R. v. Jordan, 2022 BCPC 63

Citation: R. v. Jordan 2022 BCPC 63 Date: 20220323 File No: 232873-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DYLAN ROBERT CHARLES JORDAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE JETTÉ Counsel for the Crown: M. Fortino Counsel for the Defendant: J. Grenier Place of Hearing: Surrey , B.C. Date of Hearing: March 10, 2022 Date of Judgment: March 23, 2022

Introduction [ 1 ] Following a hearing on the 10 th of March 2022 and at the invitation of both Crown and defence counsel, I applied the test in s. 16 of the Criminal Code and found that Dylan Jordan was not criminally responsible on account of a mental disorder (“NCRMD”) when he assaulted a fellow remand inmate on 30 September 2018. I declined to hold a disposition hearing under s. 672.45 of the Criminal Code and deferred disposition to the British Columbia Review Board for determination under s. 672.47 of the Code. [ 2 ] These are my reasons for that decision.

Summary of the Circumstances [ 3 ] Dylan Jordan was charged with assaulting Mohammed Gafoor on 30 September 2018 contrary to s. 266 of the Criminal Code . The information was sworn on 26 February 2019. [ 4 ] Mr. Jordan and the complainant Mr. Gafoor were both inmates at the Surrey Pre-Trial Centre. Mr. Gafoor was in a wheelchair and being escorted by a correctional officer to the medical unit when Mr. Jordan, whose cell had been mistakenly left unlocked, ran out of his cell, placed Mr. Gafoor in a chokehold and pulled him out of his chair and onto the floor. Mr.

Jordan did not comply with verbal commands to stop as correctional officers struggled to pry Mr. Jordan off Mr. Gafoor. Mr. Jordan continued to resist and attempted to punch the correctional officers. Additional staff were needed to bring Mr. Jordan under physical control and secure him back into his cell. [ 5 ] Mr. Jordan was 26 years old in October of 2018. Procedural History [ 6 ] The proceedings before me were protracted, and complicated by Mr.

Jordan’s deteriorating mental health and his unwillingness - or inability - to cooperate with sheriffs and correctional staff at court appearances. [ 7 ] Early in these proceedings, Mr. Jordan was brought into court shackled and covered in a spit hood. On other days sheriffs were unable to get Mr. Jordan to court at all. With the agreement of counsel, subsequent appearances were held virtually via MS Teams. Mr. Jordan would sometimes refuse to come to the video room, and on those occasions we conducted procedural matters in his absence. From my observations of Mr.

Jordan, it appeared fairly obvious that he was suffering from a severe and debilitating mental illness. I expect this would have been obvious to anyone who observed Mr. Jordan in court, either in person or on a video feed. [ 8 ] Counsel for Mr. Jordan eventually raised a concern that Mr. Jordan was not fit to participate in these criminal proceedings. I agreed that this inquiry was necessary, and ordered that Mr. Jordan be assessed at the Forensic Psychiatric Hospital (“FPH”) at Colony Farm.

An extended back and forth with the mental health professionals followed. [ 9 ] This initial assessment came back on 29 March 2019. Dr. Andrew Kolchak was of the view that Mr. Jordan was unfit. At a subsequent hearing on 29 April 2019 I found that Mr. Jordan was unfit and I referred the matter to the British Columbia Review Board. Mr. Jordan was treated and the Board subsequently declared him fit for trial. He was returned to the Court. [ 10 ] Mr. Jordan continued to display signs of severe mental illness after his return to court, and his counsel struggled to obtain instructions.

At the suggestion of Crown and defence, I ordered another fitness assessment. After reviewing the latest fitness assessment, on 8 December 2020 I found, once again, that Mr. Jordan was unfit for trial and made a second referral to the Board. As was the case after the first referral, Mr. Jordan was treated, the Board concluded that he was fit, and he was returned to the criminal justice system. [ 11 ] Following Mr. Jordan’s second return from FPH we were able to proceed with the commencement of the trial. On 10 March 2021 a not guilty plea was recorded and Crown filed an Agreed Statement of Facts (“ASF”).

Included in that package was a video recording of the incident giving rise to the assault charge. It was understood that the defence would seek a verdict of NCRMD. I was invited to find that the Crown had proved the a ctus reus for the offence of assault beyond a reasonable doubt with the NCRMD hearing to follow in due course. After reviewing the filed materials I was satisfied that the Crown had proved the actus reus for the assault of Mr. Gafoor on 30 September 2018 and the matter was put over for the NCRMD hearing. The Statutory Framework and Jurisprudence [ 12 ]

Section 16 of the Criminal Code sets out the test for determining whether the special verdict of NCRMD applies: 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 not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. [ 13 ] With respect to the burden of proof in this case, Crown and defence have jointly submitted that a finding of NCRMD has been established. [ 14 ] To find that the special verdict applies I must find that the accused suffered from a mental disorder when the offence was committed.

Section 2 of the Code defines a mental disorder as a “disease of the mind.” It is for me to determine as a matter of law whether Mr. Jordan was suffering from a disease of the mind when he attacked Mr. Gafoor: R. v. Bouchard-Lebrun, 2011 SCC 58 at

paras 61-63. [15] The second branch of the test in s. 16(1) calls for an inquiry as to whether the accused appreciated the nature and quality of theact or omission involved in the commission of the offence, or knew that the act or omission was wrong. The accused need onlydemonstrate one or the other on a balance of probabilities to meet this aspect of the test. [16] To be capable of appreciating the nature and quality of

an act or omission, a person must have the capacity to appreciate thephysical consequences of his act: R. v. Landry, (SCC), [1991] S.C.J. No. 4 at para. 17; R. v. Dobson, 2015 ONSC 2865at paras. 96-107. [17] In determining whether a mental disorder prevented the accused from knowing that the act or omission was wrong, the SupremeCourt of Canada held in R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303 that “wrong” in this context means more than simply“legally wrong”: [97]…In considering the capacity of a person to know whether

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

an act is contraryto law but, by reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morallywrong in the circumstances according to the moral standards of society… [18] In R. v. Ratti, (SCC), [1991] S.C.J.

No. 5, the court discussed the limits which apply to this branch of the test ins.16: [20]…Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of suchdelusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society. [19] This issue was addressed again by the Supreme Court of Canada in R. v.

Oommen, (SCC), [1994] 2 S.C.R. 507.At paragraph 30 McLachlin J. distilled the issue in this way: …Rather, the real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the timeof the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. The NCRMD Hearing [20] At the commencement of the hearing on 10 March 2022 Crown and defence filed a joint book of materials consisting of a seriesof psychiatric reports and assessments.

The authors did not testify before me at the NCRMD hearing. [21] A number of the reports were prepared by Dr. Kolchak from the Forensic Psychiatric Services Commission (“FPSC”). Thesereports dealt with the ongoing fitness issue. [22] Also included in these materials was a Pre-Sentence Report from March 2019 prepared by Dr. Stuart Lax, another psychiatristwith the FPSC; that report contained a great deal of useful background information with respect to Mr. Jordan’s history of mental healthand substance abuse issues. [23] Finally, I have been provided with a number of reports that address the NCRMD issue directly.

These reports were prepared byDr. Pratap Narayan from the FPSC and Dr. Johann Brink, a psychiatrist retained by counsel for Mr. Jordan. Dr. Brink also addressed thefitness issue in a report that pre-dated his NCRMD opinion. [24] I pause to note that I am not bound by the opinions expressed in these reports: R. v. Ratti, supra, at para. 24; R. v. Molodowic,2000 CSC 16 , 2000 SCC 16 at para. 12. As observed by Justice Tammen in R. v. Maan, 2018 BCSC 2414 at para. 130, “theultimate decision must be that of the trier of fact, not the experts.” [25] Having said that, both Dr. Narayan and Dr. Brink agreed that Mr.

Jordan was suffering from a mental disorder at the time of thisoffence. The mental health professionals at FPSC struggled for a time to identify and label Mr. Jordan’s mental health issues beforearriving at a diagnosis of either schizophrenia or schizoaffective disorder, both of which are major mental disorders. In Mr. Jordan’scase, the illness frequently manifested with episodes of command hallucinations, impulsivity and acting out violently. Dr. Narayan andDr. Brink agree with this diagnosis. They also agree that Mr.

Jordan was suffering from one or the other of these mental disorders whenhe committed this offence. [26] I agree with these opinions, and find on a balance of probabilities that Mr. Jordan was suffering from a mental disorder, eitherschizophrenia or schizoaffective disorder, when he emerged from his cell on 30 September 2018 and attacked Mr. Gafoor. This findingsatisfies the first branch of the test in s. 16(1) of the Code. [27] Moving to the second branch of s. 16(1), was Mr.

Jordan suffering from a mental disorder that rendered him incapable ofappreciating the nature and quality of the act or omission, or of knowing that it was wrong? [28] First, I agree with counsel’s joint submission that the evidence does not support a finding that Mr. Jordan was incapable ofappreciating the nature and quality of his assault of Mr. Gafoor. I accept that it is more likely than not that Mr. Jordan understood whathe was doing when he assaulted Mr. Gafoor. [29] The more challenging inquiry was whether I should find on a balance of probabilities that Mr.

Jordan knew his assault of Mr.Gafoor was morally wrong. Dr. Narayan and Dr. Brink did not agree on this point, and the factual underpinning for Dr. Brink’s opinionwas undermined to some extent by his inability to gain Mr. Jordan’s full cooperation during their meetings. [30] Dr. Narayan prepared two reports dated 6 May 2021 and 5 October 2021 respectively. I have also had the benefit of his working

notes from those two visits, and a brief email exchange with counsel which followed his second report. Dr. Narayan met with and interviewed Mr. Jordan on two separate occasions. During those meetings Mr. Jordan discussed the events of 30 September 2018. Dr. Narayan concluded that although Mr. Jordan was suffering from a disease of the mind when he attacked Mr. Gafoor on 30 September 2018, there was no evidence to suggest that he lacked the ability to appreciate the nature of what he was doing or that it was wrong. Although Mr.

Jordan reported that he was “hearing voices telling me to choke him, kill him” and that he could not stop himself, Dr. Narayan was skeptical that Mr. Jordan was hearing voices, and described Mr. Jordan’s description of the voices as atypical, not associated with delusions, and not suggestive of genuine psychotic hallucinations. He was unable to find evidence of any outward behaviours that were indicative of Mr. Jordan responding to voices. More specifically, Dr. Narayan does not accept Mr. Jordan’s assertion that he heard voices and acted on their command. [ 31 ] Dr. Brink has known Mr.

Jordan for some years when Mr. Jordan was a patient at FPH and Dr. Brink was serving in the role of Clinical Director. Although he was never Mr. Jordan’s treating psychiatrist, he was consulted by his treating psychiatrists regarding management and treatment of his psychiatric problems, and he observed Mr. Jordan when performing the role of duty psychiatrist and as Clinical Director. He noted that during these personal observations Mr. Jordan would sometimes act aggressively, seemingly in full awareness of his actions, while on other occasions he appeared to be unaware of his actions and surroundings. [ 32 ] Dr.

Brink summarized Mr. Jordan’s personal, mental health and legal history, much of which was documented by other mental health professionals in prior reports. Mr. Jordan is the product of a dysfunctional family upbringing. He engaged in substance misuse from his teens and into adulthood. Mr. Jordan suffers from substantial cognitive deficits that were identified when he was a child, some of which may be connected to a head injury he suffered when skateboarding.

He has a long and documented history of mental health featuring multiple admissions to hospital for treatment, and there is a genetic vulnerability to serious mental illness on his maternal side. Of particular significance is the fact that Mr. Jordan has been reporting perceptual disturbances in the form of auditory command hallucinations since age 13. Dr. Brink reports that he personally observed Mr.

Jordan apparently responding to auditory hallucinatory voices during a violent encounter with a fellow patient as recently as June of 2021. [ 33 ] Counsel filed admissions of fact at the NCRMD hearing that describe aspects of Mr. Jordan’s treatment at FPH since he was declared unfit to stand trial on 29 April 2019. Those admissions document Mr. Jordan’s history of hearing voices and responding to command hallucinations, and include reports from nurses involved in Mr. Jordan’s care who have on occasion observed him responding to stimuli that the nurse cannot see or hear. [ 34 ] Dr. Brink attempted to meet with Mr.

Jordan on two occasions prior to preparing his report. On the first occasion Mr. Jordan was brought into a room with his hands cuffed behind his back and nursing and security staff just outside the open door. This meeting lasted only 15 minutes, and ended when Mr. Jordan said “fuck” and jumped out of his seat. After he was calmed by staff, he said he did not want to continue the interview. At the second meeting some five weeks later, Mr. Jordan was being abusive to staff and was not brought to the interview room. When Dr. Brink spoke to Mr. Jordan through the window of the seclusion room door, Mr.

Jordan said “the voices are loud today – they tell me to kill myself and harm others.” He refused to be interviewed. [ 35 ] In his report, Dr. Brink recognized the limitations caused by his inability to question Mr. Jordan about the assault itself. Even so, and taking into account Mr. Jordan’s documented mental health history and his own observations of him at FPH, Dr. Brink reported that it is possible Mr. Jordan was acting on command hallucinations when he attacked Mr. Gafoor. He then offered this opinion at paragraph 61 of his report: In the case of Mr.

Jordan, it is possible, and even probable, that when he acts on command hallucinations, he does so in an unthinking and uncritical manner, and is deprived at such times of the capacity to distinguish right from wrong. If the court finds that Mr. Jordan acted on the command of hallucinatory psychotic voices, it is my opinion, on a balance of probabilities, that Mr. Jordan at the time would have been deprived of such capacity of knowing the legal and moral wrongfulness of his actions. [ 36 ] As noted earlier in these reasons, Mr. Jordan did speak to Dr. Narayan about why he attacked Mr. Gafoor. Mr. Jordan told Dr.

Narayan that he was “hearing voices telling me to choke him, kill him.” The difference between the opinions presented by Dr. Narayan and Dr. Brink is this: Dr. Brink accepts that Mr. Jordan hears voices and acts on their command, and Dr. Narayan is skeptical that Mr. Jordan hears voices at all. [ 37 ] I prefer Dr. Brink’s opinion that Mr. Jordan has long experienced command hallucinations, and that he was probably acting at the behest of those “hallucinatory psychotic voices” when he came out of his cell and attacked a fellow inmate on 30 September 2018. I find that Mr. Jordan’s report to Dr.

Narayan, that he was doing exactly that, supports this conclusion. [ 38 ] I also agree with Dr. Brink’s opinion that in these circumstances, Mr. Jordan would have been deprived of his capacity to distinguish right from wrong when he engaged in this attack. In other words, the evidence persuades me on a balance of probabilities that Mr.

Jordan did not know that his actions were morally wrong. [ 39 ] As per s. 672.45 of the Code , I direct the registry to send a copy of the verdict in original or copied form, a transcript of the court’s proceedings on 10 March 2022, all exhibits, any other document or information related to these NCRMD proceedings, and these reasons, to the Review Board that has jurisdiction in respect of the matter. _____________________________ The Honourable Judge M. Jetté Provincial Court of British Columbia