R. v. Q.M, 2022 NUCJ 6

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Q.M, 2022 NUCJ 6 Date: 20220203 Docket: 23-21-086 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Q.M __________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): P. Plourde Counsel (Accused): A. Landry Location Heard: Iqaluit, Nunavut Date Heard: January 24, 2022 Matters: Finding of not criminally responsible because of mental disorder in accordance with

Section 672.34 of the Criminal Code , RSC 1985, c C-46 . REASONS FOR VERDICT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] Q.M has pleaded guilty to a charge of attempted murder. The facts supporting the plea are set out in an Agreed Statement of Facts.

Based on the Agreed Statement of Facts I entered a finding of guilt for the offence. [ 2 ] Counsel requested an Order pursuant to s. 672.11 of the Criminal Code directing that the accused undergo a psychiatric assessment to assist in determining whether he was suffering from a mental disorder at the time of the offence.

Based on information set out in the Agreed Statement of Facts I was satisfied that there were reasonable grounds to believe that an assessment was necessary to determine if the accused was exempt from criminal responsibility because he was suffering from a mental disorder at the time of the commission of the offence (s.672.11(b)) and an order for an assessment was made. II. FACTS [ 3 ] The accused is the uncle of the four year old victim. They are part of a close family and live in the same community.

On March 23, 2021, the victim was walking on the street when the accused approached him, picked him up and lifted him up into the air as high as possible. The accused is over 6 feet tall. The accused then slammed the victim head first into the ground. He did this twice. [ 4 ] The mother of the victim was inside a nearby home and witnessed the incident. By the time she was able to reach the victim he was already on the ground, unconscious. The accused walked away without saying anything. [ 5 ] Someone called the police. When the police arrived, the victim was lying on the ground, unconscious and unresponsive.

He had a lump the size of a baseball on the right side of his head. He was taken to the nursing station. [ 6 ] The accused was arrested and taken into custody. [ 7 ] The victim was assessed at the nursing station and his chances of survival were considered to be slim. He had severe head trauma

and a brain bleed. He was medevac’d to Edmonton where he underwent immediate surgery lasting 12 hours. He had inhaled stomach contents, affecting his lungs, and was bleeding from the nose. He had a depressed skull fracture which was pushing against his brain. Half of his brain was severely damaged and had to be removed. [ 8 ] Following surgery his condition slowly improved. By March 28th his chance of survival was at 60%. Nonetheless, he was still on life support.

Over the course of the next few weeks his condition continued to improve and he was taken off life support. [ 9 ] Although the victim was expected to remain in a rehabilitation centre for at least one year, his recovery progressed much better than expected and some ten months after the offence he is back home living with his family. Nonetheless, he continues to face a future with limitations and medical interventions.

It is not possible to say whether he will ever make a full recovery. [ 10 ] Following his arrest, the accused provided a statement to the police. [ 11 ] The statement shed light on his state of mind. He stated that the night before the offence he had received a signal from God and was sent on a mission to kill the victim because the victim was the son of Satan.

God told the accused that he had to kill the victim. [ 12 ] The following morning the accused saw the victim on the street and knew that he had to kill him, that he had to kill him in the open, and that the victim had to be a “sacrificial lamb.” Killing the victim was not wrong because he was told to do so by God, the victim is the son of Satan, and he (the accused) was on a mission to rid the world of sin. Essentially, he described himself as being in a psychotic state. [ 13 ] The accused has remained in custody since his arrest.

He continued to show psychotic symptoms, largely of a religious nature, while in custody at the Baffin Correctional Centre until prescribed anti-psychotic medication more than a month after his arrest. During his incarceration he has spent time at the Qikiqtani General Hospital, and Ontario Shores Centre for Mental Health Services. He has responded well to the anti-psychotic medication. III. POSITIONS OF THE PARTIES [ 14 ] This is a Crown application to have the offender declared not criminally responsible.

Accordingly, the Crown bears the persuasive burden, the standard of which is the balance of probabilities. [ 15 ] The Defence however supports the Crowns application and also seeks to have the accused declared not criminally responsible. IV. WHAT DOES A FINDING OF NOT CRIMINALLY RESPONSIBLE MEAN [ 16 ] At the outset it is important to discuss what a finding of not criminally responsible means. [ 17 ] The criminal law does not punish those who do not act voluntarily. In a criminal case the Crown must prove both the actus reus (the guilty act) of the offence and the mens rea (guilty mind) of the offence.

A person who hits someone but does so because of an uncontrollable medical condition previously unknown to the accused will not be convicted of assault, because he did not act voluntarily. In the same way, a person who is suffering from a mental disorder that renders him incapable of deciding whether

an act is morally right or wrong and therefore is deprived of the ability to rationally evaluate and choose how to act, is not acting voluntarily and will not be held criminally responsible. [ 18 ] This is not to say that the law disregards the safety of the public. A finding of not criminally responsible is not an acquittal. A finding of not criminally responsible places the accused under the jurisdiction of the Nunavut Review Board, which will assess the level of threat posed by the accused and take actions to control the threat and provide the accused with appropriate care. This is an ongoing process, with regular reviews of the accused’s progress.

[ 19 ] In this way a balance is achieved between ensuring that those who are not criminally responsible are not dealt with through the criminal justice system with its resulting stigma and limited treatment options and ensuring that the public is protected. V. THE LAW [ 20 ] The Criminal Code states: 16.

(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

(2) Every person is presumed to not suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. [ 21 ] Mental disorder is defined as a disease of the mind ( s.2 , Criminal Code ). [ 22 ]

Section 16 provides a 2 part test: 1. Was the offender suffering from a mental disorder at the time of the offence? 2. If the answer to #1 is yes, did the mental disorder render the offender:

a) incapable of appreciating the nature and quality of the act; or

b) incapable of knowing that the act was wrong. [ 23 ] The court had the benefit of a psychological assessment prepared by Dr. Klassen, who provided expert evidence in the area of forensic psychiatry. In preparing his report Dr. Klassen had available to him: - the Information; - the Agreed Statement of Facts (including the criminal record of the accused); - statement given by the accused; - hospital records from Qikiqtani General Hospital; - hospital records from Ontario Shores Mental Health Services; - information from interviewing the accused’s sister. VI. ANALYSIS A. Was The Accused Suffering From A Mental Disorder:

[ 24 ] The first step in the analysis is to determine whether the accused was suffering from a mental disorder at the time of the offence. This requires an assessment of the reliability of the information used to make the determination. [ 25 ] The diagnosis in this matter depends to some extent on self-reporting by the accused.

Understandably there may be concerns about relying on such information as an accused may be motivated to misrepresent or overstate symptoms. [ 26 ] In determining the veracity of the information provided by the accused it is useful to consider collateral sources of information and whether they corroborate information provided by the accused. [ 27 ] In this matter there are two particularly compelling sources of collateral information. [ 28 ] The first is that in the months leading up to the offence, the accused’s boss was so concerned about the accused’s bizarre behaviour that he went to the RCMP with his concerns.

The concerns were taken up with staff at the Health Centre, who went to see the accused but did not observe any symptoms. [ 29 ] The accused’s sister was interviewed by Dr. Klassen. She reported that in the months leading up the offence the accused began acting strangely. He was agitated and could not sleep. He was making strange comments, mostly of a religious nature. He had a good work history and had been a good provider to the extended family but he was now without a job and was isolating himself.

The change in behaviour described by the sister is a commonly observed pattern in cases of psychosis, the only atypical aspect being the late onset of the psychosis given the age of the accused. [ 30 ] Dr. Klassen testified that during his interviews the accused presented as open and forthright. The information received from the accused was consistent with that provided in reports from the hospitals and the jails. He did not present as a malingerer. [ 31 ] Dr. Klassen considered whether the psychosis could be substance induced. The accused has a history of alcohol abuse.

The accused reported that he quit drinking in early 2020. He also has a history of cannabis use although he denies it has been a problem for him. He reported that his last use of cannabis was the month prior to the offence. He denied using cannabis the day before or the day of the offence. [ 32 ] The accused’s sister expressed concern that the accused may have been using more intense forms of cannabis, such as shatter, in the time leading up to the offence, but there is not any reliable evidence to support this. [ 33 ] Dr.

Klassen opines that it is highly unlikely that the accused’s psychosis was substance induced because the accused had been using cannabis for many years, without any such symptoms. Further, if the psychosis was substance induced one would expect the symptoms to diminish very rapidly upon being deprived of the substance. On the contrary, the accused continued to experience psychotic symptoms following his incarceration up until he was placed on anti-psychotic medication. [ 34 ] For these reasons, Dr.

Klassen is highly confident that the psychosis was not substance induced. [ 35 ] It is possible that an underlying psychosis might have been exacerbated by cannabis use, particularly a highly concentrated form of cannabis, however the self report of the accused suggests there was no such cannabis use, nor, as indicated previously, is there any evidence to support such a conclusion. [ 36 ] Dr. Klassen concludes that the accused was suffering from a psychosis at the time of the offence and that the psychosis qualifies as a mental disorder for the purposes of s.16 of the Criminal Code .

The cause of the psychosis may be the onset of a primary psychotic illness or it may be a mood disorder with psychotic features. Determining a precise diagnosis for the psychosis requires further time and treatment. Determining the cause is important because it impacts risk factors for recurrences. However, a precise diagnosis for the cause

of the psychosis is not necessary for determining whether or not the accused has a mental disorder. [37] I accept Dr. Klassen’s conclusions regarding the existence of a mental disorder and I find that the accused was suffering from amental disorder at the time of the offence. B. Impact of the Mental Disorder: [38] I must now consider the second branch of the test under s.16 of the Criminal Code: 2. did the mental disorder render the accused;

a) incapable of appreciating the nature and quality of the act; or

b) incapable of knowing that the act was wrong. [39] It is not sufficient that the accused suffered from a mental disorder at the time of the offence. The mental disorder must have hadan impact on the accused, rendering him incapable of appreciating either the nature and quality of the act or knowing that the act waswrong. C. Was the Accused Incapable of Appreciating the Nature and Quality of the Act [40] The incapacity required by this provision is an incapacity to appreciate the physical consequences of the act R. v. Abbey SCC; R. v. Chaulk, SCC.

That incapacity must come about because of the mental disorder. [41] The accused, in his statement to the police, clearly stated that in committing the act he intended to kill the victim. Not only did heunderstand and appreciate the nature and quality of the act in the sense that he appreciated the physical consequences to the victim, hespecially intended those consequences. [42] I find that the accused was not incapable of appreciating the nature and quality of the act. D.

Was the Accused Incapable of Knowing the Act was Wrong [43] I must consider whether the accused was rendered incapable of knowing that the act was wrong. [44] The test to be applied in considering this branch of s.16 is whether the accused was incapable of knowing that the act was wrong,when judged against societal standards. [45] The subjective belief of the accused that the act was morally justified is not sufficient if the accused was capable of knowing that,

despite his own belief, society would find the act morally wrong. [ 46 ] It may also be that the accused does not have a subjectively held belief regarding the justifiability of the act but is incapable of measuring his actions against societal standards. The question to be asked is whether the mental disorder deprived the accused of the capacity to rationally decide whether the act was wrong and, therefore, was unable to make a rational choice about whether to do it ( R. v.

Oommen CanLii 101 1994 SCC). [ 47 ] The evidence is that the accused thought that killing the victim was a good thing and that he was doing not only what God wanted, but what society would have approved of. [ 48 ] There is also evidence that shortly after the offence, which in police custody, the accused attempted self harm because of what he had done to the victim. This could be interpreted as an expression of remorse which is inconsistent with an incapacity to distinguish right from wrong. [ 49 ] This was explained by Dr.

Klassen as the accused having his delusions and perceptions challenged by the intervention of others during his arrest. The evidence is that leading up to the offence the accused was increasingly isolated from his family and community. He was left alone with his psychotic delusions, with no one to tell him that they were false. The psychosis became intense and pushed out rational thought. However, the arrest was a significant intervention which had the effect of somewhat muting the psychosis.

The fact of attempts at self harm, which might be consistent with regret and remorse at what he had done, does not take away from the impact of the psychosis at the time of the offence. VII. CONCLUSION [ 50 ] In accordance with s. 672.34 of the Criminal Code , I find that the accused was suffering from a mental disorder that rendered him incapable of knowing that the act was wrong.

Accordingly, I find him not criminally responsible because of mental disorder. [ 51 ] I decline to exercise authority under s. 672.45 of the Criminal Code to hold a disposition hearing and refer to the matter to the Nunavut Review Board. [ 52 ] Pursuant to s.672.47(2) of the Criminal Code the 45 day period for holding the initial disposition hearing may be extended to 90 days.

Given the transportation and placement of the offender and related scheduling issues I grant an extension to 90 days. [ 53 ] In the interim, pursuant to s. 672.46(2) of the Criminal Code , I direct that the accused be held in custody in a hospital. I do so on the understanding that he is likely to be admitted to the Ontario Shores Centre for Mental Health Services, where he has previously been treated. [ 54 ] A DNA order is discretionary. Given the nature of the offence and the criminal record of the accused, I direct that a DNA order be issued.

Dated at the City of Iqaluit this 3rd day of February, 2022 ___________________ Justice S. Cooper Nunavut Court of Justice