R. v. Klinard, 2011 ONCJ 279

COURT FILE No.: 10 1926 / 11 9257 Citation: R. v. Klinard , 2011 ONCJ 279 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — EDWARD KLINARD Before Justice Gregory A. Campbell RULING – APPLICATION FOR FINDING OF NOT CRIMINALLY RESPONSIBLE MAY 19 TH , 2011 Mr. Brian Manarin ............................................................................................... for the Crown Mr. Neil Rooke ...................................................................... for the Accused Edward Klinard CAMPBELL J.: NATURE OF PROCEEDINGS : [ 1 ] Following findings of guilt that Mr.

Klinard uttered threats to cause death to the Governor General of Canada and to destroy or damage the Parliament Buildings in Ottawa as alleged in Information No. 11 – 9257 and findings of guilt that Mr. Klinard further possessed firearms without a licence or registration and that he stored same in an unsafe manner as alleged in Information No. 10 1926, the Crown moved for a finding that Mr.

Klinard was Not Criminally Responsible for his actions and omissions on the basis that he was suffering from a mental disorder that rendered him incapable of knowing that his conduct at all material times was wrong. [ 2 ] Agreed Statements of Fact were entered as exhibits on consent. The Statements of Fact essentially consist of police occurrence reports and summaries of their investigations none of which were in dispute. [ 3 ] Insofar as the utter threat allegations are concerned, the material facts are that on April 5, 2011 Mr.

Klinard sent email messages to the attention of the Governor General of Canada indicating that death, destruction and abduction will be visited upon him, others and the parliament buildings with the aid of a battle ship, surgical mutilation and a supernova of the sun, amongst other things. Throughout several messages Mr.

Klinard indicated that he is speaking on behalf of others with incoherent references to astronomical and celestial objects. [ 4 ] Insofar as the firearm possession and storage charges are concerned, the police were alerted to a disturbing posting on an internet message board allegedly placed by Mr. Klinard. They attended Mr. Klinard’s home to look into the matter. They discovered two rifles and a shotgun which Mr. Klinard was neither licensed nor registered to hold. None of the weapons had trigger locks and the shotgun was loaded with three rounds.

Section 16 of the Criminal Code provides as follows:

(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. [emphasis added]

(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] Insofar as the Crown seeks the finding of Not Criminally Responsible, the onus is on the Crown to meet that burden on abalance of probabilities. To this end, the Crown not only relied on the Agreed Statements of Fact, but also the testimony of Dr. RomanKomer a licensed Physician and registered Psychiatrist who was qualified as an expert to provide opinion evidence with respect to mentaldisorders and in particular, Mr. Klinard’s capacity to appreciate what was wrong. [6] Dr. Komer met with Mr. Klinard at the Windsor jail initially three days following Mr.

Klinard’s arrest for uttering threatsand a second time a week later. He spent more than 2.5 hours with Mr. Klinard. Doctor Komer also reviewed copies of the sworninformations, bail hearing synopsis and police investigative summaries and statements. He also reviewed an audio visual DVD recording of an interview of Mr. Klinard, conducted by the RCMP on April 5th, 2011. [7] I have no reason to reject the opinion expressed by the Doctor or any of its underpinnings. His opinion, which was notchallenged, is that Edward Klinard was at all material times suffering from a major mental illness.

He diagnosed a delusional disorderthat involves a fixed set of false beliefs including a strong belief by Mr. Klinard in UFO’s and, in particular, a belief that he has beenchosen on earth by aliens to somehow carry out their work or objectives. [8] The Doctor also held the opinion that Mr. Klinard has some persecutorial beliefs about people trying to cause him harmor death and while Mr. Klinard denies that he suffers from hallucinations, the Doctor has reason to believe otherwise. [9] Dr. Komer was asked if he was aware whether Mr. Klinard had any insight into his mental disorder and the need fortreatment.

In response, the doctor stated that Mr. Klinard does not believe he is mentally ill and believes he has proof of his UFO sitingsand circumstances in that regard. To this end, the doctor said this is illustrative of his fixed false belief or delusion as he looks at it andtalks to other people about it emphatically and believes it’s reality. He explained that while Mr.

Klinard could understand that what hehad done could be viewed as legally wrong, the accused nevertheless believed that what he was doing was not morally wrong insofar ashe considered his actions, including sending the emails, as having been done with good intent and for the common good of society basedon his belief in UFO’s and their expectations of him. So, in his mind, Mr. Klinard believed that what he was doing was morally right. [10] Counsel for Mr. Klinard did not take issue with the fact that his client suffers from a disease of the mind as diagnosed byDr.

Komer but questioned whether the legal test for a finding of not criminally responsible has been satisfied on the basis that Dr. Komerwas not able to indicate if he had specifically asked Mr. Klinard if he had any understanding of how society or an ordinary reasonablyprudent person would regard his actions. [11] With that, the Defence placed specific emphasis upon the Supreme Court’s remarks at paragraph 101 in R. v. Chaulk (SCC), [1990] S.C.J.

No. 139: First, the incapacity to make moral judgments must be causally linked to a disease of the mind; if the presence of a serious mentaldisorder is not established criminal responsibility cannot be avoided. Secondly, as was pointed out by Dickson J. in Schwartz, supra “ “[m] oral Wrong” is not to be judged by the personal standards of theoffender but by his awareness that Society regards the act as wrong”. (p.678). The accused will not benefit from substituting his own moral code for that of Society.

Instead, he will be protected by Sections 16 sub(2) if he is incapable of understanding that the act is wrong according to the morale standards of reasonable members of society. [12] I don’t interpret the court’s analysis at paragraph 101 as a pre-requisite for the court to be satisfied that the accused was atsome point specifically asked or otherwise disclosed information to specifically indicate that he had an understanding of how society oran ordinary reasonably prudent person might regard his actions. [13] At this point in the Chaulk decision, the Court was simply addressing a concern that the defence of not criminallyresponsible, available to an accused under

Section 16, could be abused. An examination of that concern was undertaken by the court inlight of the historical treatment of the defence in light of the court’s departure from Schwartz v. The Queen, (SCC),[1977] 1 S.C.R. 673 where the majority held that the capacity to know that

an act was wrong in that context means no more than thecapacity to know that what one is doing is against the law of the land. In Chaulk, the court overruled the majority decision in Schwartzand adopted the dissenting decision of Dickson J. whose

interpretation of “wrong” was one of being “morally wrong”. It was in thiscontext that the court in Chaulk, at paragraph 101 addressed a concern that such an

interpretation could be used by amoral persons whohad rid themselves of all moral compunction. To this end, adopting Dickson J.’s reasoning in Schwartz, the Supreme Court pointed outthat the argument overlooks the factor of first having to have a disease of the mind. [14] In Chaulk the court considered and accepted Professor Alan Mewett’s analysis in “Section 16 and ‘Wrong’” (1976) 18Crim. L. Q. 413, at pp 415-16 subject to one qualification that is important insofar as the ultimate decision in this case is concerned.

Atparagraph 99 of Chaulk, the Supreme court had the following to say: “It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by reason of a disease of the mind,believes that it would be “right” according to the ordinary morals of his society to commit the crime in a particular context. In thissituation, the accused would be entitled to be acquitted by reason of insanity.” [15] I’ve considered the reasoning in Chaulk and the object of s. 16(1) and in particular the dicta in regard to the meaning of theword “wrong” between paragraphs 76 and 103 of the decision.

I can find nothing that causes me to conclude that before the court can besatisfied the accused was incapable of knowing the act was immoral by societal standards he ought to have been specifically asked aboutwhether he had any such knowledge. Clearly such a determination must be made by considering the whole of the evidence which may ormay not include a specific answer to the question from the accused. [16] I have the uncompromised opinion of a qualified psychiatrist who not only met with the accused on two separate occasions

for more than 2.5 hours, but also reviewed the case file, made inquires of others and watched a police interview of Mr. Klinard that was conducted within nine days of the offence of uttering threats. The doctor stood in the unique position of being able to assess Mr. Klinard’s knowledge and awareness of the world he lived in and to that end was able to determine that Mr. Klinard believed that what he was doing was right according the morals of his society. [ 17 ] Little if anything more could have been gained by asking Mr. Klinard if he had any specific insight in regard to how society might view his actions.

The answer to that question is to be determined by the court from a consideration all the evidence. Dr. Komer’s uncontested testimony was that notwithstanding Mr. Klinard’s understanding that what he had done could be viewed as legally wrong Mr. Klinard nevertheless believed that he was acting for the common good of society and in a manner he believed would serve to benefit society. That is the evidence I have available. That is the evidence I have to rely upon. To my mind this opinion demonstrates that Mr. Klinard did not appreciate that society would regard his conduct as morally wrong.

FINDING: [ 18 ] I have given consideration to the whole of the testimony. There can be no doubt that Mr. Klinard suffers from a major mental disorder described by Dr. Komer as delusional thoughts that together with other diseases of the mind caused Mr. Klinard to believe that the acts committed by him and as they relate to all of the offences before the Court, occurred at a time when Mr. Klinard was suffering from such a disorder that rendered him incapable of knowing that his actions were wrong. [ 19 ] The Crown has discharged its burden of proof.

A finding of not criminally responsible will be entered pursuant to sections 16(1) and 672.34 of the Criminal Code of Canada . DISPOSITION [ 20 ] In Dr. Komer’s opinion, Mr. Klinard requires treatment in a hospital setting as opposed to being treated in the community. His reason for this opinion is in part because Mr. Klinard does not see himself as being in need of treatment. He therefore would not be a good candidate for community based treatment. The treatment required would likely involve the administering of anti-psychotic medication. Mr.

Klinard would not likely take the medication because he does not see himself in need of it. In such circumstances, a substitute decision maker would have to become involved in order to facilitate treatment which would be very difficult to do outside of a hospital setting. It is anticipated that because of the nature of the illness and the fact that the mental conditions at issue have likely evolved over the course of two to four years, the treatment of Mr. Klinard’s mental illness will take a considerable amount of time. Dr. Komer added that the Mr.

Klinard’s condition is such that it will continue if left untreated. Moreover, Dr. Komer stated that until such time as the condition is appropriately dealt with, Mr. Klinard will be a potential threat to the community. When asked to explain why he perceived the potential for community threat, Dr. Komer pointed out that Mr. Klinard has a major mental illness, he lacks awareness of the illness, he’s not being treated for the illness and his family support network in the community is limited because he has for the most

part cut himself off from them. And while he has no past history of physical violence, Dr. Komer suggested that the manner by which Mr. Klinard has conducted himself by acting on his delusions is such that if left to his own devices, over time, all of this uncertainly could lead to physical aggression and while that may not be acutely present, there is certainly a risk of psychological harm. [ 21 ] Pursuant to

section 672.45 a disposition hearing will be held by the Ontario Review Board. A copy of the sworn Informations, transcript of the proceeding, exhibits filed and this finding shall be filed with the Review Board for its review and consideration in conducting a disposition hearing.