R. v. J.D., 2024 BCPC 6

Citation: R. v. J.D. 2024 BCPC 6 Date: 20240105 File No: 111458 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. J.D. BAN ON PUBLICATION

SECTION 486.4(2) C.C.C. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. BENNETT Counsel for the Crown: T. Livingston Counsel for the Defendant: G. Verdurmen Place of Hearing: Kamloops , B.C.

Date of Hearing: January 10, 11, 12, 2023, August 17, 18, 2023 Date of Judgment: January 5, 2024 [ 1 ] J.D. applies to be found not criminally responsible by reason of mental disorder (NCRMD) in relation to the allegation of sexual assault of his former spouse, R.D., on June 8, 2021. The couple have since divorced, and I acknowledge that the complainant now uses her maiden surname, P. I will use her preferred surname in these reasons. [ 2 ] Defence does not challenge the complainant’s credibility, nor her evidence in respect of what she says took place. [ 3 ] What is in dispute instead, given Mr.

D.’s mental state at the time, is whether Mr. D. knew what he was doing was wrong. [ 4 ] If I find that Mr. D. did not know what he was doing was wrong, then I must acquit him based on his defence of mental disorder. That defence is set out in s.16 of the Criminal Code and reads 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

(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 the party that raises the issue [ 5 ] If I find that Mr. D.’s defence fails and that he did know what he was doing was wrong, then I must carry on with my analysis and can only convict Mr. D. if I am satisfied that the Crown has proven each element of the offence beyond a reasonable doubt. Relevant Background [ 6 ] Mr. D. is 35 years of age. He grew up and went to school in Kamloops, BC. During his latter school years, he was diagnosed with ADHD, but that diagnosis did not hinder him.

He graduated from high school, was well liked by his peers, and excelled as an athlete. Mr. D. met Ms. P. in high school and eventually the two of them married, and had two children together. [ 7 ] Mr. D.’s employment background is in security enforcement and corrections. He trained through the Justice Institute. In November 2016, he furthered his training to become a corrections officer, and secured employment at [redacted for publication]. [ 8 ] On November 29, 2020, while on duty at [redacted for publication], Mr.

D. had the unfortunate and tragic experience of being the first responder to an inmate who hung himself. Due to Covid protocols in place at the time, Mr. D. was unable to gain immediate access to the inmate’s cell in an effort to intervene. By the time he was granted entry to the cell, the inmate had met his fate, and Mr. D.’s efforts to resuscitate him failed. [ 9 ] Understandably, the events left Mr. D. traumatized. He took a leave of absence prior to going on short-term disability, and was still on disability at the time of these allegations. [ 10 ] By June 2021, Mr. D. was under psychiatric care.

He had been diagnosed with PTSD and depression, and his psychiatrist at the time had him on three different anti-depressants and a mood stabilizer. [ 11 ] Mr. D. did not take his medications as prescribed. Either he did not take them regularly, or he took more than the required doses. He also substituted with cannabis on a regular basis. The Allegations [ 12 ] The allegations themselves are very disturbing, and together with the evidence, portray a significant and invasive sexual assault by Mr. D. toward Ms. P. [ 13 ] As I noted at the outset, Mr. D. does not challenge Ms.

P.’s evidence as to what she says took place. Additionally, he claims to have zero recollection of much of the time leading up to the events, and of the events themselves. [ 14 ] Defence called on Mr. D.’s treating psychiatrist, Dr. Sorinmade, to provide his expert opinion on Mr. D.’s state of mind at the time, and to opine on how Mr. D. would have been affected by his mental health issues at the relevant time. [ 15 ] Dr. Sorinmade treated Mr. D. from the time he was admitted to RIH in early July 2021 until he was discharged. The expert based his opinion, in part, on Mr.

D.’s self-report about his mental state and use of prescription drugs at the relevant time, and in part based on his own review of the evidence from the other witnesses who testified. [ 16 ] Turning to the other evidence, and with particular reference to Ms. P.’s evidence, she could not say, with any certainty, how Mr. D. managed his medications on the days leading up to the incident. [ 17 ] What she did say is that Mr. D.’s behaviour was “off” in the time leading up to the incident. Ms. P. described Mr. D.’s behaviour as erratic and paranoid.

She gave an example of him putting sheets/blankets over the living room windows during daylight hours notwithstanding that the windows already had blinds. She described how he unnecessarily cut a giant hole in their bathroom wall to address moisture concerns. She testified that Mr. D. was yelling a lot, and she gave evidence about him trying to make a vehicle

purchase that did not align with the reality of their finances. [ 18 ] Ms. P. testified that by June 5, 2021 Mr. D.’s yelling became so bad that she texted his parents for support. [ 19 ] Mrs. L.D. testified that she received that call for help through text on June 6, 2021. She explained that on June 7, 2021 she and her spouse (Mr. D.’s father) drove from their home in Salmon Arm to attend the D. residence in Kamloops. [ 20 ] When they arrived, L.D. described her son as argumentative. She said his skin looked yellow and she observed his eyes bugging out and his veins around his forehead popping out.

She described him as “hyper”, and said he spoke to her and her husband in an aggressive manner that she had never before observed. [ 21 ] Mrs. D. also testified that she and her husband left to go back home in the late afternoon and only once they were satisfied that Mr. D. had calmed down. [ 22 ] In terms of the sexual incident that followed that evening, Ms. P. acknowledged that Mr. D. was aggressively acting out of character. She described his pupils as big, but said he always smoked marijuana so she assumed it was from that.

She described him as sweating excessively, and gave detailed evidence about how he soaked the sheets in sweat (something that she had not observed him to do before). [ 23 ] Turning to Dr. Sorinmade’s evidence, he confirmed in his direct examination that he had read the transcripts of evidence of those witnesses who had testified before him at trial. He then gave the following expert evidence: a. He said he met Mr. D. when Mr. D. was initially involuntarily admitted to RIH on July 6, 2021; b. Almost immediately after the initial assessment, Dr. Sorinmade diagnosed Mr. D. as having bipolar 1.

He also made a secondary diagnosis of PTSD, followed by a third diagnosis of cannabis use disorder; c. Dr. Sorinmade testified that, based on how Mr. D. was described by the other witnesses to have presented at the time, he would have been experiencing an undiagnosed episode of mania on June 7, 2021; d. He opined that any previously prescribed anti-depressants taken by Mr. D. around the time of the incident would have continued to worsen his mania; e. Dr. Sorinmade did not see anything psychotic about Mr. D.’s behaviour, and he made no findings of psychosis; f. Dr. Sorinmade testified that Mr.

D. reported to him that he had no recollection of what happened. Dr. Sorinmade said he did not push from that. In regards to Mr. D.’s inability to recall the events, Dr. Sorinmade said, “…what he reported was a complete total amnesia/complete loss of memory and I have no further comment as to why he experienced that.”; g. Dr. Sorinmade explained that Mr. D. disclosed to him that he did take a bunch of medications before the incident. Dr. Sorinmade did not know how much, and said that Mr. D. just said ‘a bunch’, and that he was using cannabis on top of that ; h. Dr. Sorinmade testified that if Mr.

D. had, in fact, smoked weed and taken a bunch of medications as he disclosed he did, Dr. Sorinmade would consider that person not to be in the right frame of mind…particularly if that person was continuing to use anti- depressants which would only make things, namely the mania, worse; i. Dr. Sorinmade’s opinion, during direct examination, was that at the time of the incident Mr. D. was suffering from an undiagnosed manic episode based on his presentation, agitation, indiscretion, and sexual inhibition. Dr. Sorinmade could not specify how much any overdose of medication would have set Mr.

D. into overdrive; and j. During cross-examination, Dr. Sorinmade acknowledged that other possibilities could exist. He acknowledged that Mr. D. could have, in fact, been himself that day, and that despite his mental health issues and his difficulties controlling his impulses on June 7, 2021, Mr. D. could very possibly have known that what he was doing was wrong given his ability to react to the stimuli around him. Mental Disorder Analysis [ 24 ] Mr.

D. bears both an evidentiary and persuasive burden to establish, on a balance of probabilities, the defence of NCRMD . [ 25 ] The two-stage analysis that I must apply in this case is set out in R v. Bouchard-Lebrun , 2011 SCC 58 , at paragraph 56 . Applied to this case that test is: a. Was Mr. D. suffering from a mental disorder in the legal sense at the time of the incident, and, if so; b. Was Mr. D. capable of knowing that his acts were wrong? Step 1 - Was Mr. D.

Suffering from a Mental Disorder at the time of the Incident? [ 26 ] “Mental disorder” is defined generally at s. 2 of the Criminal Code as a “disease of the mind”, but the concept continues to evolve through case law. Medical expertise plays an essential

part in the legal characterization, but the ultimate question of whether an accused suffers from a mental disorder is a question of law, which is determined by the trier of fact. Medical and/or expert evidence is not dispositive, and is only one factor for the trier of fact to consider. [ 27 ] It is clear from Dr. Sorinmade’s evidence, and undisputed by both Crown and defence, that at the time of the incident Mr. D. would have been suffering from a mental disorder, primarily bipolar 1, although he had not yet been formally diagnosed.

Step 2 - Did Mr. D. Appreciate That His Acts Were Wrong? [28] This is the real issue in this case, and the second part of the test set out in R v. Bouchard-Lebrun (supra). That is, did Mr. D., inlight of his mental disorder, appreciate that his acts were wrong? [29] Crown relies on R v. Dobson, 2018 [OJ] No. 3450 as authority for a recent description of the term “wrong”. At paragraph 20, theCourt refers to R v. Chaulk, (SCC), [1990] 3 SCR 1303 as the seminal case on the meaning of “wrong”.

In Chaulk,Lamer CJC for the majority said, at p.1357: The accused will not benefit from substituting his own moral code for that of society. Instead, he will be protected by s. 16(2) if he isincapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society. [30] R v. Oommen, (SCC), [1994] SCJ No 60, remains the leading authority on the point in time when the accused’sability to understand must be analysed. The legally relevant time is the time when the act was committed. [31] Counsel for Mr.

D. argues that he did not and could not appreciate that his acts were wrong at the relevant time given Dr.Sorinmade’s opinion regarding Mr. D.’s manic episode at that time. Defence specifically relies on Dr. Sorinmade’s finding that Mr. D.presented as “floridly manic” with persistent symptoms that would have been exacerbated by the anti-depressants that Mr. D. claimed tobe taking, whether as prescribed or otherwise, at the time. [32] Defence relies on Dr.

Sorinmade’s evidence that the effects of the various prescribed anti-depressants, even in a half-life state,would have had a contradictory effect on bipolar 1 and elevated Mr. D.’s mania on June 7, 2021. [33] Finally, defence relies on Mr. Sorinmade’s opinion that most people in a manic state are unable to appreciate the extent of theirbehaviour. Dr. Sorinmade extended that opinion to Mr. D. by concluding that Mr. D. would have been unable to control his impulse onJune 7 and 8, 2021 and unfortunately took that out on Ms. P. [34] Crown disagrees with Dr. Sorinmade’s opinion, and argues that: a. Dr.

Sorinmade’s opinion is based in large part on Mr. D.’s self report that he did take a handful of medications before the incident; b. The basis of Dr. Sorinmade’s opinion is not grounded in the evidence as the evidence does not prove that Mr. D. did, in fact, take ahandful of medication in the time leading up to the incident; and c. Even if the Court accepts Dr. Sorinmade’s opinion that Mr. D. was suffering from a manic episode at the relevant time (regardless ofwhether or not he took a handful of medications), the evidence establishes that Mr.

D. did still understand the nature and quality of hisacts at the legally relevant time. [35] In addressing the first of these three points, Dr. Sorinmade acknowledged that he based his opinion on Mr. D.’s unequivocal self-report that he was not taking his medications regularly on June 7, 2021, on Mr. D.’s self-report that he took a bunch of medicationsbefore the incident, and on Mr. D.’s self-report that he was using cannabis on top of that. [36] Dr. Sorinmade was clear that he did not know how much medication Mr. D. consumed before the incident, and reiterated severaltimes throughout his evidence that Mr.

D. just said, “A bunch”. [37] Dr. Sorinmade explained that he did not push from that, and that he took the information, together with Mr. D.’s self-report thathe does not remember the events, at face value and without his own assessment. Dr. Sorinmade went on to explain that he does notjudge his patients, but rather records what they say and then uses his skills to do an assessment with the information he receives. [38] I turn now to Crown’s second point that Dr. Sorinmade’s opinion is not grounded in the evidence. [39] Without a doubt, Mr.

D. gave inconsistent evidence as to whether or not he took a bunch of medications on June 7, 2021. Forexample: a. When first asked in direct if he ever took more medications than prescribed at once, Mr. D. unequivocally answered, “no”; b. Mr. D.’s counsel then asked, “Did you ever take a handful of anything?” Mr. D. then answered “yes”; c. Defence counsel then asked, “okay…well the handful is more than you are supposed to take isn’t it?” Mr. D. answered, “”yes”, andwent on to explain that he did take a handful of medications in the evening of June 7, 2021.

He then added specifics when he said hethinks he took a handful of Quetiapine in particular to turn off the images he was seeing of a hanging man; d. Defence then asked Mr. D. to clarify whether he took any medications earlier in the day after his parents left. He answered “No”, butthen changed that answer later on when he conceded that he could not recall if he did or if he did not; and e. Crown challenged Mr. D. on these inconsistencies, and in the end, Mr. D. conceded that he could not remember taking a handful ofmedications on June 7, 2021.

As he gave his evidence in cross on this issue, it was apparent to me that Mr. D. became flustered. Thiswas obvious to me through his mannerism, body language, and through his answers. [40] I turn now to Crown’s third point. Crown argues that regardless of whether Mr. D. was experiencing an episode of mania at thetime or not, he still understood the nature and quality of his acts at the time. In this regard, Crown relied on Ms. P.’s undisputed evidenceabout how Mr.

D. acted and responded between the hours of approximately 9:00 p.m. on June 7, 2021 and 3:00 a.m. on June 8, 2021. [41] Specifically, Crown relies on the following evidence of Ms. P.:

a. She described Mr. D. as coming into their bedroom and taking their four year old daughter from their bed and putting her in her own bed; b. She testified that he then threatened to send sex tapes to her boss and family when she refused his demands to remove her clothes, and later repeated the same threats when she refused to perform oral sex on him; c. Mr. D. told Ms. P. that she was being too loud in their bedroom and forced her down the stairs to his office; d. When she got to his office downstairs, she noticed a video camera plugged into a tripod; e. She said that Mr.

D. began yelling at her for being too loud in his office and then moved her again, this next time into the basement TV room. She testified that her cries continued, and said at one point Mr. D. put his hand inside of her mouth to muffle her sounds. She bit him; f. She testified that he told her to stop crying because she was ruining it for him; g. She said he started mocking her; h. She testified that while in the basement TV room, he continued to tell her she was being too loud and expressed particular concern that the neighbours would hear and call the police; i.

She explained that eventually he let her go because of his noise concerns. At that point she said she went upstairs, but he followed; and j. Ms. P. testified that once back upstairs Mr. D. confronted her back in their bedroom, and that he came in after her with a dildo. She said she continued to cry, and he continued to get mad at her. [ 42 ] As I noted earlier, defence does not challenge Ms. P.’s version of events, or her credibility. Mr. D.’s position is that he does not remember the events . [ 43 ] Notwithstanding, I find that Ms. P. presented as an honest and reliable witness.

Her evidence flowed, it was logical, and it was consistent both internally and externally. [ 44 ] Given the detail of her evidence, Crown did challenge Dr. Sorinmade on his opinion regarding Mr. D.’s ability to appreciate fully what was going on at the relevant time. Specifically, Crown asked Dr. Sorinmade to explain how Mr. D. could lack an appreciation of what was going on at the time given Ms. P.’s undisputed version of events. Dr. Sorinmade conceded that the evidence and examples provided by Ms. P. are, in fact, demonstrative of goal-oriented behaviour and demonstrative of Mr.

D. having situational awareness. [ 45 ] Dr. Sorinmade further agreed in cross that people who experience manic episodes do have the ability to retain an awareness that acts are wrong. More specifically, his evidence was that it is entirely possible that Mr. D. did know what he was doing on June 7 and 8, 2021 despite his unwell condition and manic state. [ 46 ] When I consider all of the evidence, I arrive at the following conclusions: a. The fact that Mr.

D. moved his young daughter to her own room, and the fact that he had a plugged in video camera set up on a tripod suggests anticipation and planning on his part; b. His threats to distribute intimate images, and his threats that Ms. P. would not see her children again if she did not comply, suggest goal oriented behaviour; c. His attempts to muffle Ms. P.’s cries, his efforts to move her from their bedroom to the office, then from his office into the basement TV room due to his ongoing concerns about noise levels suggest to me that he had an understanding of consequences and the need to take corrective action.

His particular concern that neighbours would hear Ms. P.’s cries and call the police are consistent with him knowing that his actions were wrong; d. Mr. D. also connected Ms. P.’s cries with his inability to perform sexually at the time, and further connected her cries with his ruined sexual experience; e. Mr. D. mocked Ms. P.’s cries, and the sarcastic remarks he made about her reaction including his comments that she did not like what he was doing suggest a keen level of awareness on his part; f.

The evidence suggests that same level of awareness continued for at least three hours during which he made over five active attempts to engage in sexual penetration. Some of the attempts lasted in excess of a half hour; g. Ms. P. testified that she believes Mr. D. heard her attempts to stop, and disagrees that he was oblivious to them. Rather she says he disregarded her comments, and did not seem to care what she was saying; and h. Ms. P. described nothing different about Mr. D.’s demeanor that night other than he appeared to be agitated and fixated.

She described nothing out of the ordinary in terms of his physical movement and said he spoke normally, and testified that he presented as such until the next morning. [ 47 ] While the evidence satisfies me that Mr. D. did suffer from a mental disorder, and while I accept that he may well have been suffering from a manic episode at the time of the incident, for the reasons I explained I am not satisfied on a balance of probabilities that Mr. D. did not know what he was doing at the time was both morally and legally wrong.

[ 48 ] Said another way, I am not satisfied on a balance of probabilities that Mr. D.’s mental disorder removed his ability or capacity to appreciate both the nature and quality of his actions, or of knowing that his actions were wrong. As such, his s. 16 defence must fail. Actus Reus and Mens Rea [ 49 ] The onus now shifts back to the Crown to prove each element of the offence of sexual assault beyond a reasonable doubt. [ 50 ] With regard to the actus reus , defence concedes that Mr. D. without a doubt did assault Ms. P. in a sexual nature. I am equally satisfied beyond a reasonable doubt that Ms.

P. did not consent, and that she only participated against her will due to Mr. D.’s threats to share intimate images of her. [ 51 ] Turning to the mens rea , I am mindful that Mr. D.’s mental disorder and mental state at the time may have had an impact on whether he held the requisite intent, and I have considered the whole of the evidence in this regard. [ 52 ] I have also considered the credibility and reliability of Mr. D.’s evidence. [ 53 ] In addition to inconsistencies about his medication use, Mr. D. gave inconsistent evidence surrounding his cannabis use.

For example, he was asked if, prior to June 7, 2021, he was in the habit of using cannabis from time to time. His answer was, “From time to time, yes. Yes I was.” He was then asked if he used cannabis on June 7, 2021, and he answered, “ I can’t recall”. [ 54 ] Later in direct he provided a different answer when his counsel asked if he used alcohol or any other substances that evening. Mr. D. confidently responded, “no”. [ 55 ] Both of these answers are inconsistent with what Mr. D. later said in cross, and with what he told Dr. Sorinmade. [ 56 ] In cross, Mr.

D. acknowledged using cannabis more than “from time to time”. He admitted to using regularly, daily, and even more than once a day. He further acknowledged that sometimes he would not take his medications at all and would smoke marijuana instead. [ 57 ] In addition, Mr. D. told Dr. Sorinmade that he did, in fact, use weed the night of the incident. [ 58 ] In terms of other reliability concerns, Mr. D. testified that he was diagnosed with ADHD in elementary school and prescribed Ritalin, but his evidence conflicted with his mother’s evidence that Mr.

D. was only diagnosed as borderline ADHD in elementary school, and that he never took Ritalin as a child. [ 59 ] Mr. D.’s evidence was unreliable as he testified about trying to assist with the Juniper fires in 2021. He recalled those events as occurring on the same day that he was admitted to hospital. However, Mr. D. was admitted to RIH on July 6, 2021, and the Juniper fires broke out on Canada Day 2021. That is a five day difference. [ 60 ] Lastly and perhaps most significantly in my view, is Mr.

D.’s claim that he recollects nothing from the time when his parents left the house on June 7, 2021 until the next morning. He testified that his memory is blank after his parents left the house, and said that he could not recall a thing after that. His evidence was that his next memory was on June 8, 2021 when he woke up to an empty home. [ 61 ] That evidence, however, is not consistent with various other parts of his evidence in which he explained his use of medication and/or cannabis within that same time frame.

For example, his evidence that his next memory is on June 8, 2021 is in conflict with what he told Dr. Sorinmade about taking a bunch of drugs and smoking weed before the incident. [ 62 ] His evidence of having no memory also conflicts with another comment that he made in direct. Specifically, at one point in his direct evidence he testified that he took a handful of drugs, which he believed to be Quetiapine, on the evening of June 7, 2021. [ 63 ] Mr. D.’s claim to have no memory of the events until he woke up to an empty house also conflicts with a conversation that Ms. P. described having with Mr.

D. the morning after the incident. [ 64 ] Specifically, Ms. P. testified that on the morning of June 8, 2021 Mr. D. was still sleeping when her alarm went off. She described getting up to get the children ready for day-care and said that Mr. D. ended up following her into the kitchen. She described him trying to hug her.

She testified that he repeated his earlier comments to her that everything is going to be better now if she just listens to him and does what he says. [ 65 ] She said that during their interaction he explained that he does not know why he acts this way, and told her that now they will be a happy family. [ 66 ] Then she said he talked about getting a hammock so that they could have “sex again” that night. She told him to go away, and said that he took a sleeping pill and went back to bed. [ 67 ] Neither counsel made reference to this point, yet I find it to be significant because (1) it is unchallenged

(2) Mr. D. stated he wanted to have “sex again”, and (3) the reference to “again” completely contradicts Mr. D.’s assertion that he has no recollection of the events. [ 68 ] To the contrary, the statement that Mr. D. made to Ms. P. on the morning of June 8, 2021 confirms that he was well aware of what happened in the hours before. So aware, in fact, that he stated he wanted to do it again that night. [ 69 ] Furthermore, the evidence flows from that conclusion. Crown alleges and I agree that it was only after Ms.

P. left the home on the morning of June 8, 2021 to take the children to day-care that guilt set in for Mr. D. It was only at that point, by Mr. D.’s own admission, when he began to experience suicidal thoughts for the very first time.

[ 70 ] Crown’s theory, which Mr. D. denied, is that Mr. D.’s claim of not having a memory is tied to Mr. D. not wanting to face these charges. In consideration of all of the evidence, and given the significant credibility issues with Mr. D.’s evidence, I agree with Crown. [ 71 ] Where credibility is an issue, as it is here, I am guided by the law as set out in R v. W(D) 1 SCR 742 . [ 72 ] I sympathize with Mr. D. for the trauma he experienced as a result of his work in corrections, and for mental health complications that he has suffered from as a result.

However, I do not believe his testimony that he does not recall the events because of his mental disorder or because of his manic state at the time, nor am I left in reasonable doubt as to his guilt on the basis of the evidence that I do accept. [ 73 ] The burden of proof beyond a reasonable doubt is an extremely high burden that the Crown has met in this case in respect of all of the essential elements of this offence. In regards to the mens rea in particular, I am satisfied that Mr. D. had the requisite intent when he sexually assaulted Ms.

P. and I am convinced beyond a reasonable doubt of his guilt. [ 74 ] Mr. D., I find you guilty as charged. _____________________________ The Honourable Judge L. Bennett Provincial Court of British Columbia