindsays had little knowledge of the type or amount of alcohol or drugs Mark Lindsay used, except when he returned for a time during 2007. I accept the Lindsays’ evidence that during 2007, though Mark Lindsay applied himself to his studies, Mark Lindsay began to consume alcohol and break the house rules to a point where his parents required him to leave their home and seek his own residence.

His father testified and I accept that his son in 2007 came home drunk occasionally but, intoxicated or not, he found Mark Lindsay not “a good person” when drinking. [ 98 ] The Lindsays report psychological issues throughout Mark Lindsay’s life, but their evidence is that Mark Lindsay perceived atypical and unsupported threats from 2006 onward. This is also a period in which hospital records report medical personnel noted and Mark Lindsay described his misuse of drugs and alcohol. Indeed he self-reported he had chosen them over his family.

He went further to acknowledge drugs and alcohol were ruining his life, and had cost him his home and job. [ 99 ] Except as otherwise noted, I accept what the Lindsays have told me as to their observation of Mark Lindsay’s behaviour. What they could not tell me, because they would not know, is the connection, if any, between his drug and alcohol use and his psychological problems. Throughout much of this period Mark Lindsay was living elsewhere, and his parents saw him only on occasion.

They therefore cannot correlate whether his atypical reports of threats, communications, and his unusual ideas were or were not related to his alcohol and drug use during this period. This is not a criticism of the Lindsays. They could not have anticipated a need to relate years later a connection between their son’s alcohol and drug abuse to a specific period of delusions or hallucinations exhibited by their son.

The most they could do was tell what they knew of their son’s drug and alcohol use and that he related his paranoid thoughts to them. [ 100 ] What I find significant is that the period in which John and Louise Lindsay do have better data on the conduct of their son, 2007, is also the period where Mark Lindsay’s mental condition seemed to improve. John Lindsay rated the period in 2007 where Mark Lindsay lived with his parents as a better year for his son. Mark Lindsay made only occasional references to the group of people who wished to harm him and the lack of support from his family.

John Lindsay estimated delusional conduct on the part of his son occurred approximately once per month. [ 101 ] During this time in 2007 Mark Lindsay applied himself to his studies and for a time lived by the house rules. The Lindsays did not testify in detail as to the house rules, however from their evidence one can infer the rules required their son not to allow his use of alcohol to affect their home life, let alone illegal drugs.

By the end of 2007 Mark Lindsay had chosen alcohol over family and the Lindsays, following the advice of their son’s psychiatrist, employed tough love on him and required that he leave. The reports of Dr. Yal, December 28, 2007 and Sue Tewey, December 29, 2007 confirm his choice. The period of improved behaviour and Mark Lindsay’s improved sobriety implies Mark Lindsay’s aberrant behaviour was linked to substance abuse, rather than originating from an organic cause. E. Statements to Authorities [ 102 ] On August 29, 2011 Mark Lindsay met with Corporal Morton of the RCMP.

The two spoke while seated in the officer’s police vehicle in Edmonton, Alberta. During the discussions Mark Lindsay misled the officer with respect to his contact with Dana Turner after his release from the Fort Saskatchewan Correctional Centre. When the conversation turned to his contact with her on August 13, 2011 and thereafter, he advised the officer he was feeling uncomfortable, he had to run off and he was going out to the bar with a buddy. The statement ended shortly thereafter.

The statement became an exhibit in these proceedings at tab 1 of Exhibit 3. [ 103 ] Later on March 16, 2012 Mark Lindsay, while detained in the Red Deer RCMP detachment, again met with Corporal Morton and provided a 5-hour 32-minute statement. In it he provided a full confession to the killing of Dana Turner and the disposition of her body. This statement became an exhibit in these proceedings at tab 2 of Exhibit 3. 1. Admission of the Statements to Authorities [ 104 ] The accused did not testify in this trial.

The two statements of Mark Lindsay to Corporal Morton went into evidence as part of the Crown’s case after a voir dire with respect to whether as statements to a person in authority they were made voluntarily. The defence took no issue with the position of the Crown that the statements were voluntary. [ 105 ] As the statements went in after a voir dire ruling which found both voluntary, these statements became evidence both for and against the Crown. 2.

Is the March 16, 2012 Statement True? [ 106 ] The defence argues that because some of the facts contained in the Agreed Statement of Facts matches some of the evidence in the statement to Corporal Morton, the Court should accept that Mark Lindsay told the truth to Corporal Morton regarding matters not in the agreed statement of facts. [ 107 ] Mark Lindsay’s March 16, 2012 statement to Corporal Morton contained a confession to his killing of Dana Turner. It describes Lindsay’s motivation for the killing, his belief she had a

part in a conspiracy against him, so he attacked and killed her. [ 108 ] Counsel for Mark Lindsay urges me to consider the statement that Mark Lindsay made to Corporal Morton on March 16, 2012 with respect to his psychotic delusions as true. The basis for this argument is that many aspects of Mark Lindsay’s narrative align with the Agreed Statement of Facts, including: • details of the killing of Dana Turner, • the visit to his parents on August 15,

• where Lindsay left the body, • his purchase of the gloves, • his explanation of barricading himself in his apartment, • purchase of the three containers of bleach, • the photo radar ticket, and • his description of placing Dana Turner’s jacket near her body, where it was found. [ 109 ] These factual parallels tell us little of the motivations and perceptions of the person engaged in the homicide and its aftermath.

Instead, to evaluate those we need to look to a broader set of information. [ 110 ] I do not accept Mark Lindsay’s statements to Corporal Morton regarding his thoughts about Dana Turner planning to kill him as true. Rather, I conclude this narrative is an intricate reconstruction of the events of August 14-15, 2011, retrospectively annotated to provide an excuse for Lindsay’s killing Ms. Turner. [ 111 ] I reach this conclusion by commencing with a consideration of his contact with Dana Turner in late April or early May 2011 at Alberta Hospital. Staff observed them to be friendly and spending time together.

Nothing in the Alberta Hospital records indicates any fear of her. On his discharge, and thereafter, there is no report of delusions or hallucinations regarding Dana Turner as part of any group wanting to harm him. [ 112 ] Shortly after the two reconnected upon her discharge from Alberta Hospital, he stabbed her in the head June 22, 2011.

No record of a self-report from Mark Lindsay either by way of the transcript from his guilty plea, medical report or from his time at Fort Saskatchewan from June 22 to August 12 indicates any fear of Dana Turner. [ 113 ] Upon his release from Fort Saskatchewan August 12, 2011 and his discussions shortly thereafter with his mother about the hopelessness of his situation, he made no reference to Dana Turner as part of any group or conspiracy wishing to harm him or indeed, otherwise. [ 114 ] There is nothing in evidence regarding the communications between Mark Lindsay and Dana Turner after his release from Fort Saskatchewan on August 12 to indicate that he had any fear of her. [ 115 ] Indeed on August 14 2011 they were sexually intimate at the hotel.

At line 327 page 112 of his statement to Corporal Morton there is a telling comment from Mr. Lindsay which does not fit the pattern of his previous behaviour in relation to those he feared. He states, “After I left Dana’s, um, hotel on a very bad note um, uh, I was trying really hard with her to get along but she was being extremely difficult in attacking me and basically sending out the signal and the vibe that you’re going to get killed right away...” Mark Lindsay continued at line 328 page 113 ... “Because you stabbed me in the head and there’s no explaining it, no getting around it and um, that she hated me.

And I was trying my hardest to be playful and goofy and just joking around and stuff. Try to, trying to be friends which was the wrong thing to do. I know I should have been respectful.” After leaving Dana Turner at the hotel he went to his brother’s place. From the statement just quoted he went there apparently after she told him she hated him and he soon would be killed. [ 116 ] However upon her contacting him again, he returned from his brother’s apartment to be with her. This is entirely out of keeping with his previous conduct when he professed fear of the group trying to kill him.

On those occasions he withdrew himself as much as possible from any risk. One time he would not enter a store, on another he left a store. He slept in the middle of his apartment floor. In March of 2011 he barricaded himself in his apartment. It is obvious his response to a threat was to withdraw and protect himself. Similarly John Lindsay reported that Mark Lindsay actually moved from one apartment to another to allay his fears of this group. Consistently, Mark Lindsay chose to withdraw and hide when concerned for his safety. On August 15, 2011, however, he did not withdraw; he returned to be with Dana Turner.

He had no fear of her. [ 117 ] There is one point raised by the defence that does give me pause. That is the manner in which he carried out the killing. [ 118 ] There is no evidence as to when Dana Turner died. Mark Lindsay carried out three distinct actions to cause her death commencing with stabbing her in both eyes with a pencil, strangling her and then running over her body. This he explained was because of his fear she was a witch and she would come alive.

The horrible acts do give some credence to his suggestion that his unusual mode of attack was to make certain that, as a witch, she did not come back to life. If that truly was his fear, he has no explanation for remaining with the body for an extended period of time thereafter. Whether she died after the stabbing, the strangulation or after having been run over with the motor vehicle, if he believed her to be a witch who could reanimate, then he would not, even in his deluded thinking, remain with the body.

On the whole of the evidence from the meeting of Mark Lindsay with Dana Turner until the time of her death, there is no evidence until March 16, 2012, when he gave his statement to Corporal Morton, that he had any fear of Dana Turner. Accordingly, I do not accept as truthful his statement to Corporal Morton that he connected Dana Turner to a group of killers who wished to kill him and he acted first to prevent an imminent threat from Ms.

Turner. [ 119 ] My rejection of Mark Lindsay’s narrative on how Dana Turner and her death fits into his larger paranoid conspiracy structure of “Healers”, hidden messages, and malevolent conspiracy obviously has potential implications on the remainder of Mark Lindsay’s unusual and paranoid statements before and after the actions that led to this trial. To be explicit, my conclusion here that Lindsay’s narrative is a concoction does not mean that I reject all evidence that Mark Lindsay has acted in an aberrant manner and made apparently delusional statements.

For example, my analysis above actually flows in part from the pre-offence evidence of John and Louise Lindsay. What I specifically reject is the narrative around Dana Turner. This will have implications for the weight I put on the expert testimony that follows.

F. Expert Evidence [120] Three mental health experts gave evidence concerning Mark Lindsay.

The basic principles that guide admission and weight ofexpert evidence are outlined by the Supreme Court of Canada in R v Mohan, (SCC), [1994] 2 SCR 9 at para 17, 114DLR (4th) 419: it must be relevant, necessary to assist the trier of fact, not otherwise excluded, and given by a properly qualified expert.Evidence that is only “helpful” or “might reasonably have assisted” the finder of fact should be excluded: R v D.D., 2000 SCC 43 at para47, [2000] 2 SCR 275. [121] Here, there is no real dispute the experts were necessary and relevant.

Mental health professionals are important to assist theCourt in understanding “diseases of the mind”, and the implications of certain diagnoses, testing, and other relevant psychiatric evidence. [122] Expert witnesses should be neutral observers and commentators. Justice Germain in 1159465 Alberta Ltd. v AdwoodManufacturing Ltd., 2010 ABQB 133 at para 2.13, 25 Alta LR (5th) 237, affirmed 2011 ABCA 259, 51 Alta LR (5th) 352 describedthem as “... less a ‘witness for a party’ than a ‘witness for the court’”. The UK judgment National Justice Compania Naviera S.A. vPrudential Assurance Co.

Ltd. (“The Ikarian Reefer”), [1993] 2 Lloyd’s LR 68 (QB) at p 81 enumerates the characteristics and dutiesof a proper court expert witness: 1. An expert witness should at all stages in the procedure, on the basis of the evidence as he understands it, provide independentassistance to the court and the parties by way of objective unbiased opinion in relation to matters within his expertise. ... An expertwitness should never assume the role of an advocate. 2.

The expert's evidence should normally be confined to technical matters on which the court will be assisted by receiving anexplanation, or evidence of common professional practice. The expert witness should not give evidence or opinions as to what the experthimself would have done in similar circumstances or otherwise seek to usurp the role of the judge. 3. He should cooperate with the expert of the other party or parties in attempting to narrow the technical issues in dispute at the earliestpossible stage of the procedure and to eliminate or place in context any peripheral issues. ... 4.

The expert evidence presented to the court should be, and be seen to be, the independent product of the expert uninfluenced as to formor content by the exigencies of the litigation. 5. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material factswhich could detract from his concluded opinion. 6. An expert witness should make it clear when a particular question or issue falls outside his expertise. 7. Where an expert is of the opinion that his conclusions are based on inadequate factual information he should say so explicitly. 8.

An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when he has received new information orhas considered the opinion of the other expert. He should do so at the earliest opportunity. [123] The experts each provided a measure of assistance to the Court in applying the Criminal Code, s 16 test for the not criminallyresponsible test.

Our Court of Appeal in R v Neve, 1999 ABCA 206 at para 189, 237 AR 201 sets out seven considerations of which I ammindful in considering the expert psychological evidence in this trial. [124] During this trial the three experts provided their professional opinions. At various times in the trial, discussions took placeregarding the proof of the facts upon which the experts based their opinions. As the trial progressed, counsel by agreement enterednumerous exhibits including medical reports, correctional records and various other documents, to establish some of the facts upon whichthe experts relied.

However, that is not the case for all of the facts which the experts relied upon in their reports. [125] In R v Abbey (SCC), [1982] 2 SCR 24, 138 DLR (3d) 202 [“Abbey”], Dickson J (as he then was) explained: ... “The evidence of a physician stating what a patient told him about his symptoms is not evidence as to the existence of the symptoms.To accept it as such would be to infringe the rule against hearsay.” It was appropriate for the doctors to state the basis for their opinionsand in the course of doing so, to refer to what they were told not only by Abbey but by others, but it was error for the judge to accept ashaving been proved the facts upon which the doctors had relied informing their opinions.

While it is not questioned that medical expertsare entitled to take into consideration all possible information in forming their opinions, this in no way removes from the party tenderingsuch evidence the obligation of establishing, through properly admissible evidence, the factual basis on which such opinions are based.Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. [126] This principle, that some of the foundation of the expert witnesses opinions was hearsay, was identified and commented uponby both counsel.

The caution in Abbey has a special significance when the Court responds to a not criminally responsible application,since the state of mind of the accused is a critical aspect of any analysis on that defence. In R v Warshing, 2002 BCCA 131 at paras 54-55, 164 BCAC 199, Hall JA for the court addresses the issue of whether an accused’s hearsay statement to a mental health professionalis treated in a different manner than suggested by Abbey: 54 It was suggested ... that to require the appellant to testify would somehow infringe his rights under the Charter of Rights andFreedoms. I do not accept that submission.

In some cases, such as R. v. Oommen, (1994) (SCC), 91 C.C.C. (3d) 8,(S.C.C.), a case referred to by the trial judge, it may be that there would be no requirement for an accused to testify on an NCRMD issuebecause there would be evidence from what was said and done by the accused person around the time of the events capable of affordinga factual foundation upon which experts could be entitled to arrive at opinions as to the mental status at the relevant time of the accusedperson. However, in other cases it might be necessary for an accused to take the stand to testify as to what he did or believed.

I note thefollowing provisions of s. 16(2) and 16(3) of the Criminal Code, R.S.C. 1985, c. C-45:

(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.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on theparty that raises the issue. 55 Cases will vary considerably as to the methodology by which the necessary underlying facts can be marshalled to underpin a defenceof NCRMD. In the present case, it seems to me that it would have been necessary that the appellant testify in order to establish a factualfoundation for what he asserted in his interviews with the psychiatrists concerning his activities and mental state in May of 1994.

Icannot appreciate how that would in any way infringe any of his Charter rights. [127] This was an appropriate reason for the trial judge to have placed reduced weight on expert evidence that was based onstatements by the accused to mental health professionals but not entered at trial. [128] Two recent trial decisions illustrate what I conclude is the correct approach to expert evidence supported by accused hearsaystatements.

In R v Godin, 2014 NBQB 60, 417 NBR (2d) 319 the accused stabbed his mother to death, and claimed to have killed Satan.At paras 51-54 Ferguson J reviews the instructions in Abbey and R v Lavallee, (SCC), [1990] 1 SCR 852, 108 NR 321concerning expert medical and psychiatric evidence, and concludes that a factual evidentiary foundation is required to support expertmental health evidence in a not criminally responsible defence application.

That foundation can be established by agreed statements,evidence admitted by agreement, or via circumstantial evidence relating to the accused: paras 55-58. [129] Dawson J in R v Lesann, 2014 SKQB 332 at paras 22-28, 455 Sask R 1 accepted that approach, and conducted the same kind ofanalysis in relation to a not criminally responsible defence. Here the evidence concerning the accused and his circumstances came beforethe court via different methods, including statements made by the accused to persons in authority, police notes, and statements to otherwitnesses near the time of the offence.

This was an adequate foundation for the mental health expert’s opinion, despite the fact theaccused did not testify. [130] In conclusion, the law on this point is clear. I can rely on expert evidence where the foundation for the expert’s opinion isbefore the Court. In the case of Mark Lindsay, who did not testify, what is critical is to determine how much of Lindsay’s hearsaystatements to an expert are reflected in the evidentiary record. If not, the reliability and weight of the expert’s opinion may besignificantly compromised. 1. Dr. Mark Nesca [131] Dr.

Mark Nesca, a forensic psychologist, interviewed and tested Mark Lindsay in September, 2014 and December, 2015. Hehad access to the disclosure in these proceedings. I qualified him as an expert psychologist to provide an opinion on the mental state ofMark Lindsay at the time of the offense. Dr. Nesca prepared a report dated January 24, 2016 which became Exhibit 6 in theseproceedings. He testified on behalf of the accused. a. Report of Dr. Mark Nesca [132] Dr. Nesca provided a primary diagnosis of schizophrenia with respect to Mark Lindsay.

He discounted the possibility that MarkLindsay’s mental health problems arose from substance abuse on the basis that his symptoms remained active despite lengthy periods ofabstinence or reduced intoxicant consumption. [133] Dr. Nesca opined “that the alleged offences occurred within the context of a psychotic envelope that left Mr. Lindsay fearingfor his life and feeling compelled to act in self-defence. As such it is my opinion the alleged offences are a direct result of a mentalillness that left Mr.

Lindsay unable to accurately appreciate reality.” This was a consequence of auditory hallucinations and paranoiddelusions. i. Factual Foundation of the Nesca Report [134] Dr. Nesca’s expert opinion is substantially weakened by his reliance on evidence not before the Court. Considering his reportagainst the evidence in the trial leaves me with a number of concerns as to the weight I should give his opinion. Starting at page 15 of hisreport, Dr. Nesca relies on important evidence regarding the mental state of Mark Lindsay at the time of the killing which was not inevidence at the trial. Specifically, Dr.

Nesca quoted the following: “She called me and said she wanted to see me. That’s when I heard onthe computer that she wanted to kill me. It was really intense that they channeled through the computer.” This statement, which it appearsDr. Nesca received directly from Mark Lindsay, never became evidence in the trial. Mark Lindsay did not testify to that end. If he had,the statement could have been tested by the Crown in cross-examination.

This statement is important as the ‘computer communication’was alleged to have occurred shortly after Dana Turner contacted him while Mark Lindsay was at his brother’s residence and before hereturned to see Ms. Turner. It does not appear in the Agreed Statement of Facts or the statement Mark Lindsay provided to CorporalMorton on March 16, 2012. [135] On page 16 of his report, Dr. Nesca relied on another statement by Lindsay concerning his mental state at the time of theoffence: “I couldn’t run. I couldn’t call the cops. I knew my last option was to kill her.” Again, this statement is not in evidence.

Similarlyon page 16, second paragraph, Dr. Nesca stated: “The violence proper in this case began when the victim started searching her purse. Mr.Lindsay interpreted the action as threatening, panicked, and stabbed the victim in the eye with a pencil.” The trial record has no evidenceof her searching her purse. [136] Dr. Nesca goes on to state that he also relied upon evidence from Mark Lindsay explaining why he could not go to police,because police are involved in the plot against him.

John Lindsay, the father of Mark Lindsay, testified that in previous years his son hadtold him the police were involved in the plot. However, that is not the evidence that Dr. Nesca relies on; rather, he is relying on evidence

from Mark Lindsay not in the trial. [ 137 ] Dr. Nesca relied upon Dr. Gendemann’s finding that Mark Lindsay has never been asymptomatic. No such evidence came from Dr. Gendemann in this trial. [ 138 ] Dr. Nesca also testified with respect to medical information from a child psychologist, Dr. Blackman, who had treated Mark Lindsay but did not testify. What Dr. Nesca took as important from Dr. Blackman was that Mark Lindsay had not been diagnosed by Dr. Blackman with conduct disorder. The defence in cross-examination put this vigorously to Dr.

Rodd regarding lack of such diagnosis, alleging such a diagnosis ought to have occurred before the diagnosis of personality disorder. However, there is no evidence in this trial that Dr. Blackman did not make the diagnosis of a conduct disorder. The defence bears the burden of providing such information if the defence expert wishes to rely upon it [ 139 ] Dr. Nesca also relied upon information from a preliminary inquiry provided by David Lindsay, brother of Mark Lindsay, and a statement by a Morgan Peers, an ex-girlfriend of Mark Linday.

Neither source provided evidence at trial nor was it otherwise entered. [ 140 ] Dr. Nesca placed a good deal of reliance on the evidence of Louise Lindsay and John Lindsay, stating he found them compelling. I too have accepted, with the noted exception, their evidence of their observations of their son. However, Dr. Nesca concluded that the Lindsays’ evidence indicated an ongoing mental illness. As previously observed, the Lindsays were not generally positioned to provide a useful evaluation of whether Mark Lindsay’s atypical behaviour was correlated with their son’s abuse of alcohol and drugs.

However, that is a connection that appears repeatedly in Mark Lindsay’s pre-offence hospital records. This subverts a major foundation of Dr. Nesca’s analysis and conclusion. He reconstructed Mark Lindsay’s state from a source of questionable relevance, while not accounting for medical records that were admitted into evidence which disclose a different potential relationship of cause and effect. ii. Psychometric Testing [ 141 ] Dr. Nesca carried out psychometric testing as part of his assessment of Mark Lindsay to diagnose his mental condition(s).

While I accept these are standardized tests, and their results were not challenged in that sense, the test results suggest to me that Dr. Nesca was overly reliant on these tools. [ 142 ] He administered the tests on two separate occasions: September of 2014 and then December of 2015. Each time Dr. Nesca administered the Personality Assessment Inventory (PAI) and the Structured Interview of Reported Symptoms – 2 (SIRS-2). [ 143 ] Regarding the results of the PAI, September 2014, Dr. Nesca noted a “severe distortion in the direction of amplified symptoms of mental illness.” Dr.

Nesca acknowledged this outcome could be consistent with malingering but he attributed it to a cry for help at page 16 of his report. He based this conclusion on advice from Mark Lindsay wherein he advised he “felt mistreated and disrespected” by Dr. Rodd and Dr. Singh du

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