R v Gill, 2023 ABKB 212

Court of King’s Bench of Alberta Citation: R v Gill, 2023 ABKB 212 Date: 20230413 Docket: 200308294Q1 Registry: Calgary Between: His Majesty the King Crown - and - Bipinjot Gill Accused _______________________________________________________ Reasons for Decision of the Honourable Justice J. C. Price _______________________________________________________ I. Introduction [ 1 ] Tragically, two people died and one person was seriously injured as a result of a vehicle collision on May 18, 2019.

Bipinjot Gill has pleaded not guilty by reason of mental disorder to the three charges made against him that on May 18, 2019, at or near Calgary, Alberta he operated a conveyance in a manner that was dangerous to the public, and as a result, caused the deaths of Belqees Begum and Uzma Afzal and caused bodily harm to Muhammad Afzal contrary to sections 320.13(2) and 320.13(3) of the Criminal Code . II. Background [ 2 ] An Agreed Statement of Facts (ASF) was made an exhibit in the trial. Jurisdiction and identity were admitted. [ 3 ] Pursuant to the ASF, Mr.

Gill was driving a 2012 Black Hyundai Accent (the “Hyundai”). The Hyundai struck a 2009 Blue Toyota Corolla (the “Toyota”) at the intersection of 128 Ave & Metis Trail NE (the “Collision”) at approximately 00:26 AM on May 18, 2019, causing the death of Belqees Begum and Uzma Afzal and causing bodily harm to Muhammad Afzal. [ 4 ] Furthermore, it is admitted in the ASF that the traffic control devices at the scene of the Collision were operational. There was no issue with street lighting. Mr.

Gill was driving the Hyundai on Metis Trail at a speed of 152 km/hr five seconds prior to the Collision and at a speed of 140 km/hr at the time of the Collision. The posted speed limit for Metis Trail is 70 km/hr. Mr. Gill applied the brakes 0.5 seconds before the Collision. [ 5 ] A collision reconstruction report was admitted. Its authenticity and accuracy were admitted, and it was exhibited at the trial by consent. As stated at page 13 of the primary report: • The weather was not considered a significant factor in this collision

• The pre-collision conditions of the road and environmental conditions were not considered factors in this collision • The streetlighting was not considered a factor in this collision • The mechanical condition of the Hyundai was not considered a factor in this collision • The mechanical condition of the Toyota was not considered a factor in this collision • The speed limit on Metis Trail NE was a posted 70 km/h • The pre-collision speed of the Toyota was calculated to be 12 km/h • The pre-collision speed of the Hyundai was calculated to be 142 km/h • The speed of the Hyundai was considered to be a factor in this collision [ 6 ] The eyewitnesses to the Collision were consistent in their evidence that the Toyota had a flashing green light and had the right of way.

The Hyundai driven by Mr. Gill did not have the right of way. The light he had was red. He did not stop. [ 7 ] Pursuant to the ASF, Mr. Gill declined being transported to hospital for precautionary measures and was treated at the scene by Emergency Medical Services (EMS) and released to the custody of the Calgary Police Service (CPS). [ 8 ] The ASF and testimony of the Crown’s witnesses establishes beyond a reasonable doubt that Mr. Gill drove the Hyundai in a manner dangerous to the public. It was just after midnight. It had been raining. Traffic volume was light. While travelling northbound on Metis Trail, Mr.

Gill was driving at up to speeds of 152 km/h, and at the time of the collision was driving 140 km/h. Mr. Gill did not apply brakes to his vehicle, until 0.5 seconds before the Collision. III. Issues [ 9 ] The issues in this trial are: (

a) Whether the Crown has proved beyond a reasonable doubt that Mr. Gill was operating his vehicle in a manner that was dangerous to the public?; and (

b) Whether Mr. Gill is not criminally responsible on account of mental disorder? A. Has the Crown proven beyond a reasonable doubt that Mr. Gill was operating his vehicle in a manner that was dangerous to the public? 1.

The Law [ 10 ] In R v Roy , 2012 SCC 26 at para 28 , Justice Cromwell explained the applicable principles, of dangerous driving as set out by Justice Charron in R v Beatty , 2008 SCC 5 : The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place ( s. 249(1)(

a) of the Criminal Code ) . The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances ( Beatt y, at para. 43 ). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm.

While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [ 11 ] Justice Cromwell in Roy explained at para 34 the actus reus element as follows: In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances.

The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. [ 12 ] Justice Cromwell in Roy explained the fault or mens rea element at paras 36 and 38 as follows: It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible.

If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement.

The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40) . . . .

2. Crown Evidence [ 13 ] The following lay witnesses were called by the Crown: Mohamed Moursi; Arjun Kumar; Trevor Thompson; and Asif Ashfaq. As well, the Crown called first responders: Stephanie Wall, EMR; Fire Captain Finnigan; Constable Darren Grey; and Sergeant Paul Merchant. In addition, the Crown also called Constable Paul McCallum, an expert in collision reconstruction. A

summary of the testimony of the Crown’s witnesses follows: [ 14 ] Stephanie Wall is a paramedic with 14 years experience in her field of work. Wall arrived at the scene just after midnight. Wall tended to the passengers of the vehicle that was struck. Wall declared two of the patients to be deceased: a female who had been ejected from the vehicle and was located 10 meters away from it and a female who was in the back seat of the vehicle. The front male passenger (patient) had to be extricated from the vehicle with assistance from the fire department.

The fourth patient, the driver of the vehicle, was taken by ambulance to the hospital. She recalled that it was a warm evening, a “nice night” with “little traffic” on the roads at the time. [ 15 ] Mohamed Moursi was driving another car in the same intersection at the time of the Collision. He was turning onto 128 Avenue and he testified that he heard but did not see the Collision. Moursi explained that while he was waiting for the light to turn green, there was a vehicle on his right side, in the dual turning lane. That vehicle was the vehicle that was struck by the Accused’s vehicle.

He testified that he was turning on a flashing green arrowed light and that his vehicle was ahead of the vehicle that was struck when the vehicles were moving to turn. He said that it was raining but it was clear, and he did not have any difficulty in driving that day. [ 16 ] Arjun Kumar testified at the trial. He was not cross-examined by counsel for the Defence. Kumar saw the Collision. He saw the Accused’s vehicle run the red light and hit the vehicle at “high speed”. He saw a body from the vehicle that was hit “fly” out of the vehicle from the rear passenger/back window of the driver’s side of the car.

He witnessed the reaction of the driver of the vehicle that was hit. He described what he saw as “traumatizing”. He said that it was raining that night. [ 17 ] Trevor Thompson was driving north bound on Metis Trail when a black sedan passed him. He testified that he himself was going 20 km over the posted speed limit. He described the speed of the black sedan as “extremely fast” and that the black sedan passed his vehicle “as if I were standing”. Thompson said that the Collision he witnessed happened at the intersection of Metis Trail and 52nd Street.

Although that is not the accurate intersection of where the Collision occurred, I am reasonably satisfied that Thompson’s testimony is otherwise reliable. Thompson described the driving conditions that evening as “clear dry roads, no clouds”. He testified that there were no other vehicles heading in the same direction as he and the black sedan were heading that night. He said that he travelled approximately three km before arriving at the intersection where the Collision occurred. Thompson said that the “dark colored car ran the red light as the white car almost cleared the intersection”.

He testified that he saw “the black vehicle accelerating towards the red light as the white vehicle turned left.” The black vehicle struck the white vehicle that was turning onto the cross street heading East bound. He said he had no issues with impairment or vision that night. [ 18 ] Thompson testified that after the collision he proceeded to the black car and after he realized that the driver of that car was conscious and okay, he ran over to the other vehicle to find two deceased persons, one unconscious person and the driver of the vehicle outside, screaming.

He then explained that he went to the driver who was screaming and hugged him tight until the first responders arrived. Thompson testified that the driver of the black vehicle responded to him that he was “ok” but Thomson described the driver of the black vehicle as not coherent. He observed the driver of the black vehicle sitting beside the black vehicle on the grassy part of the median. The driver stumbled out of the vehicle and sat down and “acted as if he hit his head”.

On cross-examination, Thompson identified the Accused as the driver of the black vehicle. [ 19 ] The first responders on the scene were retired Captain Finnigan and Constable Darren Grey . Captain Finnigan testified that his crew was the “first” of the first responders to arrive on scene of a “heavy collision” at 128 th Avenue and Metis Trail North just after midnight on May 18, 2019. He observed a person who was ejected from the vehicle on the ground. He did not recall whether there were any significant weather problems that night and that traffic was “about medium”.

Captain Finnigan said that ambulance and police personnel arrived and helped secure the scene. He said the scene of the collision was “very serious”, explaining that there were two deceased individuals who were as he described “not workable”. Also, there was a trapped patient who had serious injuries and needed to be extracted. He said the driver of the other vehicle was identified and that he went to talk to him. Captain Finnigan testified that a witness came up to him and said that the “driver is up the road trying to leave”.

Captain Finnigan said that he went up to the driver of the vehicle that was on Metis Trail passed the intersection. He asked him if he was the driver and the driver said “yes”. He told the driver that he needed to be seen by ambulance and advised ambulance and police personnel that this was the driver and told them not to let him leave. [ 20 ] Cst. Grey has been with CPS for 14 years. In May 2019, at the time of the Collision he was working in the traffic unit. He explained that they enforce traffic violations, conduct collision investigations and conduct commercial vehicle inspections.

Prior to Constable Grey’s testimony, Crown Counsel explained that he was being called to give evidence around what he observed to address the “NCR defence”. The Crown also advised that they have not raised any issue of the Accused’s impairment. [ 21 ] On May 18, 2019, Cst. Grey was on duty in full uniform driving an unmarked Ford 150. He arrived at the scene at approximately 12:50 AM. He described the scene as “horrific”. He saw a vehicle in the intersection with a body lying outside of the vehicle and a deceased in the vehicle. He said it was a “big scene”.

He said that by the time he arrived on the scene the Calgary Fire Department was there. There were two vehicles involved: a Toyota Corolla; and a black sedan. Cst. Grey located the driver of the black sedan approximately 20 to 25 minutes after arriving on scene. The driver was with EMS and Cst. Grey said he waited for EMS to say it was “okay” to take continuity of the driver. EMS handed him the driver’s license and that’s when he took over the continuity of the driver of the black sedan. By this time it was approximately 1:30 or 1:35 AM. He confirmed that it was Mr. Gill. He spoke with Mr. Gill. Mr.

Gill responded in one-word answers to his questions. [ 22 ] Cst. Grey did ASD screening and asked Mr. Gill if he understood. Cst. Grey testified that Mr. Gill indicated to him that he understood but he refused to submit to the ASD screening. Cst. Grey put him under arrest for refusing the ASD. He then sat in the vehicle with Mr. Gill and caught up on his notes. Mr. Gill provided him with a written statement, but it was difficult to read. Cst. Grey

asked him to read back the statement to clarify the words Mr. Gill wrote down in the statement. Mr. Gill complied and provided clarification to Cst. Grey. Cst. Grey explained that Mr. Gill was responsive to his questions, that he was quiet but compliant. [ 23 ] Later that morning, Mr. Gill was charged with dangerous driving causing death and bodily harm. He was then Chartered and cautioned by Cst. Grey in the police vehicle. According to Cst. Grey, Mr. Gill understood what he had said, and Mr. Gill responded by asking to speak with a “free” lawyer. Mr.

Gill was later transported to the unit (5 District) and spoke to a lawyer for seven minutes. Cst. Grey described Mr. Gill as compliant and that he appeared to understand what his rights were and exercised his right to call legal counsel. Prior to his release, Cst. Grey conducted a Traffic Statement investigation to get the 24-hr background information of Mr. Gill’s life. Cst. Grey explained that the conversation started and it was clear. Mr. Gill gave Cst. Grey clear answers to questions asked such as name and address. Cst. Grey testified that he asked Mr. Gill about his occupation and Mr.

Gill gave him information regarding his occupation in computers and IT. After those initial questions other questions were asked and Mr. Gill responded that “my lawyer advised me not to say anything”. Cst. Grey explained that he wrote those words into the statement, he presented it to Mr. Gill to confirm that was what Mr. Gill told him and Mr. Gill signed off on it. He was then released and told the police officers he would take a cab. A cab was called for Mr. Gill by another officer and Mr. Gill left. [ 24 ] Sergeant Paul Merchant testified at the trial.

His body camera video was entered as an exhibit at the trial. His testimony and the video evidence are relevant to the Accused’s state of mind at the time of the incident. [ 25 ] Sgt. Merchant has worked for CPS for 21.5 years. He was working on May 18, 2019, and was one of the responders who had direct interaction with the Accused. Sgt. Merchant described the scene as “chaotic” with lots of people at the scene that were not first responders. He testified that where the Collision occurred was not a well-lit roadway. A firefighter told Sgt. Merchant that the Accused was in an ambulance at the scene.

The same firefighter told Sgt Merchant that the Accused was trying to run away from the scene. Sgt. Merchant explained that he thought that the “driver” was being treated in the ambulance and that he was surprised when he opened the door to the ambulance to find a male sitting up right and no staff in there with him. It is clear that at this time, Mr. Gill is not running from the scene. [ 26 ] Sgt. Merchant testified that he asked Mr. Gill if he was alright, if he was involved and then obtained his identification from him. Sgt. Merchant said that Mr. Gill was responsive to his questions.

He described in both direct examination and in cross-examination that Mr. Gill’s behaviour was “odd”. However, he was able to have a conversation with him and although Mr. Gill responded slowly, Mr. Gill did respond to the questions asked of him appropriately. After they were in the ambulance Mr. Gill was removed and brought to Sgt. Merchant’s car. It is evident from review of the video that Mr. Gill was cooperative but may have also been in shock and may have been afraid of all what was happening outside from the ambulance. [ 27 ] Sgt. Merchant asked Mr. Gill questions and his responses were “appropriate”. Sgt.

Merchant noted that Mr. Gill was favoring one of his legs and that Mr. Gill had trouble walking in a straight line. He asked him again if he was impaired or drunk. Mr. Gill explained that he was in a collision. At the trial, Sgt. Merchant identified the Accused as Mr. Gill the man he was dealing with at the scene on May 18, 2019. From my review of the video camera, Mr. Gill was cooperative throughout his interactions with Sgt. Merchant. He appeared slow to speak but otherwise was coherent. [ 28 ] The weather conditions described by Sgt. Merchant was that it had been raining but it was clear.

From the video, it is clear that it had been raining that night and the roads were wet. There was rain that had fallen on the windshield of the police vehicle seen in the video. Early on the windshield wipers are on in the police vehicle and then Sgt. Merchant turned them off. [ 29 ] Based on my review of the video, I find Mr. Gill to be coherent and answering, albeit slowly but appropriately and responding to directions of Sgt. Merchant and the paramedics. Sgt. Merchant did not report any smell of alcohol and when asked, Mr. Gill said he was not drinking or doing drugs. Sgt. Merchant noted that the pupils of Mr.

Gill’s eyes were dilated. Sgt Merchant testified that he was not able to confirm that Mr. Gill was on drugs. I noted from my review of the video that Mr. Gill was able to explain where he lived and he gave both his landlord’s name and phone number. When asked why he was speaking so slowly, he responded, “it is late and I am tired”. Plus, I note, he had been in a horrific car collision that killed two people. [ 30 ] Constable Paul McCallum was qualified as an expert in collision reconstruction. Entered as exhibits at the trial that formed part of Cst. McCallum’s testimony were the following documents:

i) Curriculum Vitae of Cst. McCallum; ii) Collision Reconstruction Report prepared by Cst. McCallum; iii) Reconstruction Report – Additional prepared by Cst. McCallum; iv) Photobook;

v) detailed maps; and vi) weigh scale certificates. 3. Circumstances of the Collision [ 31 ] First, I accept the determinations found by the expert, Constable McCallum outlined above at para 5. It is undisputed that the Collision occurred at the intersection of Metis Trail, and 128 Avenue, in the northeast quadrant of Calgary. The intersection was controlled by traffic lights and there were pedestrian cross walks on all four sides of the intersection with pedestrian activated controls.

The approach to the intersection in all four directions was clear of any large obstruction with long open sight lines. [ 32 ] The posted speed limit for Metis Trail was a maximum of 70km/h. [ 33 ] At the time of the Collision the Toyota was travelling southbound along Metis Trail and negotiating the turn onto eastbound 128 Ave.

At the same time the Hyundai was travelling northbound along Metis Trail crossing northbound through the intersection. [ 34 ] The Toyota crossed into the path of the Hyundai as it made its turn. [ 35 ] The vehicles collided as the Hyundai struck the passenger side of the Toyota in an off-set side impact which caused significant intrusion into the occupant compartment. Due to the impact the rear of the Toyota split by the rear roof seam, at the joint with the C-pillar.

[36] Following the Collision both vehicles rotated to final rest and as a result one female occupant of the Toyota was ejected fromthe vehicle and another female occupant was partially ejected. Both were pronounced dead at the scene. [37] I have no difficulty concluding, beyond a reasonable doubt, that Mr. Gill’s manner of driving, viewed objectively, wasdangerous to the public. He was speeding for a duration of time on Metis Trail. His speed was twice the speed limit, and as found by theexpert in collision reconstruction was a factor in the Collision.

The incident took place just after midnight while there was barely anytraffic. [38] The application of the fault element has some complexities. A reasonable person would have foreseen the risk of driving at aspeed twice the posted speed limit, on a road with controlled intersections, at night, in light rain and wet road conditions, while there wassome light traffic on the roads. I find that a reasonable person would not have been driving at the speed that Mr. Gill was driving.

I findthat a reasonable person would have foreseen that driving at 140 km/h at the time of the Collision on a road with controlled intersections,could result in an accident. Mr. Gill’s driving would have been a marked departure from the standard of care of a reasonable persondriving on Metis Trail. [39] However, if because of his mental condition Mr. Gill lacked capacity to appreciate the risks created by his driving, he couldnot be at fault for these offences that he is charged with.

The modified objective standard by which fault is determined for this offenceentails that the circumstances included his mental condition and any lack of capacity caused by that mental condition. B. Is Mr. Gill not criminally responsible by virtue of mental disorder? 1. The Law [40] The issue that remains is whether, by virtue of s. 16(1) of the Criminal Code, Mr. Gill committed dangerous driving but is notcriminally responsible on account of mental disorder: Criminal Code, s. 672.34. I will consider whether at the material times Mr.

Gillsuffered from a “mental disorder”, and, if yes, whether the mental disorder rendered him incapable of appreciating the nature and qualityof his acts, or, whether the mental disorder rendered him incapable of knowing that his acts were wrong. [41] Subsections 16(1), (2), and (3) of the Criminal Code provide that: 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. [42]

Section 672.34 states that if an accused meets the conditions of s. 16(1), the accused is “exempt” from criminal responsibility. [43] In general, everyone is presumed not to suffer from mental disorder. The presumption is rebuttable on a balance ofprobabilities. The onus is on the party raising the issue. Therefore in this case, Mr. Gill bears the burden of proving that s. 16(1) applieson a balance of probabilities: R v Chaulk, (SCC), [1990] 3 SCR 1303 at 1396. [44] There are two steps in s. 16(1).

First, the defendant must show that he was suffering from a mental disorder that rendered himincapable of appreciating the nature and quality of his act. Second, if it is determined that the accused is suffering from a mentaldisorder, the mental disorder must be sufficiently severe to bring it within the branches of s. 16(1). The second step is only engaged if Ifind that he was suffering from a mental disorder. Under the first branch the mental disorder must have rendered the accused incapableof appreciating the nature and quality of the act or omission.

Under the second branch the mental disorder must have rendered theaccused incapable of knowing that the act or omission was wrong. The branches are alternatives.: Cooper v R (1979), (SCC), [1980] 1 SCR 1149 at 1159; Chaulk at 1397; R c Bouchard-Lebrun, 2011 SCC 58 at para 49. [45] Under s. 16(2) of the Criminal Code, everyone is presumed “not to suffer from a mental disorder so as to be exempt fromcriminal responsibility.” An accused who seeks the protection of s. 16(1) bears the burden of proving that the assumption or presumptionof sanity does not apply to him or her: Criminal Code s. 16(3).

The burden of proof that the accused must satisfy is proof on a balance ofprobabilities: Criminal Code s. 16(2). The accused, though, must prove more than that it was merely possible, reasonably possible, oreven reasonably probable that he or she met each of the conditions of s. 16(1).

The accused must prove that it is likely or more likely thannot or probable or more probable than not that at the time of the act he or she met the conditions of s. 16(1): R v Paquette, 2018 ABQB212 at para 17. [46] If the accused can prove that he or she met the conditions outlined in s. 16(1) the verdict becomes “not criminally responsibleon account of mental disorder and is diverted to a special set of procedures that are designed to treat the offender and protect the public:Winko v Forensic Psychiatric Institute, (SCC), [1999] 2 SCR 625 at para 21; Bouchard-Lebrun at para 53; Paquetteat para 18. [47] In

summary, Mr. Gill bears the burden on a balance of probabilities of proving that s. 16(1) applies to him. In other wordsMr. Gill must establish on a balance of probabilities that at the time he drove his vehicle down Metis Trail on May 18, 2019, he sufferedfrom a mental disorder. If he establishes that he was suffering from a mental disorder, he must then show that the mental disorderrendered him incapable of appreciating the nature and quality of his acts or the mental disorder rendered him incapable of knowing thathis acts were wrong. 2. Determination of Disease of the Mind

[48] The Criminal Code defines mental disorder as a “disease of the mind” in s. 2. It is for the judge to determine whether acondition falls within the term “disease of the mind” not a medical expert: Bouchard-Lebrun at para 61. The judge’s determination isbased on medical, psychiatric, or psychological evidence: R v Parks, (SCC), [1992] 2 SCR 871 at 898; R v Stone, (SCC), [1999] 2 SCR 290 at para 195.

A medical expert will generally give expert evidence to assist the trial judge indetermining whether the accused suffers from a legally recognizable disease. [49] To determine whether a condition is a disease of the mind, a trial judge should take a holistic approach: Stone at paras 203-218.

The basic features of “disease of the mind” was addressed by the Supreme Court in Cooper at 1159. “Disease of the mind”embraces any illness, disorder or abnormal condition that impairs a person’s mind and its functioning, excluding self induced statescaused by voluntarily drinking alcohol or taking drugs or temporary mental states, such as hysteria or concussion: see Bouchard-Lebrunat paras 39 and 59.

The court must consider all the relevant factors including whether the accused’s action emanated from an “internalcause”, whether the accused constitutes a continuing danger to society, and whether the alleged trigger is likely to recur: Stone at para197. 3. Evidence of the Accused’s Mental Health [50] Expert evidence concerning Mr. Gill’s mental condition was provided through the testimony and report of Dr. OluyemisiAjeh. Dr. Ajeh was qualified as an expert at the trial in forensic psychiatry. She conducted a psychiatric assessment of Mr. Gill.

Dr.Ajeh’s, February 15, 2023, report was filed as an exhibit in the trial. [51] Experts must be impartial, independent, and unbiased: White Burgess Langille Inman v Abbott and Haliburton Co., 2015SCC 23 at para 32. I find that Dr. Ajeh fulfilled her duty to the Court by providing impartial, independent, and unbiased evidence. [52] In preparing her report, Dr. Ajeh reviewed previous medical records as well as “extensive legal information provided by theOffice of the Crown Prosecutor in October 2022”. In addition, Mr.

Gill was assessed in person at the Forensic Assessment andOutpatient Services (FAOS) on January 10, 18, 2023 and February 10, 2023, for approximately 90 minutes at each sitting. Collateralhistory was obtained from Mr. Gill’s mother and uncle. [53] Dr. Ajeh noted that there was no record of contact with psychiatric services prior to the index offences. She acknowledgedthat Mr. Gill was taken to the hospital on his way to India in October 2019, but opined that this was a “situational crisis”. She noted thatMr.

Gill had just experienced a relationship break-up, was despondent at having to return to India and had reported an increaseddependence on illicit substances. After he returned to India, he was treated for a psychotic illness for three months between October 2019and January 31, 2020. He returned to Canada and in July 2021, he presented to the Rockyview General Hospital on account of bizarrebehaviour. It was attributed to illicit drug use. He was admitted again on August 7, 2021, when he was found unresponsive in his bed. Headmitted to the use of heroin and crack cocaine.

After this hospitalization it was noted that there was no evidence of acute mood orpsychotic disorder. [54] Dr. Ajeh noted that Mr. Gill self-reported hearing voices at the time of the index offences, telling, him to drive fast, howeverhe reported that he did not consider this significant enough to attend the hospital and he continued driving after the index offencesbecause the voices stopped after a few days. Dr Ajeh determined this indicated a “substance induced etiology”. [55] Dr. Ajeh concluded that Mr.

Gill suffers from polysubstance disorder as well as adjustment disorder with depressed mood.He was diagnosed with schizophrenia following his last admission. Dr. Ajeh noted that it would be important to “establish this diagnosison account of his significant substance use, his reliability and the significant gain associated with having a mental health diagnosis withhis current legal predicament”. [56] Dr. Ajeh concluded that from a medical perspective, there is no evidence that at the time of the offence, Mr.

Gill sufferedfrom a disease of the mind that rendered him incapable of appreciating the nature and quality of the act or omission or of knowing thatthe offences for which he was charged were wrong. [57] From my review of Dr. Ajeh’s report and testimony, by Mr. Gill’s own account and that of his mother and uncle, there was noprevious medical history of a mental disorder or disease of the mind prior to May 18, 2019. He had attended at his family physician’s inJanuary 2019 as there was concern about substance use but there was no medical evidence history of any mental disorder or disease ofthe mind.

It would be a stretch to say based on what evidence Dr. Ajeh had and what is before me in this trial, including the testimony ofMr. Gill’s mother, that Mr. Gill suffered from any mental disorder or disease of the mind prior to May 18, 2019. I find that Mr. Gill hasnot established that he suffered from a mental disorder. 4. Causation by Consumption of Marijuana or Other Illicit Substances [58] There is some evidence before me that Mr. Gill may have been consuming alcohol or drugs prior to the Collision. The Crowndid not pursue an impaired charge.

The Cooper formulation of “disease of the mind” rules out mental conditions an accused has createdby drinking alcohol or taking drugs. If Mr. Gill’s mental condition had been the result of the voluntary consumption of marijuana, itwould follow that, in law, his conduct was not caused by a disease of the mind. Justice LeBel wrote as follows in Bouchard-Lebrun atpara 85: A malfunctioning of the mind that results exclusively from self-induced intoxication cannot be considered a disease of the mind in thelegal sense, since it is not a product of the individual’s inherent psychological makeup.

This is true even though medical science maytend to consider such conditions to be diseases of the mind. [59] Based on my review of the evidence, there is no evidence that Mr. Gill was suffering from a mental health condition or even adisease of the mind created as a result of taking alcohol or drugs on May 18, 2019. [60] I find, on the balance of probabilities, that Mr. Gill was not suffering from a mental health condition, or mental disorder or

disease of the mind on May 18, 2019. [ 61 ] As I have found that there was no evidence of a mental health condition, mental disorder, or disease of the mind as at May 18, 2019, the inquiry ends here. It is not necessary to continue on to the next step: the two branches of s 16(1): whether the offender is incapable of appreciating the nature and quality of the act; or incapable of knowing that the act was wrong. [ 62 ] On the evidence I am satisfied that on May 18, 2019, Mr.

Gill knew that it was wrong but drove at the high speed he did anyway with reckless disregard that his actions could lead to a horrific accident. IV. Verdict [ 63 ] I find that Bipinjot Gill is guilty of the offences for which he is charged in this case. Heard on January 30, 31, February 1, 2, and March 20, 21, 22, 2023. Dated at the City of Calgary, Alberta this 13 th day of April, 2023. J.C. Price J.C.K.B.A. Appearances: Rebecca Ross and Peter Mackenzie, K.C. for the Crown Iretiolu Shittu for Bipinjot Gill