R v Peterson, 2023 ABKB 176

Court of King’s Bench of Alberta Citation: R v Peterson, 2023 ABKB 176 Date: 20230327 Docket: 211097951Q1 Registry: Hinton Between: His Majesty the King Crown - and - Brisen Allen Peterson Accused _______________________________________________________ Reasons for Decision of the Honourable Justice W.N. Renke _______________________________________________________ This decision was delivered orally, with written reasons to follow. [ 1 ] On September 29, 2022 I found Mr.

Peterson guilty of three offences: • On or about the 21 st day of December, 2020, at or near Edson, Alberta, [he] did unlawfully wound, maim, or disfigure Christopher Paradis, thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code of Canada .

• On or about the 21st day of December, 2020, at or near Edson, Alberta, [he] did break and enter a certain place to wit a dwellinghouse and commit the indictable offence of robbery, contrary to section 348(1)(d)/344(1)(

b) of the Criminal Code of Canada. • On or about the 21st day of December, 2020, at or near Edson, Alberta, [he] did, without lawful authority, confine ChristopherParadis, contrary to section 279(2) of the Criminal Code of Canada. [2] The charges arose from an entirely chance encounter between two complete strangers at about 5:00 a.m. on December 21,2020 in the parking lot of the Aries Motel in Edson, Alberta. A machete was displayed, a purported citizen’s arrest occurred, and thecomplainant received very serious injuries and was hospitalized for months.

The trial decision is reported at 2022 ABKB 728. [3] I did not enter a verdict of guilty for each of these offences and I did not enter convictions. [4] The Crown applied under s. 672.12 of the Criminal Code for an assessment order respecting whether Mr. Peterson was, atthe time of committing the offences, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1)of the Criminal Code.

I granted the order. (See R v Swain, (SCC), [1991] 1 SCR 933, Lamer CJC at 986-989respecting the constitutionality of this process.) [5] I had reasonable grounds to believe that the assessment order was necessary and to doubt that Mr. Peterson was criminallyresponsible for the offences because of mental disorder. Those reasonable grounds included the following: • Mr. Peterson’s in-court claims that he was “Her Majesty” • Mr. Peterson’s in-court claims to be an RCMP officer • Mr.

Peterson’s in-court claims respecting “telecommunication” through the electricity of the human body and thereby receiving“orders” to arrest Mr. Paradis. [6] Under s. 672.34, I must now determine whether at the time of committing the acts that formed the bases of the offences, Mr.Peterson was suffering from mental disorder so as to be exempt from criminal responsibility by virtue of s. 16(1) and whether I mustrender a verdict that Mr.

Peterson committed the acts but is not criminally responsible on account of mental disorder. [7] My determination relies on the evidence of the two witnesses who testified in this hearing, Laura Miller and Dr. Erin Will,and on Mr. Peterson’s testimony and oral and written comments during trial. [8] Ms. Miller is Mr. Peterson’s mother. [9] Dr. Will was qualified as an expert in forensic psychiatry. She assessed Mr. Peterson at Alberta Hospital Edmonton andreviewed relevant documentation, including the trial transcripts. Dr. Will provided a report dated January 10, 2023 (Will Report).

Dr.Will had earlier done a fitness-for-trial assessment of Mr. Peterson. [10] I will consider s. 16(1) of the Criminal Code and the special verdict of not criminally responsible on account of mentaldisorder, whether at the time of the attack Mr. Peterson suffered from a “mental disorder,” and, if so, whether the mental disorderrendered him incapable of appreciating the nature and quality of his acts or whether the mental disorder rendered him incapable ofknowing his acts were wrong. Table of Contents I. Subsection 16(1) of the Criminal Code and the NCR Verdict 3 II. Did Mr.

Peterson suffer from a “Mental Disorder”?. 6 A. Disease of the Mind. 6 1. Cooper. 6 2. Stone. 6 B. Evidence. 7 1. Dr. Will’s Conclusions. 7 2. Foundations for Dr. Will’s Conclusions. 8 C. Did the evidence support the finding that Mr. Peterson did not suffer from a “disease of the mind”? 13 1. Malingering. 13 2. Causation by Drugs. 13 D. Did Mr. Peterson suffer from a “disease of the mind”?. 14 E. Did Mr. Peterson suffer from a disease of the mind at the time of the attack on Mr. Paradis?. 15 IV. Effects of the Mental Disorder 15

A. Incapacity to Appreciate the Nature and Quality of His Acts. 16 B. Incapacity to Know His Acts were Wrong. 16 C. Evidence. 18 1. Appreciate the Nature and Quality of His Acts. 18 2. Knowledge that his Acts were Wrong. 19 V. Verdict 19 I. Subsection 16(1) of the Criminal Code and the NCR Verdict [11] Subsection 16(1) of the Criminal Code provides that: 16(1) No person is criminally responsible for

an act committed ... while suffering from a mental disorder that rendered the personincapable of appreciating the nature and quality of the act ... or of knowing that it was wrong. [12]

Section 672.34 of the Criminal Code provides that 672.34 Where … [a] judge … finds that an accused committed the act ... that formed the basis of the offence charged, but was at thetime suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), … the judge shallrender a verdict that the accused committed the act ... but is not criminally responsible on account of mental disorder. [13]

Section 672.34 states that if an accused meets the conditions of s. 16(1), the accused is “exempt” from criminal responsibility.Subsection 16(1), then, does not recognize a “defence” to a criminal charge in the nature of a justification or excuse. A person to whom s.16(1) applies is not acquitted or found not guilty. Rather, in the special circumstances described by s. 16(1), the ordinary rules of criminalresponsibility do not apply.

An accused who meets the conditions of s. 16(1) is “exempted” from the ordinary rules of criminalresponsibility because, at the time of the offence, he or she lacked rationality or the ability to choose between right and wrong. Punishinga person for violating the law only makes sense if that person were capable of understanding and choosing whether or not to obey thelaw. We should not punish a person for making a wrong choice if he or she could not make a choice or could not understand the choicesto be made.

We should not punish a person for his or her acts if the person could not understand what was done or could not understandthat what was done was wrong.

As Justice Dickson, as he then was, noted in R v Cooper, (SCC), [1980] 1 SCR 1149 at1159, The principle was expressed long ago in Hawkins, Pleas of the Crown 1 (2d ed. 1724) where it is said: The Guilt of offending against any Law whatsoever, necessarily supposing a wilful Disobedience can never justly be imputed to those,who are either uncapable of understanding it, or of conforming themselves to it …. (at p. 1) [14] Justice McLachlin, as she then was, dissenting in R v Chaulk, (SCC), [1990] 3 SCR 1303, but not on thispoint, wrote at 1396 that At the heart of our criminal law system is the cardinal assumption that human beings are rational and autonomous: G.

Ferguson, “ACritique of Proposals to Reform the Insanity Defence” (1989), 14 Queen's L. J. 135, at p. 140. This is the fundamental condition uponwhich criminal responsibility reposes. Individuals have the capacity to reason right from wrong, and thus to choose between right andwrong. Ferguson continues (at p. 140): It is these dual capacities - reason and choice - which give moral justification to imposing criminal responsibility and punishment onoffenders.

If a person can reason right from wrong and has the ability to choose right or wrong, then attribution of responsibility andpunishment is morally justified or deserved when that person consciously chooses wrong. [15] Justice McLachlin continued: Where a person lacks this capacity for choice because he or she is not capable of knowing that his or her acts are wrong, the moraljustification for attribution of responsibility and punishment will be absent for, as Ferguson, op. cit., observes at p. 140, “It is immoral topunish those who do not have the capacity to reason or to choose right from wrong”.

Justice McLachlin stated that “criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of makingchoices between right and wrong:” Chaulk at 1397. See R v Bouchard-Lebrun, 2011 SCC 58, Lebel J at para 49. [16] 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.” That is, the assumption of the criminal law is that every person accused of an offence has the capacity to becriminally responsible.

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). If the Crown seeks a not criminally responsible verdict, the Crown bearsthe burden of establishing that the presumption of sanity does not apply. [17] The burden of proof that must be satisfied to overcome the presumption of sanity is proof on a balance of probabilities:Criminal Code s. 16(2).

[18] In this case, the Crown bears this burden of proof. [19] If the Crown establishes that Mr. Peterson met the conditions of s. 16(1) at the time of his material acts, he would be neitheracquitted nor convicted. Rather, the verdict would be that Mr. Peterson is “not criminally responsible on account of mental disorder.”Justice McLachlin wrote in Winko v British Columbia (Forensic Psychiatric Institute), (SCC), [1999] 2 SCR 625 atpara 21 that 21

Part XX.1 [of the Criminal Code] rejects the notion that the only alternatives for mentally ill people charged with an offence areconviction or acquittal; it proposes a third alternative. Under the new scheme, once an accused person is found to have committed acrime while suffering from a mental disorder that deprived him or her of the ability to understand the nature of the act or that it waswrong, that individual is diverted into a special stream.

Thereafter, the court or a Review Board conducts a hearing to decide whether theperson should be kept in a secure institution, released on conditions, or unconditionally discharged. The emphasis is on achieving thetwin goals of protecting the public and treating the mentally ill offender fairly and appropriately. See Bouchard-Lebrun at para 53. [20] Subsection 16(1) has three elements. No person is criminally responsible for

an act committed • while suffering from a mental disorder, if • that mental disorder rendered the person incapable of appreciating the nature and quality of the person’s acts, or • that mental disorder rendered the person incapable of knowing that the acts were wrong. Therefore, I must answer three questions: Did Mr. Peterson suffer from a mental disorder when he committed the acts that formed thebasis of the charged offences? If so, did he lack the capacity to understand the nature and consequences of his acts because of that mentaldisorder?

Did he lack the capacity to know what he did was wrong because of that mental disorder? II. Did Mr. Peterson suffer from a “Mental Disorder”? A. Disease of the Mind [21]

Section 2 of the Criminal Code defines mental disorder as a “disease of the mind.” “Disease of the mind” is not defined by theCriminal Code but by common law. Whether a condition is characterized as a “disease of the mind” is a question of law decided by ajudge, but the determination is based on medical, psychiatric, or psychological evidence: R v Parks, (SCC), [1992] 2SCR 871, LaForest J at 898; R v Stone, (SCC), [1999] 2 SCR 290, Bastarache J at para 195; Bouchard-Lebrun atparas 61-62; R v SH, 2014 ONCA 303 at paras 75-76, 79.

What this means is that psychiatrists or psychologists, for example, mayconsider a condition to be a “disease of the mind,” but the law may not. Psychiatrists or psychologists may not consider a condition to bea “disease of mind,” but the law may. The judge must decide whether the accused’s mental condition qualifies at law as a “disease of themind.” 1. Cooper [22] Justice Dickson set out the fundamental approach to “disease of the mind” in Cooper at 1159. Disease of the mind includesany illness, disorder or abnormal condition that impairs a person’s mind and its functioning.

It does not include states that an accused hascreated, for example, by voluntarily drinking alcohol or taking drugs. It does not include temporary mental states, such as hysteria orconcussion: see Bouchard-Lebrun at paras 39 and 59; SH at para 80. 2. Stone [23] More recently, in Stone the Supreme Court described another approach to whether an accused was suffering from a “diseaseof the mind” at the time of his or her act.

This approach requires a holistic consideration of whether: • the conduct was “internally” caused • whether the accused poses a continuing risk of danger to others • whether policy factors count against classifying the accused’s condition as a “disease of the mind.” [24] The Cooper and Stone approaches are complementary.

Stone’s holistic approach extracts and focuses on the legal and policyelements of the Cooper approach, permitting development of the scope of “disease of the mind” in light of developments in science andnovel factual circumstances. [25] Justice LeBel directed at para 70 of Bouchard-Lebrun that “a court should use [the holistic] approach to determine whether amedically diagnosed disease of the mind constitutes a mental disorder in the legal sense.” [26] In Bouchard-Lebrun, Justice LeBel elaborated on the Stone factors. (

a) Internal Cause [27] At para 71 of Bouchard-Lebrun, Justice LeBel wrote that:

[71] The internal cause factor ... involves comparing the accused with a normal person. In [ Stone ], Bastarache J. noted that “the trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state as the accused claims to have done” (para. 206). The comparison between the circumstances of the accused and those of a normal person will be objective and may be based on the psychiatric evidence.

The more the psychiatric evidence suggests that a normal person, that is, a person suffering from no disease of the mind, is susceptible to such a state, the more justified the courts will be in finding that the trigger is external. Such a finding would exclude the condition of the accused from the scope of s. 16 .... (

b) Continuing Danger [ 28 ] An assessment of continuing danger does not depend on a prediction of violence. Rather, the assessment considers an accused’s psychiatric history and the likelihood of recurrence of the events or circumstances giving rise to violence, or the “triggers” for violence.

Justice Bastarache wrote in Stone that “[t]he greater the anticipated frequency of the trigger in the accused’s life, the greater the risk posed to the public:” at para 217; Bouchard-Lebrun at para 73 ; see R v Luedecke , 2008 ONCA 716 , Doherty JA at paras 91 and 111. [ 29 ] At para 74 of Bouchard-Lebrun , Justice LeBel wrote that: [74] .... danger will be recurring only if it is likely to arise again independently of the exercise of the will of the accused. The recurrence of danger is not a factor linked to voluntary behaviour by the accused.

This conclusion is consistent with the idea that the effect of the defence provided for in s. 16 Cr. C. is to exempt from criminal responsibility an accused whose actions are morally involuntary. The purpose of the defence of mental disorder is to ascertain whether the mental condition of the accused poses an inherent danger, that is, a danger that persists despite the will of the accused. As a corollary to this principle, a danger to public safety that might be voluntarily created by the accused in the future by consuming drugs would not be the result of a “mental disorder” for the purposes of s. 16 Cr. C. (

c) Policy Factors [ 30 ] Policy factors turn on the type of condition alleged to be a “disease of the mind” and whether, for example, symptomatic conduct could be easily feigned: Stone at paras 203-218 . Justice LeBel added in Bouchard-Lebrun at para 75 that: [75] .... The main policy consideration continues to be the need to protect society from the accused through the special procedure set out in

Part XX.1 of the Criminal Code . Thus, if the circumstances of a case suggest that a pre-existing condition of the accused does not require any particular treatment and is not a threat to others, the court should more easily hold that the accused was not suffering from a disease of the mind at the time of the alleged events. B. Evidence 1. Dr. Will’s Conclusions [ 31 ] Dr. Will’s opinion was that the following diagnoses apply to Mr.

Peterson (Will Report at p. 20): • schizophrenia, multiple episodes, currently in acute episode • cannabis use disorder, in sustained remission in a controlled environment • stimulant use disorder, in sustained remission in a controlled environment • queried - unspecified neurodevelopmental disorder. [ 32 ] Dr. Will wrote that: During his admission to AHE, Mr. Peterson exhibited signs of psychotic disorder.

Specifically, he expressed grandiose beliefs (e.g. that he was a police officer or a divinity); bizarre beliefs (i.e. that individuals are capable of communications in a manner similar to telepathy); and appeared to experience auditory hallucinations (e.g. overheard to respond to unseen stimuli; described to the undersigned perceiving “communications” from police officers). [ 33 ] Dr. Will concluded from a review of Mr. Peterson’s medical history that he has cannabis and methamphetamine (stimulant) use disorders. Previous assessments noted problematic uses of cannabis and stimulants. Although Mr.

Peterson did not use cannabis or stimulants in custody, those substance use disorders are present. [ 34 ] Dr. Will also noted that Mr. Peterson exhibited behavioural and cognitive rigidity and interpersonal communication and relationship deficits that seemed independent of his psychotic illness. However, Mr. Peterson declined to undergo neuropsychological assessment that would have assisted in determining the presence of a neurodevelopmental disorder. Hence, the presence of an unspecified neurodevelopmental disorder could only be queried. 2. Foundations for Dr. Will’s Conclusions (

a) Criminal History [ 35 ] Dr. Will referred to Mr. Peterson’s criminal record. He has one related conviction, an assault causing bodily harm conviction

entered March 4, 2022. Dr. Will recounted the circumstances described by Cst. Heavener in a Supplementary Occurrence Report. Cst.Heavener was not called as a witness in this stage of proceedings and had not testified to events in question earlier. Cst. Heavener’sdescription was not argued to be admissible through a hearsay exception. Dr. Will did not attach significant weight to Mr. Peterson’scriminal record and neither do I. (

b) Family and Social History [36] Dr. Will had a telephone conversation with Ms. Miller. In her testimony, Ms. Miller confirmed that her pregnancy with Mr.Peterson was uncomplicated. Mr. Peterson had not been exposed to drugs, alcohol, or medications while in utero. He achieveddevelopmental milestones in normal timeframes. [37] Ms. Miller testified that Mr. Peterson had been diagnosed with ADHD after he started school but he did not receivemedication for this. [38] When Mr. Peterson turned 15, he lived with his father in the United States for a year. By the time he returned to Alberta, hehad found drugs.

He began acting erratically. In 2020, Ms. Miller often observed “erratic behaviour” by Mr. Peterson. [39] Ms. Miller recalled that Mr. Peterson told her that “people” would kill him or hurt him. She said he believed he was a policeofficer. He started saying this in 2018 or 2019. This continued into 2020, before the incident involving Mr. Paradis. He referred to doingwhat he was told to do. He told her he had a badge number. [40] In 2020, Ms. Miller brought Mr. Peterson under the care of a doctor to help him get off drugs. (

c) Psychiatric History [41] Dr. Will referred to Mr. Peterson’s medical records (Will Report, p. 3). In my opinion, these records were admissible for thetruth of their contents as well as for the facts of Mr. Peterson’s utterances through the medical records exception to the hearsay rule, asset out in Ares v Venner, (SCC), [1970] SCR 608 and R v Monkhouse, 1987 ABCA 227. [42] In February 2019, Mr. Peterson had a psychiatric assessment at the Queen Elizabeth II Hospital in Grande Prairie. Dr. Daviladiagnosed Mr.

Peterson with stimulant use disorder, cannabis use disorder, and unspecified intellectual disability. [43] Mr. Peterson addressed this time frame when talking to Dr. Will. Mr. Peterson told Dr. Will that in late 2019 he heard voicestelling him he was a peace officer. [44] In late 2019 Mr. Peterson was held at Peace River Correctional Centre. He was assessed by Dr. Bhatia, a psychiatrist, throughtelehealth. Mr. Peterson’s recollection was that Dr. Bhatia told him he had “drug induced psychosis” and prescribed a medication thatmade the voices stop. After release, Mr.

Peterson quit taking the medication, the voices returned, and he returned to his belief that he wasa peace officer. [45] On September 5, 2020, Mr. Peterson was admitted to the Royal Alexandra Hospital in Edmonton after displaying “concerningbehaviour.” The emergency physician’s notes recorded that Mr. Peterson’s family called the RCMP because Mr. Peterson was “outside,shirtless, yelling.” The RCMP noted that Mr. Peterson had paranoid delusions of California gangs being after him. He was hearingvoices and felt depressed and frustrated. He admitted using meth and marijuana. The emergency physician considered Mr.

Peterson tohave been experiencing symptoms of psychosis induced by methamphetamine use. [46] From September 16 to November 5, 2020, Mr. Peterson was admitted to the Centennial Centre, Ponoka, for the treatment ofmental disorder. The records referred to Mr. Peterson having auditory hallucinations treated through medication that ceased during thelast week of hospitalization. His discharge diagnoses were crystal methamphetamine dependence and schizoaffective disorder. [47] Dr. Will observed that in Mr.

Peterson’s initial encounters with mental health professionals his symptoms were attributed tosubstance abuse. [48] Substance use likely did contribute to Mr. Peterson’s mental illness. [49] However, Dr. Will did not attribute Mr. Peterson’s symptoms solely to substance abuse. Mr. Peterson’s symptoms continuedduring his period of incarceration at AHE in particular, when he did not have access to illegal drugs. [50] Dr. Will observed that the timeline of Mr.

Peterson’s mental health difficulties was consistent with schizophrenia.Schizophrenia often emerges in the late teens and early 20s, as appears to have occurred in Mr. Peterson’s case. (

d) Fitness Assessment [51] Mr. Peterson was admitted to forensic psychiatry service under the care of Dr. Will from July 26 to September 1, 2021 for afitness assessment (Will Report p. 3). He expressed unusual beliefs, including that RCMP officers visiting his air cadet troop when hewas an adolescent offered to employ him, and a course offered by Norquest College he completed while in custody was equivalent to acourse taken by law students. He possessed the same degree of knowledge as a lawyer. He also averred that Martin’s Criminal Codeincluded a

section describing how the military can monitor an individual’s thoughts via the “electrons and neutrons in the orbs of yourbrain.” [52] The fitness report stated that Mr. Peterson’s discharge diagnosis was unspecified psychotic disorder, stimulant use disorder,and cannabis use disorder, with an unspecified neurodevelopmental disorder queried (Will Report p. 4). Mr. Peterson had refused toundergo a neuropsychological assessment. Dr. Will’s opinion was that Mr. Peterson was fit to stand trial. I declared Mr. Peterson fit to

stand trial on September 6, 2022, before commencing pre-trial motions. (

e) Substance Abuse History [ 53 ] Mr. Peterson told Dr. Will that at the time of alleged offences he was consuming cannabis 3-5 times weekly (Will Report p. 4). [ 54 ] He said that he had stopped using methamphetamine at the time of his arrest in Grande Prairie in 2019. He didn’t use it again until a single instance in December 2020. He believed this occurred in early December, not near the time of the incident involving Mr. Paradis. (

f) The Offence [ 55 ] Mr. Peterson recounted the circumstances of the offence to Dr. Will (Will Report p. 8). He said that early on December 21, 2020 he heard a voice telling him to attend the Edson RCMP station at 7 a.m. He left his residence well before 7 a.m. [ 56 ] At trial, in his cross-examination respecting this phase of the events of December 21, Mr. Peterson said “I am Her Majesty” and referred to himself as Jesus Christ. He said he wasn’t aware of “this” when growing up. On that early December morning he was on his way to the Detachment “for these kind of reasons.” [ 57 ] When he arrived in Edson, Mr.

Peterson stopped at the Aries Motel. Dr. Will stated that he was vague in explaining why he stopped there. He saw Mr. Paradis. After their initial interaction, Mr. Paradis went into his motel room and shut the door. Dr. Will wrote that: Mr. Peterson said he then perceived a voice, which he believed was “direct orders” to “get in there” and arrest Mr. Paradis. Mr. Peterson told her “I was under the influence that I was listening to a high-ranking officer and I assumed the proper thing to do was to arrest him.” [ 58 ] Mr. Peterson’s trial testimony was consistent with what Mr. Peterson told Dr. Will.

The following is my account of the relevant portions of Mr. Peterson’s testimony, from paras 150-152 of the trial decision: [150] Mr. Peterson testified that when he was across the street, he contacted an officer. He said he confirmed with an officer that the police were on their way. He did not remember who he talked to. The communication was by way of telecommunication, using electricity from the human body. This allowed him to communicate with the police without using a telephone. He said it was common for him to communicate in this way with officers. In cross-examination Mr.

Peterson said that there were officers listening to him right now. “I talk to them every day.” [151] Mr. Peterson said that “they authorized me to arrest him.” In cross-examination he said he got a direct order to go back and arrest Mr. Paradis. He went back across the street to do so. [152] Mr. Peterson intended to arrest Mr. Paradis for the offence of possession of a weapon for a purpose dangerous to the public peace under s. 88(1) of the Criminal Code . Mr. Peterson said that Mr. Paradis had performed an illegal activity and was a danger to the public. [ 59 ] Mr. Peterson told Dr.

Will that he complied with the direction “to arrest the guy for threatening me with a machete.” Mr. Peterson told Dr. Will that he did not use excessive force during the arrest. He said “when my life is on the line, it’s whatever it takes for my life to not be at risk ... any force necessary.” [ 60 ] Dr. Will referred to two features of Mr. Paradis’ account of the attack by Mr. Peterson. First, Mr. Paradis described his assailant as “not making any sense. He was obviously quite high.” Second, his assailant was “nonchalant” when the police arrived. [ 61 ] Mr.

Peterson showed some insight into his frame of mind, telling Dr. Will at one point “I’m so frustrated because I was so under the influence this was a real thing, but trying to pursue it has ruined my life.” (

g) Post-Arrest Presentation [ 62 ] Mr. Peterson’s post-arrest presentation, which was referred to by Dr. Will, is described in the trial decision at paras 103-106: [103] At this time, Mr. Peterson was in the phone room. He told Cst. Heavener that he did not want to talk to a lawyer. Cst. Heavener explained Mr. Peterson’s charges to him and explained how he could contact a lawyer. Mr. Peterson was left in the phone room to contact a lawyer for about 45 minutes. Cst. Heavener did not believe that Mr. Peterson contacted a lawyer. [104] Cst. Heavener told Cpl. Carling Grasdal that Mr.

Peterson was not making a call to a lawyer. Cpl. Grasdal went to the phone room, opened the door, and asked him if he knew what he was under arrest for, if he knew the seriousness of his charges. She testified that he didn’t appear to understand. She told him he was under arrest for attempted murder and possession for the purpose of trafficking and the charges were serious. She told him he needed a lawyer. She explained to him how to dial out to talk to a lawyer. [105] Cpl. Jody Mattinson and Cst. Aldrin Merlin also assisted Mr. Peterson with talking to a lawyer. Cpl. Mattinson, who was monitoring Cst.

Merlin’s efforts, testified that Cst. Merlin was struggling to get Mr. Peterson to use the phone. Mr. Peterson was in the phone room, just staring at the wall, not calling. [106] Cpl. Mattinson testified that Mr. Peterson “seemed spacey.” He was making no eye contact. He stared into space. He did not attempt to make contact with a lawyer but sat facing the wall. Cpl. Mattinson offered to dial a lawyer for Mr. Peterson. He told Mr. Peterson that he needed to talk to a lawyer. Cpl. Mattinson said that Mr. Peterson did not grasp the gravity of the circumstances he was in. Cpl. Grasdal also testified that Mr.

Peterson did not appear to understand the seriousness of the circumstances he was facing. She

testified that he “looked at us blankly.” (

h) Presentation at Trial [63] By way of corroboration and as further evidence of Mr. Peterson’s delusions, in the course of cross-examination onSeptember 27, 2022, Mr. Peterson maintained he was an RCMP officer four times, and denied that it was not true that he was not amember of the RCMP. He referred to being Jesus Christ. He described communication by telecommunication with members of theRCMP, accomplished by means of the electricity of the human body. On September 28, he made comments on “manifestation,” and itsreflection on the ecosystem and everything in the economy. Mr.

Peterson referred again to the electricity of the human body and howevery activity, every stressful or happy experience affects everything from our weather to other human beings. He said “I think about it,focus on it, it causes the manifestation.” In submissions on September 28, he identified himself as an RCMP officer and identified hisregimental number. He identified himself with Her Majesty. [64] In exhibit 8, filed as Mr. Peterson’s written submissions, he referred to himself on multiple pages as a peace officer. (

i) Presentation at AHE [65] Dr. Will’s comments about Mr. Peterson’s conduct and communications while at AHE are based on her own observationsand those of staff. I consider the staff observations, recorded in clinical notes, to be admissible for the truth of their contents and for thefacts of Mr. Peterson’s utterances through the medical records hearsay exception. [66] Dr. Will observed that Mr. Peterson struggled to adjust to the hospital environment (Will Report p. 6). He exhibited rigid anddisruptive behaviours. He seemed incapable of negotiating conflicts with other patients independently.

Staff intervention was required.He seldom socialized with other patients. He seemed to have significant deficits in interpersonal skills. He had little appreciation of non-verbal communication and was deficient in following the normal give-and-take pattern of conversation. He refused to participate in aneuropsychological examination. [67] Mr. Peterson shared grandiose thought content, respecting himself as a type of divinity or police officer. He appeared at timesto be in conversation with other individuals when alone in his room. [68] He told Dr. Will that he is a police officer or peace officer.

His training began when he was 13, in air cadets. At the time ofthe offences, he was working for Edson RCMP. He received regular briefings through telecommunication, which he likened to telepathy.It allowed individuals to communicate without speaking. [69] Dr. Will stated that it was evident throughout his admission to AHE that Mr. Peterson remained under the impression that hewas a police officer. C. Did the evidence support the finding that Mr. Peterson did not suffer from a“disease of the mind”? 1. Malingering [70] Dr. Will was asked whether Mr.

Peterson was “malingering,” whether he had fabricated his account or was feigning mentaldisorder. [71] In her view, Mr. Peterson was not malingering. [72] His symptoms and reported beliefs have been consistent for years. [73] Had he been malingering, he would have been expected to have been more open and forthcoming with Dr. Will, his assessor,who was in a position to advance his interests. Instead, he was guarded with her and open and forthcoming with other staff. [74] I recognize that I cannot delegate credibility finding to an expert. In R v Béland, (SCC), [1987] 2 SCR 398.

Icome to the same conclusion, though, as Dr. Will. Mr. Peterson was not malingering. His accounts of his disorder have indeed beenconsistent for years. He has been hospitalized and medicated over those years. This treatment could not, on the evidence, be consideredto advance some collateral interests of Mr. Peterson. Mr. Peterson made the same sort of claims in trial as he made to Dr. Will. Hisclaims did not serve his interest in trial, as those claims could undermine his credibility. I had the advantage of observing Mr. Peterson’stestimony. In my opinion, he was sincere in his claims.

He was insistent that he was telling us the truth about his status. I find that Mr.Peterson accurately testified to what he experienced. That, of course, does not mean his experience matched reality. 2. Causation by Drugs [75] The “internal cause” factor rules out as mental disorder conditions an accused created by drinking alcohol or taking drugs. IfMr. Peterson’s mental condition had been the result of the voluntary consumption of illegal drugs, it would follow that, in law, hisconduct was not caused by a disease of the mind. Justice Lebel wrote as follows in Bouchard-Lebrun at para 85: [85] ….

A malfunctioning of the mind that results exclusively from self-induced intoxication cannot be considered a disease of themind in the legal sense, since it is not a product of the individual’s inherent psychological makeup. This is true even though medicalscience may tend to consider such conditions to be diseases of the mind. In circumstances like those of the case at bar, toxic psychosisseems to be nothing more than a symptom, albeit an extreme one of the accused person’s state of self-induced intoxication. Such a statecannot justify exempting an accused from criminal responsibility under s. 16 Cr. C.

[ 76 ] Mr. Peterson did report having used methamphetamine. Dr. Will confirmed that methamphetamine use can cause psychotic symptoms. However, Dr. Will pointed out that Mr. Peterson had been in custody since December 2020. It is likely that he has not had access to methamphetamine during that time. His symptoms have persisted. The most likely cause of his symptoms, then, is schizophrenia. [ 77 ] Dr. Will acknowledged that illicit drugs can make their way into AHE. However, if Mr. Peterson had access to illicit drugs, it would have been likely that his conduct would have markedly changed. Mr.

Peterson’s symptoms and general conduct, though, did not change. The consistency of his behaviour tended to show that he has not had access to contraband drugs. [ 78 ] Moreover, Mr. Peterson did not get on well with other patients. They would not be likely to share or otherwise provide him with illicit drugs. [ 79 ] Finally, my understanding was that Mr. Peterson had done a urine test while at AHE and he tested clean. [ 80 ] Mr. Peterson’s mental condition was not caused by the ingestion of drugs. D. Did Mr. Peterson suffer from a “disease of the mind”? [ 81 ] Dr. Will concluded that Mr.

Peterson suffered from schizophrenia to the point of having psychotic breaks with reality. I agree with her conclusion and reasoning. [ 82 ] Mr. Peterson exhibited grandiose beliefs, that he was a peace officer or police officer, a divinity, Jesus Christ, or Her Majesty. [ 83 ] He exhibited bizarre beliefs, particularly that individuals can communicate by what he referred to as telecommunication involving the electricity of the body. [ 84 ] He experienced auditory hallucinations. He believed he was contacted by and received orders from police officers. [ 85 ] Mr.

Peterson began exhibiting these symptoms in 2019, at an age when schizophrenia often manifests. His symptoms – his beliefs and auditory hallucinations – have persisted in consistent form since at least 2019 through his trial to his interviews with Dr. Will. [ 86 ] I find as a matter of fact that Mr. Peterson suffers from a disease of the mind. [ 87 ] Further, I find as a matter of law that the condition Mr. Peterson suffered from was a disease of the mind. [ 88 ] His condition is relatively long-standing, not transitory. It is an “internal” condition having its source in Mr.

Peterson’s psychological make-up or in neurological pathology. On the evidence, the cause of Mr. Peterson’s conduct was not the ingestion of drugs or alcohol. Methamphetamine is likely to have contributed in the past to Mr. Peterson’s disorder but that disorder now has an independent causal role in Mr. Peterson’s life. [ 89 ] The confrontation between Mr. Paradis and Mr. Peterson very early in the morning in the motel parking lot was the trigger event. The event ended when Mr. Paradis retreated to his room and Mr. Peterson left the motel premises.

A normal person would not have returned and lurked near the room, broken down Mr. Paradis’ door, and beaten Mr. Paradis nearly to death. [ 90 ] In my view, as the Crown argued, a trigger event would likely recur frequently. Minor interpersonal conflicts and perceived instances of apparent illegal or suspicious activity are not rare, depending on location and the time of day or night. Events that could set Mr. Peterson off as did his interaction with Mr. Paradis would abound in Mr. Peterson’s life. Mr.

Peterson, then, poses a continuing danger of harming others through pathological escalation of observations or interactions. Mr. Peterson is a threat to others. [ 91 ] Dr. Will acknowledged that schizophrenia can be managed, as Defence counsel properly confirmed. The right medication at the right dose will resolve symptoms. But medication doesn’t take itself. It must be taken. [ 92 ] Mr. Peterson has a history of coming off his medications. Part of his mental illness is resistance to advice and instructions about medications. Even at AHE, Dr. Will reported, Mr.

Peterson was reluctant to take his medications, or to take medications at their therapeutic dose. The grandiosity inherent in Mr. Peterson’s condition inclines him not to follow other’s directions. [ 93 ] I find that it is not likely that Mr. Peterson would maintain himself on a course of medication for even a short time, let alone a medium or long time. [ 94 ] Moreover, a mental condition is not excluded as a disease of the mind just because the condition is manageable through medication.

Bouchard-Lebrun speaks at para 75 of a condition that “does not require any particular treatment.” Schizophrenia of the intensity suffered by Mr. Peterson does require particular treatment – the right drug at the right dose, taken consistently. The possibility of management does not entail that a condition does not present a continuing danger. [ 95 ] I find that Mr. Peterson poses a continuing danger to others. [ 96 ] I discern no policy reason for not recognizing Mr. Peterson’s condition as a disease of the mind. [ 97 ] I therefore find that Mr.

Peterson suffers from a disease of the mind and a mental disorder for the purposes of s. 16(1) of the Criminal Code . E. Did Mr. Peterson suffer from a disease of the mind at the time of the attack on Mr. Paradis?

[98] Mr. Peterson had come to town, walking about 8 kilometres on a December morning, to visit the Detachment. His reasons forcoming to town were derived from his delusions. [99] Mr. Peterson testified to receiving orders by “telecommunication” to effect Mr. Paradis’ arrest after Mr. Paradis had retreatedto his motel room. Mr. Peterson testified to considering himself at all material times to be a peace officer or police officer. [100] Mr. Paradis observed that Mr. Peterson’s behaviour was bizarre – he thought Mr. Peterson must have been high. [101] Mr. Paradis and the attending officers observed Mr.

Peterson’s calm demeanour when the officers arrived. He believed that hehad done nothing wrong. He sought to turn over evidence to the attending officers. [102] Mr. Peterson’s deportment after the event tended to support his unnatural prior conduct. He was “spacey,” disconnected fromthe reality of his offence and the jeopardy he faced. [103] I therefore find, on the balance of probabilities, that Mr. Peterson suffered from a “disease of the mind” constituting a mentaldisorder at the time of the attack on Mr.

Paradis. [104] The questions then are whether his mental disorder rendered him incapable of appreciating the nature and quality of his acts orof knowing his acts were wrong. IV. Effects of the Mental Disorder [105] Dr. Will considered the two types of incapacity together on the evidence. That strikes me as an appropriate approach. I’llreview each type of incapacity before addressing the evidence. A. Incapacity to Appreciate the Nature and Quality of His Acts [106] Under s. 16(1), “[n]o person is criminally responsible for

an act committed … while suffering from a mental disorder thatrendered the person incapable of appreciating the nature and quality of the act ….” The branch of s. 16(1) dealing with incapacity toappreciate the nature and quality of the act concerns more than just knowledge of the physical quality of the act. “Knowledge” of an actwould require only a knowledge of the physical act that one was doing. “Appreciating”

an act requires an understanding of the nature ofwhat is done by the physical act and an understanding of the consequences of the physical act. Justice Dickson contrasted “knowledge”and “appreciation” of

an act as follows in Cooper at 1161: “To ‘know’ the nature and quality of

an act may mean merely to be aware ofthe physical act, while to ‘appreciate’ may involve estimation and understanding of the consequences of that act.” Justice Dicksoncontinued at 1162-3: The test proposed in the McRuer Report, which I would adopt, (save for deletion of the word “fully” in the fourth line) is this: The true test necessarily is, was the accused person at the very time of the offence—not before or after, but at the moment of the offence—by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the natural consequences that would flowfrom it?

In other words was the accused person, by reason of disease of the mind, deprived of the mental capacity to foresee and measurethe consequences of the act? (at p. 13) The legally relevant time is the time when the act was committed …. …. I accept the view that the first branch of the test, in employing the word “appreciates”, imports an additional requirement to mereknowledge of the physical quality of the act. The requirement, unique to Canada, is that of perception, an ability to perceive theconsequences, impact, and results of a physical act.

An accused may be aware of the physical character of his action (i.e., in choking)without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being …. B. Incapacity to Know His Acts were Wrong [107] Under s. 16(1), “[n]o person is criminally responsible for

an act committed … while suffering from a mental disorder thatrendered the person incapable of … knowing that it was wrong.” The second branch of s. 16(1) exempts an accused from criminalresponsibility if at the time of the act the accused was suffering from a mental disorder that rendered him or her incapable of knowingthat what was done was wrong. [108] If “wrong” meant only “legally wrong,” Mr.

Peterson would be criminally responsible if I found that it were likely that he knewor was capable of knowing that what he did violated the law, regardless of any delusions and confusion that otherwise beset him. [109] However, the Supreme Court has determined that “wrong” means morally wrong, not legally wrong. A person cannot beconvicted if that person is only capable of knowing that his or her act violated the law. An accused may know that

an act is legallywrong, but because of his or her mental disorder, may be incapable of knowing that the act was morally wrong. In Chaulk, Chief JusticeLamer confirmed that Justice Dickson’s dissent in R v. Schwartz, (SCC), [1977] 1 SCR 673 represented the lawconcerning the second branch of s. 16(1) (s. 16(2), in the earlier legislation). Chief Justice Lamer wrote as follows in Chaulk at 1351: More fundamentally, Dickson J. concluded that a reading of s. 16(2) as a whole leads to the conclusion that “wrong” must mean contraryto the ordinary moral standards of reasonable men and women. The object of s. 16(2) is to protect individuals who do not have thecapacity to judge whether

an act is wrong; the inquiry as to the capacity of an accused to reason must not end simply because it isdetermined that the accused knew that the act was a crime.

[110] The Chief Justice continued at 1354-5: [I]t is plain to me that the term “wrong” as used in s. 16(2) must mean more than simply “legally wrong”. In considering the capacity ofa person to know whether

an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accusedknew that the act was contrary to the formal law. A person may well be aware that

an act is contrary to law but, by reason of … diseaseof the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standardsof society. This would be the case, for example, if the person suffered from a disease of the mind to such a degree as to know that it islegally wrong to kill but, as described by Dickson J. in Schwartz, kills “in the belief that it is in response to a divine order and thereforenot morally wrong” (p. 678). [111] “Morally wrong” means morally wrong from the perspective of society or the perspective of reasonable people.

The test is notwhether the accused was capable of knowing only that an end or objective served by his or her act was morally desirable. An accusedmay consider

an act to be a moral act and may feel morally compelled to do the act, but because of his or her mental disorder the personmay be incapable of knowing that the act is not a moral act by reasonable social standards. That is, the accused may believe that he orshe is doing the morally right thing by doing

an act, but because of mental disorder the accused is not capable of knowing whatreasonable people consider to be right and wrong. [112] Finally, an accused may understand that, generally, committing

an act is wrong, but because of mental disorder may not becapable of knowing that killing a particular person in particular circumstances is wrong, according to reasonable moral standards. To lackcapacity to know

an act is wrong is to lack capacity to know that the particular act is wrong. Thus Justice McLachlin wrote in R vOommen, (SCC), [1994] 2 SCR 507 at 516 that A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know rightfrom wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess theintellectual ability to know right from wrong in an abstract sense.

But he or she must also possess the ability to apply that knowledge in arational way to the alleged criminal act. [113] In Schwartz, Justice Dickson provided very useful guidance for approaching the question of whether an accused was capable ofknowing that what he or she did was wrong. The meaning of the term “wrong” and the accused’s understanding of “wrong” should notbe overemphasized. The task is to assess whether the mental disorder resulted in the lack of capacity to distinguish right from wrong inthe ordinary moral way.

The task is to assess the accused’s ability to distinguish right from wrong, given the interference with thoughtcaused by mental disorder. Justice Dickson wrote as follows at 679: [T]he wording of s. 16(2) makes it clear that the

section is primarily concerned with mental disease and incapacity resulting therefrom. Itis the thinking process of the accused, as opposed to his actual knowledge of wrongness, that should be the focus of inquiry in thedefence of insanity. The question is not whether the accused knew that the act was wrong but whether he was capable of knowing it waswrong. Was he capable of comprehending that which militated to make the act wrong? Mr.

Justice Stephen in History of the CriminalLaw of England, vol. 2 (1883) at p. 163 poses this question: “Was he deprived by disease affecting the mind of the power of passing arational judgment on the moral character of the act which he meant to do?” In applying s. 16(2), one must delve into the thought processof the accused, coherence, logic, rationality, rather than merely his knowledge of the wrongness of the particular act.

Has disease of themind so affected the capacity of the accused to make a moral choice that he is unable to discern between what is right and what iswrong? (emphasis added) [114] Justice Dickson’s approach is consistent with Justice McLachlin’s comments in Oomen at 518: 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 makea rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental dysfunctions;… these include … delusions which make the accused perceive

an act which is wrong as right or justifiable, and a disordered conditionof the mind which deprives the accused of the ability to rationally evaluate what he is doing. C. Evidence 1. Appreciate the Nature and Quality of His Acts [115] From one perspective, Mr. Peterson knew what he was doing. He was effecting an arrest. To that end, he broke down Mr.Paradis’ door, beat him, and bound him. He did exactly what he set out to do. [116] Dr. Will, though, looked to the severity of Mr. Paradis’ injuries. Mr. Peterson did not believe he did anything wrong. Hewelcomed the responding officers.

He tried to give them evidence he collected, while Mr. Paradis lay bound and bloody on the floor.The consequences of his actions made no impression on Mr. Peterson. He did not “appreciate” what he had done to Mr. Paradis. Mr.Peterson’s testimony minimized the extent of the injuries suffered by Mr. Paradis and the degree of brutality required to cause thoseinjuries. [117] There was reference in Dr. Will’s report to Cst. Heavener’s opinion that Mr. Peterson had attempted to clean the room up afterthe attack on Mr. Paradis.

Clothing was “piled in a manner inconsistent with the level of violence displayed in the assault.” According tomy notes, Cst. Heavener did not repeat this claim at trial. But even if that were Cst. Heavener’s evidence at trial, I share Dr. Will’s viewthat Cst. Heavener’s opinion is not the most likely inference. Rather, the most likely inference was that Mr. Paradis had folded hisclothes himself in preparation for leaving the motel. Mr. Peterson admitted nothing about folding any clothing.

It is true that if Mr.Peterson had tried to clean up the crime scene, that would be evidence supporting the inference that Mr. Peterson understood fully whathe had done. However, I do not find that he tried to clean up the crime scene. [118] I find on a balance of probabilities that because of his mental disorder Mr. Peterson was incapable of appreciating the natureand quality of his acts in attacking Mr. Paradis.

2. Knowledge that his Acts were Wrong [ 119 ] A stronger determination of incapacity concerns Mr. Peterson’s knowledge of the wrongfulness of his acts. [ 120 ] His attack was initiated by a hallucinated order from a police officer. Mr. Peterson showed no ability or inclination to doubt what he was told to do. He was a police officer, he received an order from a superior officer, he had no choice but to carry out what he was told to do. He was duty-bound to arrest Mr. Paradis. He could not ignore what he had observed. [ 121 ] Mr. Peterson conceptualized his attack as being legally justified as a citizen’s arrest.

Set aside his errors about when a citizen’s arrest is legal. As indicated respecting the “appreciate” branch, because Mr. Peterson believed he was right to do what he did, he recognized no limit on the injury he could cause while remaining in the right. Dr. Will put this point by observing that no reasonable person could have believed that causing the degree of injury inflicted by Mr. Peterson could possibly be regarded as falling within a legitimate use of force. Mr. Peterson could not see the limit of moral and legal action. He could not know that what he was doing was wrong. [ 122 ] Mr.

Peterson was capable of knowing that a citizen’s arrest could permit the legal use of force, a use of force that was not wrong. Mr. Peterson, though, could not know what conditions had to be met for a citizen’s arrest to be lawful. He believed that he already had full legal knowledge when he did not. His delusions prevented him from learning law, even reading and understanding what the Criminal Code actually said, because he believed he already knew the law.

His delusions made him incapable of determining the conditions in which a citizen’s arrest might truly be right. [ 123 ] And, as Oomen teaches, the capacity to know that at a general level there are uses of force that are not wrongful, that are permitted by the law, is not equivalent to the capacity to know that a particular use of force is permitted by the law and not morally wrongful. Knowledge that citizen’s arrest exists does not entail knowledge that a particular arrest was lawful and not morally wrongful. Because of his delusions, Mr.

Peterson was unable to distinguish morally correct from morally incorrect uses of force. He only knew he received an order and he had to obey. [ 124 ] I therefore find on a balance of probabilities that by reason of his mental disorder, Mr. Peterson was incapable of knowing that his acts in attacking Mr. Paradis were wrong. V. Verdict [ 125 ] I found that Mr.

Peterson committed the acts that formed the basis of the offences charged against him - aggravated assault, unlawful confinement, and breaking and entering a place that was a dwelling-house with intent to commit an indictable offence therein - but I find that he is not criminally responsible on account of mental disorder. [ 126 ] I agree with the Crown that this matter should be referred to the Review Board for disposition. I have taken into account the safety of the public, Mr. Peterson’s mental condition, and the prospects of reintegration of Mr. Peterson into society and his other needs. The nature of Mr.

Peterson’s mental disorder, the acts he committed, and the treatment and the management of his condition raise issues that, in my opinion, exceed judicial competence and the record before me. I shall not hold a disposition hearing. [ 127 ] Therefore, pursuant to s. 672.47(1) and (2) the Review Board that has jurisdiction in relation to this matter shall hold a hearing and make a disposition as soon as is practicable but not later than 90 days from today. [ 128 ] Under s. 672.45(1.1) I direct that, in original or copied form, a transcript of the court proceedings respecting Mr.

Peterson, any other document or information related to the proceedings, and all exhibits filed with it, be sent without delay to the Review Board. [ 129 ] I confirm under s. 672.46(1) that Mr. Peterson shall remain detained until the Review Board makes a disposition. [ 130 ] I order that Mr. Peterson shall serve his detention at Alberta Hospital Edmonton. Heard on the 20 th and 21 st day of March, 2023. Delivered at the Town of Hinton, Alberta on the 21 st day of March, 2023. Signed at the Town of Hinton, Alberta this 27 th day of March, 2023. W.N. Renke J.C.K.B.A. Appearances:

Christine Palmer Kerri Malcom Crown Prosecutors’ Office, Hinton for the Crown Kingsley Okosun Kingsley Law For the Accused Kaj Jensen Barrister & Solicitor Amicus Curiae