R. v. Clark, 2017 BCSC 1057

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Clark, 2017 BCSC 1057 Date: 20170613 Docket: 81239-3 Registry: Nanaimo Regina v. Steven Robert Clark Before: The Honourable Mr. Justice Thompson Oral Reasons for Judgment Counsel for the Crown: F. Dubenski Counsel for the Accused: S. Taylor Place and Dates of Trial: Nanaimo, B.C. May 31,2017 June 13, 2017 Place and Date of Judgment: Nanaimo, B.C.

June 13, 2017 [ 1 ] THE COURT: The accused is charged that, Count 1, on 8 April 2016, at or near Qualicum Beach, he did commit aggravated assault of Nicholas Colatosti by stabbing him with a knife and endangering his life, contrary to s. 268(2) of the Criminal Code , R.S.C. 1985, c. C-46, and Count 2, that on that same date at that same place, he committed assault of Jamey Watson using a knife, contrary to s. 267 (

a) of the Criminal Code . [ 2 ] The Crown's case was comprised of photographs and agreed facts. The accused testified, and the Crown called a psychiatrist in rebuttal. [ 3 ] The accused admits the actus reus of each of these two offences. There is no question that the accused, on 8 April 2016, in Qualicum Beach, stabbed both of the complainants. The issue is the accused's state of mind at the time. In particular, the question is whether it has been shown on a balance of probabilities that the accused is not criminally responsible by reason of mental disorder. [ 4 ]

Section 16 of the Criminal Code provides: 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 that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. Presumption

(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. Burden of proof

(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 ]

Section 2 of the Criminal Code defines “mental disorder” as a disease of the mind. Thus while the nomenclature has changed by amendments to the Criminal Code so that we now speak of mental disorder rather than insanity, the principles established by cases

decided before those amendments continue to be good law. I have been referred to the leading authorities in relation to s. 16 and they establish the following propositions: • Section 16(1), including the imported definition from s. 2, establishes a legal, and not a medical test.

However, expert evidence is often of critical assistance in making the determination. • Any malfunctioning of the mind or mental disturbance having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not) may be a disease of the mind, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept (for example, ordinary stresses and disappointments of life, hysteria, concussion, violence, or drugs). • The word "appreciates" in s. 16(1) imports a requirement beyond mere knowledge of the physical quality of the act and requires a capacity to apprehend the nature of the act and its consequences. • The word "wrong" in s. 16(1) means morally wrong and the court must determine if the accused was rendered incapable of knowing that the act was something that he ought not to have done.

The accused must not only possess the intellectual ability to know right from wrong, but must be able to apply that knowledge in a rational way to the criminal act.

The crux of the inquiry is whether the accused lacked the capacity to rationally decide whether the act was right or wrong, and hence make a rational choice of whether to do it or not. • A person who suffers from a delusion to the point where it renders them incapable of appreciating the nature and quality of the act, or of knowing that it was wrong, will be characterized as suffering from a “mental disorder.” • Even if it is not prone to recur, a mental disorder may still constitute a disease of the mind.

A “disease of the mind” includes any medically recognized mental disorder or mental illness that could render a person incapable of appreciating the nature and quality of the act or of knowing that it was wrong. • An accused would be not criminally responsible by reason of mental disorder where, by reason of delusions, he perceives

an act which is wrong to be right or justifiable and his disordered condition deprives him of the ability to rationally evaluate what he is doing. • If an accused is in a state of automatism to which a disease of the mind is a contributing factor, then the defence of NCRMD is established — not a non-mental disorder automatism, the latter condition negates the actus reus . [ 6 ] Most of the facts in this case are not disputed. The accused is 34 years old. He has no history of being treated for mental problems up until March 2016.

When he was a teenager and until well into his 20s he suffered from addictions to various drugs including crack cocaine and crystal meth. Since that time, his drug use has been, for the most part, restricted to the use of marihuana. [ 7 ] For a period of time leading up to a hospital admission on 15 March 2016, he was living with his sister in Qualicum Beach. He was smoking seven or eight marihuana joints per day. In the days leading up to 15 March 2016, he had wandered away from home. He was hearing voices, including voices urging him to kill his family, and he walked from Qualicum Beach to the Comox Valley.

He was treated upon admission to Nanaimo Regional General Hospital by personnel of the Psychiatric Emergency Services Branch. Antipsychotic medication was prescribed, apparently with success, and the accused was released from hospital on 5 April 2016 — three days before the stabbings. [ 8 ] The accused was discharged with a two-day supply of medication. He was supposed to obtain more, but did not.

I conclude from his evidence that at the time of his hospital discharge the accused believed that the voices he had heard and the journey he had undertaken to the Comox Valley were part of a spiritual awakening and not signs of mental illness. [ 9 ] Unfortunately, about the time he stopped taking medication, the accused was hearing voices again. He was described by others as acting strangely. Just before he stabbed his friend and his brother-in-law, the accused testified that the voices told him he would have to kill or everyone would die. Shortly thereafter, he found himself draped over a wounded body.

In the aftermath, the accused knew that he had been the one that committed the acts of violence and he waited for the police to arrive. The police described his behaviour at the scene. From this description, and the content of his statement to police given at the detachment, it is quite apparent that the accused was not mentally well. [ 10 ] The fitness assessment conducted by Dr. Miller in May 2016 found the accused fit to stand trial. However, Dr. Miller concluded that the accused was suffering from a psychotic episode and that he continues to hear voices.

His opinion was that the accused was probably mentally disordered. [ 11 ] An NCRMD assessment was organized for May 2016 and Dr. Kolchak reported in his June 2016 letter that the accused was in a psychotic state at the time of the stabbings, but that the psychosis was probably brought on by self-induced intoxication with marihuana voluntarily consumed prior to the offence. Dr. Kolchak testified.

Although admitting of considerable uncertainty, he remains of the view that the leading hypothesis as to what happened in this case is that ingestion of marihuana triggered a state of psychosis which in turn led to the violent acts that form the basis of the charges on the indictment. [ 12 ]

Section 33.1 of the Criminal Code provides: When defence not available

(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

Criminal fault by reason of intoxication

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person. Application

(3) This

section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person. [ 13 ] I was provided with the leading authorities on self-induced intoxication. [ 14 ] I agree with the submissions of counsel, both for the Crown and the accused, that there is little doubt that the accused was in a psychotic state at the time of this senseless incident.

Furthermore, I have no hesitation in adopting the submissions of counsel that s. 16(1) is engaged: the mental disorder rendered him incapable of appreciating the nature and quality of his acts, and the mental disorder rendered him incapable of appreciating that the acts were morally wrong. [ 15 ] The issue is whether the evidence supports the conclusion that the psychotic state was, on the balance of probabilities, induced by voluntary consumption of marihuana as Dr.

Kolchak opined in his report and in his evidence at trial. [ 16 ] I agree with the submissions from the Crown and the accused that the evidence is not capable of supporting a finding that the accused was in a state of intoxication at the time of the stabbings. Nothing in the accused's police statement lends support in any meaningful way to this proposition. There is nothing in the accused's evidence at trial to lead me to the conclusion that he was intoxicated.

Generally speaking, I found the accused’s evidence reliable, and I accept his evidence that he had a very limited amount of marihuana between his release from hospital and the assaults. [ 17 ] In fairness to Dr. Kolchak, I think there is enough in the history he took from the accused for this expert to consider Substance Use Disorder – Cannabis as part of a differential diagnosis, and perhaps enough for this diagnosis to be the leading candidate given some of the contraindications this expert identified respecting other conditions that might explain the delusions. However, as Dr.

Kolchak reiterated during the course of his evidence, it is difficult to know what brought on these auditory hallucinations. I am not convinced on a balance of probabilities — a standard that requires clear, convincing and cogent evidence — that the accused's psychosis on the date of the assaults was brought on by ingestion of marihuana. [ 18 ] I note the report of Micheal Rosland. This toxicologist's evidence is that while cannabis has been associated with the transient appearance of psychotic behaviours in healthy individuals, the literature suggests that this response is dose-related.

What little evidence there is about dose in this case points away from significant dosage at the material time. [ 19 ] To sum up, my first task is to determine if there is a mental disorder that fits the s. 16(1) criteria. I agree with counsel that the evidence on this score is clear.

I am not required to reach a conclusion on the difficult medical issue of classifying the accused's mental disorder under DSM-5 or otherwise. [ 20 ] My further task in this case, as the issues have been framed, is to determine whether it is more likely than not that the accused was in a state of self-induced intoxication by marihuana or otherwise. The evidence does not support this conclusion. [ 21 ] Accordingly, the s. 16(1) definition is met, and s. 33.1 does not apply.

I conclude, therefore, that the accused committed the stabbings but was, at the time, suffering from mental disorder so as to be exempt from criminal responsibility. [ 22 ] Would you please stand up, Mr. Clark. [ 23 ] In these circumstances, s. 672.34 of the Criminal Code directs that the verdict to be rendered is that you committed the acts on the indictment but you were not criminally responsible on account of mental disorder. “Thompson J.”