R. v. Lindsay, 2013 BCSC 530

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lindsay, 2013 BCSC 530 Date: 20130315 Docket: 93060-2; 93227-2 Registry: Kamloops Regina v. Mark Damien Lindsay Restriction on Publication: Pursuant to s. 486.5(1) & s. 486.5(9) C.C.C. Before: The Honourable Mr. Justice Dley Oral Reasons for Judgment Counsel for the Crown: W. Burrows Counsel for the Accused: D. Campbell Place and Date of Trial/Hearing: Kamloops, B.C. March 8, 2013 Place and Date of Judgment: Kamloops, B.C. March 15, 2013 Introduction [ 1 ] THE COURT: Mr. Lindsay is before the court under two indictments.

He has been found to have committed the offences as charged. [ 2 ] The question is whether Mr. Lindsay is guilty of the offences or if he is exempt from criminal responsibility on account of a mental disorder. [ 3 ] I have provided one set of reasons, but they are to apply separately to the respective indictments. Background Facts [ 4 ] On August 16, 2012, I concluded that Mr. Lindsay had committed robbery, aggravated assault, and possessing a weapon for a dangerous purpose. The facts are detailed in that decision and I will briefly summarize my findings here. [ 5 ] Mr.

Lindsay was under investigation for the murder of his girlfriend. An undercover officer had taken Mr. Lindsay into his confidence as part of the investigation strategy. While en route from Edmonton to Kamloops on September 21, 2011, Mr. Lindsay attacked the undercover officer. The officer escaped the attack, but Mr. Lindsay drove off in the officer's vehicle. [ 6 ] Mr. Lindsay testified that he intended to kill the undercover officer because of his belief that the officer was part of a group of serial killers that had been tracking him. [ 7 ] Mr. Lindsay was arrested a short time after the attack.

He was housed in a cell at the Kamloops Regional Correctional Centre. [ 8 ] I concluded on August 22, 2012, that Mr. Lindsay had committed an aggravated assault. The details are set out in that decision, and I will briefly summarize my findings here. [ 9 ] On October 20, 2011, Mr. Lindsay attacked his cellmate because he believed that his cellmate was going to kill him while they were playing Scrabble. Mr. Lindsay stabbed his cellmate in the eye with a pencil, believing that he had to kill in order to postpone his own death. [ 10 ] On each of the respective indictments, I ordered, pursuant to ss. 672.11 (

b) and 672.12(1) and (3) of the Criminal Code (the “ Code ”), that Mr. Lindsay be assessed so that evidence would be available in order to determine whether he was suffering from a mental disorder exempting him from criminal responsibility. [ 11 ] Mr. Lindsay was admitted to the Forensic Psychiatric Hospital in Port Coquitlam on August 24, 2012, and underwent an

assessment over the next two months. [12] Dr. Hediger, a psychiatrist, provided the following opinion: 1. Mr. Lindsay suffered from paranoid schizophrenia; 2. Mr. Lindsay's mental illness was active at the time he attacked the undercover operator and when he tried to kill his cellmate; 3. Mr. Lindsay's actions on both occasions were motivated by his delusions and hallucinations; 4. Mr. Lindsay did appreciate the nature and quality of his actions on both occasions; 5. Mr. Lindsay was not rendered incapable, by virtue of a mental disorder, of knowing the wrongfulness of his actions on bothoccasions; but 6. Mr.

Lindsay was probably rendered incapable, by virtue of a mental disorder, of appreciating the moral wrongfulness of his actionson both occasions. [13] The defence of mental disorder is set out in s. 16 of the Code: Defence of mental disorder 16.

(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder thatrendered 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 theparty that raises the issue. [14] The Crown does not accept Dr. Hediger's opinion regarding moral wrongfulness because Mr. Lindsay acknowledged that theaverage person would not approve of his conduct. [15] Dr. Hediger was asked if others in the community who did not accept Mr. Lindsay's thought process would think that hisactions were morally wrong. Dr. Hediger testified that Mr.

Lindsay felt that if he had discussed his thought process with others in thecommunity at the time of the attacks, and if the others had accepted his thought process, they would accept that he had acted inself-defence and was, therefore. morally justified in his actions. [16] Dr. Hediger agreed that if Mr. Lindsay explained his thought process, others in the community would think he was crazy. Thedoctor was asked if others would think that Mr. Lindsay was morally wrong because they thought he was crazy. Dr. Hediger agreed thatthose who were not aware of what was going on in Mr.

Lindsay's mind, would think he was morally wrong. Dr. Hediger concluded thatunless the others understood Mr. Lindsay's fears, they would think that his actions were morally wrong. [17] It is based on those aspects of moral wrongfulness that the Crown argues against Mr. Lindsay's assertion that he should beexempt from criminal responsibility. The Crown relies on R. v. J.M.W., [1998] B.C.J. No. 457 in support of its argument. [18] In J.M.W. the accused youths had been diagnosed with schizophrenia.

They had hijacked a school bus full of children with aplan that the students would be used to force the government into making various concessions to them. One of their plans included takingover a portion of Baffin Island as their own state where they would accumulate nuclear weapons to be used for threatening the rest of theworld into changing the existing social order. [19] At trial, the accused agreed that they knew their conduct was legally wrong and that society would regard their actions as beingmorally wrong.

The trial judge concluded that if an accused, in spite of a delusion, was capable of knowing that his actions would havebeen morally condemned by reasonable members of society, then he could not be rendered incapable of knowing that his act was morallywrong in the circumstances: J.M.W. at para. 13. [20] The accused in J.M.W. argued that even though they knew their actions were legally wrong and would be regarded as morallywrong, their delusions had made them believe that it was right and necessary to conduct themselves in the manner they did. [21] In a majority decision, Chief Justice McEachern rejected the defence argument and referred to R. v.

Chaulk, (SCC), [1990] 3 S.C.R. 1303, R. v. Ratti, (SCC), [1991] 1 S.C.R. 68, and R. v. Oommen, (SCC),[1994] 2 S.C.R. 507. [22] The Chief Justice reviewed the legal principles emanating from those cases and summarized the following at paras. 19-21: 1. The Crown must establish that the accused knows that his actions are morally wrong; 2. The moral wrong is not to be judged by the personal standards of the accused, but by his awareness that society regards his actions asbeing wrong; 3.

An accused is exempt from criminal responsibility if he is incapable of understanding that his actions are wrong according to theordinary moral standards of reasonable members of society; and 4. An accused cannot substitute his own moral code for that of society.

[ 23 ] The Chief Justice adopted the following rule in Ratti at para. 22 : [T]he trier of fact must be directed to consider whether the appellant was rendered incapable by reason of disease of the mind or "natural imbecility", to know that his act was morally wrong in the circumstances. It is not sufficient to decide that the appellant's act was a result of his delusion.

Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society. [ 24 ] The Chief Justice referred to Oommen for the statement at para. 32 that: ... a person who understands society's views as to what is right and wrong in particular circumstances but either does not care or because of a delusion chooses to act nevertheless in contravention of society's view, is not to be excused from criminal responsibility. [ 25 ] The Chief Justice further approved of the notion that a person who was aware of society's values and had the capacity to make a rational choice between right and wrong, but judged society's values to be wrong or inapplicable to himself, could not be exempt from criminal responsibility (para. 32). [ 26 ] In dismissing the appeal, the majority judgment concluded that the accused understood society's values, but nonetheless decided to carry out their own plan to hijack the school bus, which they knew was offensive to society's values.

The majority was not convinced that: ... the accused were so driven by their delusions that they did not have the capacity rationally to choose which course to follow. Rather the evidence supports the view that these young men believed that society's rules did not or should not apply to them. The fact that they chose to proceed with their plan does not establish that they did not have the capacity rationally to assess their acts. [para. 36] [ 27 ] In her dissenting judgment, Madam Justice Huddart also referred to Oommen and cited the following passages at para. 40: In other words, Mr.

Oommen possessed the general capacity to distinguish right from wrong. However, on the night of the killing, his delusions deprived him of the capacity to know that killing Ms. Beaton was wrong. On the contrary, those delusions led him to believe that killing was necessary and justified. ... The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.

The inability to make a rational choice may result from a variety of mental disfunctions; as the following passages indicate these include at a minimum the states to which the psychiatrists testified in this case . . . McLachlin J. explained further: The trial judge found that while the accused was generally capable of knowing that the act of killing was wrong, he could not apply that capacity for distinguishing right from wrong at the time of the killing because of his mental disorder. He further found that because of that disorder, Mr. Oommen was deluded into believing that he had no choice but to kill.

These findings are consistent with the conclusion that Mr. Oommen's mental disorder deprived him of the capacity to know his act was wrong by the standards of the ordinary person. As the cases make clear s. 16(1) of the Criminal Code embraces not only the intellectual ability to know right from wrong, but the capacity to apply that knowledge to the situation at hand. [ 28 ] The question that emerges from the review of the law in J.M.W. is if, in the particular circumstances of Mr.

Lindsay, he was able to make a rational choice as to whether his actions were wrong by the standards of the ordinary person. [ 29 ] Dr. Hediger's evidence was not challenged to the extent that Mr. Lindsay believed that the ordinary person who understood what was going through his mind at the time of the attacks would have reacted as he did. The ordinary person who believed he was about to be killed would have acted in self-defence. The ordinary person who understood Mr.

Lindsay's delusion would not regard self-defence to imminent death as morally wrong. [ 30 ] In J.M.W. it is apparent that the majority did not accept that the accused youths were so driven by their delusions that they lacked the capacity to rationally choose their course of conduct. The court commented that the youths did not accept that society's rules applied to them. [ 31 ] The facts in this case are different. Dr. Hediger has opined that Mr. Lindsay did not question society's rules or quarrel with their content. Instead, Mr.

Lindsay says that he conformed to society's views and acted in accordance with what the ordinary person would do to preserve his life. [ 32 ] Mr. Lindsay was not capable of rationally evaluating his attacks because of the paranoid schizophrenia that caused him to regard the undercover officer and his cellmate as part of the group of serial killers bent on killing him. In his deluded mind, Mr. Lindsay was justified in his attacks. [ 33 ] Mr. Lindsay falls within the descriptions set out by Madam Justice McLachlin in Oommen .

My conclusions are best captured by adopting the words of Madam Justice McLachlin and substituting Mr. Lindsay's name in the place of Mr. Oommen. [ 34 ] I conclude that Mr. Lindsay was suffering from a mental disorder so ... that his delusions which make the accused perceive

an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing, and because of that disorder, Mr. Lindsay was deluded into believing that he had no choice but to kill. These findings are consistent with the conclusion that Mr. Lindsay's mental disorder deprived him of the capacity to know his act was wrong by the standards of the ordinary person.

[ 35 ] I, therefore, conclude that the opinion of Dr. Hediger is persuasive with respect to Mr. Lindsay's moral wrongfulness. [ 36 ] I am also satisfied that substance abuse did not interfere with Dr. Hediger's assessment because of the length of time Mr. Lindsay was under observation while in seclusion at the forensic hospital. [ 37 ] I am also satisfied that Mr. Lindsay was not faking his symptoms based upon Dr. Hediger's review of similar findings during Mr.

Lindsay's three admissions in Alberta, and the doctor's intensive observation over the two-month assessment. [ 38 ] I, therefore, conclude that upon review of all the evidence, Mr. Lindsay is exempt from criminal responsibility with respect to both indictments by reason of not being criminally responsible by reason of mental disorder under s. 16(1) of the Code . [ 39 ] I must also say, however, that having reviewed all of the evidence, I consider Mr. Lindsay to be an exceptionally dangerous person. “S.D. Dley J.” DLEY J.