R. v. Bos, 2021 BCPC 300

Citation: R. v. Bos 2021 BCPC 300 Date: 20211213 File No: 259279 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRENNAN JAMES BOS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. MAH Counsel for the Crown: J. Lawton/B. McCabe Counsel for the Defendant: J. P.A. Reveley Place of Hearing: Vancouver , B.C. Date of Hearing: October 19, 2021 Date of Judgment: December 13, 2021 Overview

[ 1 ] These reasons were delivered orally in court on December 13, 2021. There may be minor differences between the oral and written versions which do not affect the substance of these reasons. [ 2 ] The accused, Mr. Bos, has been charged with assault, contrary to sections 267 (

b) and (

c) of the Criminal Code . Mr. Bos asks for a finding that he committed the assault as charged but is not criminally responsible by virtue of suffering from a mental disorder at the time. Issues [ 3 ] The issues before the court are as follows: 1. When Mr. Bos assaulted the victim, was he suffering from a “disease of the mind”? 2. If so, did that disease of the mind result in Mr. Bos being unable to either (

i) appreciate the nature or quality of his actions, or (ii) know that they were wrong? Background Facts [ 4 ] Mr. Bos is 26 years old and was raised in Abbotsford. By all accounts, he enjoyed a good upbringing with a supportive family. There is a family history of drinking in his father and depression in his mother. At present, he works in construction doing carpentry for his father’s company. [ 5 ] Mr.

Bos began to consume alcohol as a minor and although no formal diagnosis of alcoholism has been made, his drinking habits suggest a serious abuse of and long standing addiction to alcohol with 3 months being his longest period of sobriety. He first experienced depression and suicidal ideations at age 13 and has struggled with both since. In the summer of 2019, he began to see a counsellor to assist with his heavy use of drugs and alcohol. About a month prior to the assault, Mr.

Bos was prescribed Adderall by his doctor to treat his perseverations about an attack which he was the victim of in the winter of 2019. [ 6 ] The subject assault took place on March 16, 2020 but the previous day’s events are pertinent. Near the early morning of March 15, 2020, Mr. Bos felt quite paranoid and thought that his family would be killed in front of him. As such, he went to the Sumas border on the reasoning that it was a more secure place. Border guards spoke to him and called the police. The police attended and took Mr.

Bos home around 3 a.m. and subsequently, his parents took him to Vancouver General Hospital (“VGH”). Mr. Bos was discharged but his parents took him back to VGH ER that evening. Mr. Bos reported drinking alcohol, smoking cocaine, taking Adderall, and using marijuana but the times of his consumption were not clear. Mr. Bos was certified under the Mental Health Act and signs and symptoms of acute alcohol withdrawal were noted along with visual hallucinations. He remained in ER before being transferred to the secure mental health unit where the assault occurred. While in the unit, Mr.

Bos’ hallucinations continued along with further paranoid thoughts. He was assessed by a doctor and resident about 30 minutes prior to the assault and the report indicated that Mr. Bos’ psychotic symptoms were significantly improved from the night before but that he was still not well as he continued to interpret laughter from the nursing station as being directed at him and a sign that he was in danger. The evidence is consistent that at the time of the assault, Mr. Bos was being treated for acute alcohol withdrawal. [ 7 ] An Agreed Statement of Facts was filed with these germane admissions.

On March 16, 2020, Mr. Bos assaulted another patient in the secure mental health unit at VGH. The victim opened the bathroom door and found the accused standing in her room where he should not have been. Mr. Bos immediately assaulted the victim by choking and pushing her until the victim was on the ground. While on the ground, Mr. Bos punched the victim several times in the head, scratched her eyes, and bit her hand. Nurses attended to the victim’s screams and, eventually, Mr. Bos stopped and walked back to his room calmly. CCTV video showed Mr. Bos wandering in the hallways prior to the assault.

He entered another patient’s room and changed into that person’s shorts and t-shirt before going to the victim’s room. The victim suffered significant bruising, swelling, and scratches to her eyes, face, and head and a fracture of her left orbital bone. Photographs of the victim’s injuries were entered and show the substantial extent of these injuries. [ 8 ] The accused admitted the actus reus of the assault. As such, a finding was made that the actus reus had been proven beyond a reasonable doubt as Mr. Bos cannot be criminally responsible for conduct that the Crown has not proved. Then, Mr.

Bos brought an application to find that he is not criminally responsible on account of a mental disorder. The Crown did not oppose this application and advised that the victim was in agreement with the application. Law [ 9 ]

Section 16 of the Criminal Code states:

(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 a 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. [ 10 ]

Section 672.34 of the Criminal Code states: Where the ... judge ... finds that an accused committed the act or made the omission that formed the basis of the offence charged, but

was at the time suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the ...judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account ofmental disorder. [11] “Mental disorder” is defined in

section 2 of the Criminal Code as “a disease of the mind”. The court in R. v. Klein, 2021 BCSC743 explained further: [13] The scope of "mental disorder", for the purposes of s. 16, is very broad. It includes any illness, disorder, or abnormal conditionwhich impairs the human mind and its functioning. The illness, disorder, or condition may be of organic or functional origin, may becurable or incurable, and may be temporary or permanent, recurring or non-recurring. However, s. 16 mental disorder does not includemental states brought about by self-induced intoxication: see R. v.

Cooper, (SCC), [1980] 1 S.C.R. 1149 at 1159. [14] The question whether an illness, disorder, or condition amounts to "mental disorder" is a legal one to be decided by the trial judge.It is not a medical question, although "medical expertise plays an essential

part in the legal characterization exercise": R. v. Bouchard-Lebrun, 2011 SCC 58 at para. 61. [12] In R. v. Khan, 2019 ONSC 1086, the court noted that: The term “disease of the mind” is not fixed and inflexible. Instead, the term continues to evolve and is subject to developing legal,medical and policy determinations. That said, it has long been recognized that self-induced states caused by drugs and alcohol are generally excluded from consideration as adisease of the mind; See R. v. Cooper, (SCC), [1980] 1 SCR 1149. However, the prohibition is neither a blanketprohibition nor a blunt proposition.

In this regard, the courts have developed a holistic approach that examines whether a medicallydiagnosed disease of the mind constitutes a mental disorder in the legal sense; See R. v. Stone, (SCC), [1999] 2 SCR290 and R. v. Bouchard-Lebrun [2011] SCC 58. [13] Counsel referred the court to decisions that have held that alcohol withdrawal resulting in delirium tremens should be viewed as a“disease of the mind” as delirium tremens is not self-induced drunkenness but the result of long standing abuse. In R. v.

Malcolm, [1998]6 W.W.R. 23, the court explained: With respect, delirium tremens is not a condition brought about by alcohol. True, prolonged alcoholism may be a condition precedent todelirium tremens, but it is not its cause. What causes delirium tremens is an absence of alcohol. Then, later, the Court stated: It is clear from Dr. Jacyk’s evidence that “delirium tremens” is the label attached to an abnormal state of mind which may follow thehabitually excessive use of alcohol. It is not self-induced in the way of drunkenness: it is the supervening result of abuse over anextended period of time.

It is, in my view, a “disease of the mind” within s.16 of the Criminal Code. [14] Counsel also relied on R. v.

Bouchard-Lebrun, 2011 SCC 58 at paragraphs 67 to 69, which held that the general principle thattemporary psychosis excludes a not criminally responsible defence is not absolute and that an accused can rebut the presumption byshowing that, at the material times, he was suffering from a disease of the mind that was unrelated to the intoxication-related symptoms.In that case, the Supreme Court of Canada held that in order to determine whether the mental condition of an accused constitutes a“mental disorder” within

section 16 of the Criminal Code, the approach should be “holistic” based which takes into account the specificcircumstances of each case and should specifically consider:

a) the “internal cause factor” – would a “normal person” in the same circumstances have reacted to similar substance use bydeveloping psychosis. The comparison is objective and may be based on psychiatric evidence; and

b) the “continuing danger factor” – where a condition is likely to present a recurring danger, there is a greater chance that it will beregarded as a disease of the mind. [15] With respect to whether Mr. Bos was incapable of appreciating the nature and quality of the act or incapable of knowing that theact or omission was wrong due to his mental condition, the Crown pointed to the

definitions of “appreciating” and “nature and quality”as set out in paragraphs 63 and 62 of R. v. Palma, [2001] O.J. No. 3283. “Appreciating” is defined as more than mere knowledge andincludes the ability to analyze the knowledge or experience in one manner or another. “Nature and quality” refer to the physical nature,character, and consequences of the act on which liability depends. [16] The Crown also pointed to the

definitions of “knowing” and “wrong” as set out in R. v. Palma, [2001] O.J. No. 3283 and R. v.Chaulk, (SCC), [1990] 3 S.C.R. 1303. “Knowing” is not the same as appreciating and has been defined as a bareawareness. “Wrong” does not refer to legal wrongfulness but if the accused had the rational ability to acknowledge the moralwrongfulness of the act as judged by the everyday standards of ordinary persons. In R. v. Oommen (1994), (SCC), 91C.C.C. (3d) 8, McLachlin J. noted that the inquiry goes to the “ability to know that a particular act was wrong in the circumstances.” [17] In

summary, in order to find that Mr. Bos is not criminally responsible, he must prove on a balance of probabilities that: 1) he was suffering from a “mental disorder” at the time of the offence. The mental disorder may be an illness, disorder, orabnormal condition that is organic or functional, curable or incurable, or temporary or permanent, but must have impaired his mind.Generally, the mental disorder cannot be brought about by self-induced intoxication although exceptions have been made for deliriumtremens or if Mr.

Bos proves an “internal cause factor”, that a “normal person” in the same circumstances would not have reacted tosimilar substance use by developing psychosis and a “continuing danger factor” or recurring risk. The finding of a mental disorder is alegal one with consideration of medical opinion; and

2) the effects of the mental disorder rendered Mr. Bos incapable of appreciating the nature and quality of the act or knowing that it was wrong . Mr. Bos must prove that he did not have the ability to analyze the physical nature, character, and consequences of the assault or that he did not have the ability to know that the assault was wrong. Analysis [ 18 ] Counsel for Mr. Bos tendered 2 expert psychiatry reports into evidence: a January 11, 2021 report from Dr. Mark Riley which was ordered by the court pursuant to

section 672.11 (

b) of the Criminal Code and a second report dated September 3, 2021 from Dr. Kulwant Riar which was ordered by the accused. Neither doctor testified nor was cross-examined. [ 19 ] In his report, Dr. Riley noted that Mr. Bos blamed the psychosis on his use of Adderall, a stimulant medication. The Adderall had been prescribed about 1 month earlier and Mr. Bos admitted to taking more than the prescribed dose during the week prior to his admission to VGH. Dr.

Riley opined that “his misuse of this medication very likely contributed to the decline in his mental health during the week prior to his admission to VGH, but I am unable to conclude that this was the sole cause for his disturbed mental condition at that time.” Then, Dr. Riley wrote at para. 20: When I met with Mr. Bos he reported that his alcohol use had escalated during the months prior to the current charges, and that he had experienced withdrawal symptoms when he ceased drinking.

Acute withdrawal symptoms were also noted when he was admitted to VGH on March 15, 2020 as described above, and he was diagnosed and treated for alcohol withdrawal. His withdrawal symptoms appear to have persisted for only a few days, but his persecutory beliefs took at least a week to subside. This is consistent with a substance- induced psychotic episode, which was included in his discharge diagnosis when he was discharged from the Surrey Memorial Hospital (SMH) on March 31, 2020. [ 20 ] With respect to the assault itself, Dr. Riley concluded “however, if his account is to be believed Mr.

Bos was unable to resist the commands of the voices he was hearing at the time of the charges, which he reported had instructed him to assault the victim.” [ 21 ] Dr. Riley diagnosed Mr. Bos with alcohol use disorder, alcohol withdrawal, stimulant use disorder, and stimulant induced psychotic disorder. Dr. Riley noted that alcohol withdrawal and brief episodes of stimulant induced psychotic symptoms would unlikely be deemed a mental disorder as defined in the Criminal Code due to their transient nature. [ 22 ] Dr.

Riley noted that “the possibility of a persistent psychotic disorder could not be ruled out” and believed that Mr. Bos “may be vulnerable to experiencing psychotic symptoms while under the influence of substances in the future. Stimulants and marijuana are the substances most likely to cause this, but alcohol use is also associated with persisting psychotic symptoms in some individuals. Although this does not appear to be the case with Mr. Bos he would be at increased risk of psychotic symptoms of [sic] he were to experience another episode of acute withdrawal from alcohol”. [ 23 ] In his report, Dr.

Riar concluded that Mr. Bos was in the midst of a psychotic disorder episode at the time of the assault and due to conflicting evidence about consumption, it was debatable if the episode was due or influenced by alcohol, cocaine, or Adderall. Dr. Riar explained that “his actions and behaviours were the product of his psychotic state of mind. Due to his delusional perception and reality, he believed that he was in danger for his life and wanted to escape from the hospital. In this process, he was startled by the victim, whom he ended up assaulting.” [ 24 ] Dr.

Riar continued at p. 13 of his report: In my view his actions around the material time of the incident were most likely brought on by the psychotic process. I feel that at the time of the incident, he had the ability to know or appreciate that he was attacking and hurting the victim, but his actions were motivated by the underlying psychotic process, and he was not able to appreciate that they were a part of his illness, and the situation seemed reality to him.

I believe the main cause of his psychosis was a combination of his vulnerability to experience psychotic process, especially after the use of psychedelic substances and their influence on him. It also can be a possibility that psychosis was part of his underlying depressive illness, which he has suffered for years prior to incident in variable intensity. He likely was self-medicating with alcohol and drugs which intern [sic] complicated his depressive illness leading to him having psychosis….

As far as future risk of reoccurrence of episodes of psychosis and violent acts, which in my view are tied together, is still quite high. I base my opinion on the presence of ongoing underlying depressive or anxiety disorder and his tendency to use illicit substances to regulate his emotions. He is not agreeable or amenable to use medical remedies or treatment to deal with his mental disorders, he rather likes to depend upon psychoactive substances. [ 25 ] First, I note that Dr. Riley opined that Mr. Bos was not suffering from a mental disorder at the time of the assault and his conclusion is a medical opinion.

Respectfully, the finding of a mental disorder is one that only a court can make and I give no weight to Dr. Riley’s opinion in this regard. [ 26 ] With respect to the first step of the test, I find that on a balance of probabilities, Mr. Bos was unlikely suffering from a disease of the mind at the time of the offence for the following reasons: 1. Mr. Bos’ disease of the mind was likely caused by self-induced intoxication which, as a general principle, does not qualify as a mental disorder. I conclude that the psychosis was self-induced based on the following: a. Dr. Riley diagnosed Mr.

Bos with severe substance use disorder which resulted in psychotic symptoms with stimulant drug use and acute alcohol withdrawal. With respect to alcohol withdrawal and stimulant induced psychotic symptoms, Dr. Riley described them as transient in nature and that “they could be seen as due to an external cause (i.e. substance use) rather than any internal cause such as a major mental illness”. Dr. Riley’s diagnoses are rooted in the voluntary misuse of substances or self-induced intoxication;

b. Dr. Riley noted that a persistent psychotic disorder could not be ruled out but due to Mr. Bos’ stability over the past 7 months, he did not think that Mr. Bos had an underlying mental disorder or any other psychotic disorder. In other words, Dr. Riley opined that it was unlikely that Mr. Bos suffered from any underlying mental or psychotic disorder which caused the psychosis in issue; and c. Mr. Bos admitted to Dr. Riar that he had drank, smoked cocaine, and likely used Adderall and cannabis near the time of the attack and Dr. Riar noted some withdrawal symptoms. While Dr. Riar opined that Mr.

Bos was in the midst of a psychotic disorder episode at the time of the attack, he thought it was debatable if the psychosis was brought on or influenced by substance use of alcohol, cocaine, or Adderall as Mr. Bos gave conflicting statements about his use, quantity, timing, and type. However, Dr. Riar opined “I believe that the main cause of his psychosis was a combination of his vulnerability to experience psychotic process, especially after the use of psychedelic substances and their influence on him.

It also can be a possibility that psychosis was part of his underlying depressive illness, which he has suffered for years prior to incident in variable intensity. He likely was self-medicating with alcohol and drugs which intern [sic] complicated his depressive illness leading to him having psychosis. I do not believe that Mr. Bos’ actions were stemming from any antisocial or conduct disorders.” While Dr. Riar is clear that Mr. Bos was vulnerable to psychosis, his opinion was that it was likely self-induced by the use of psychedelic substances and that Mr.

Bos’ underlying depressive illness was only a possibility rather than likely. 2. Dr. Riley and Dr. Riar agreed that Mr. Bos was in a psychotic state at the time of the assault due to the consumption of substances and counsel suggested that Mr. Bos’ psychosis was due to a combination of alcohol withdrawal, unique vulnerability, underlying depressive or anxiety disorder, and the overuse of prescription Adderall. In turn, counsel asked the court to find that the “internal cause” test was met as a “normal person” who consumed alcohol and/or substances as Mr.

Bos did would not have reacted similarly by developing a psychosis. However, the evidence does not establish this conclusion as probable: a. At best, Dr. Riar said that Mr. Bos likely suffered from a substance abuse induced psychosis which he was vulnerable to but did not opine that it was likely that this vulnerability was part of an underlying illness or that others would not have reacted this way. In fact, Dr. Riar was silent in this regard and hypothesized only that it was possible that the psychosis was part of Mr. Bos’ underlying depressive illness.

Again, a possibility does not equate with a likelihood; and b. Dr. Riley noted that Mr. Bos blamed the changes in his mental condition on the use of Adderall medication which had been prescribed 1 month earlier. Although there was no substantiating evidence that Mr. Bos had overconsumed the Adderall, Dr. Riley accepted Mr. Bos’ report. Then, Dr. Riley opined that Mr. Bos’ sensitivity to a low dose stimulant was difficult to explain but if he had consumed a large amount in the week prior to his admission to VGH, then it would have been sufficient to explain the emergence of the psychotic symptoms. But, Dr.

Riley gave no evidence that a “normal person” who had consumed this same large amount would not have reacted as Mr. Bos did; 3. With respect to the “continuing danger factor”, Dr. Riley was not clear or definitive but acknowledged in a limited fashion that Mr. Bos may have an increased risk of psychotic symptoms in the future due to alcohol withdrawal. Dr. Riar was more explicit and warned that Mr. Bos’ future risk of reoccurrence of psychosis and violent episodes was “still quite high”. While I am satisfied that Mr.

Bos has a condition that is likely to present a recurring danger, I find that this risk of recurring danger is due to his self-induced intoxication and not an underlying condition. As such, the “continuing danger factor” is not met either; and 4. The defence argued that based on the evidence, Mr. Bos’ psychosis was likely caused by a combination of his unstable mental health, alcohol withdrawal, and misuse or abuse of Adderall. Even if I accept these causes, there was no evidence that these factors likely resulted in a particular vulnerability in Mr. Bos. I am mindful of the court’s statement in R. v.

Malcolm, [1998] 6 W.W.R. 23 that the accused’s psychosis in that case was not caused by alcohol use but by an absence of alcohol, but there was no evidence in the present case that the absence of a substance was the likely cause of Mr. Bos’ psychosis. Instead, the experts opined that the likely cause of Mr. Bos’ psychosis was the misuse of several substances. I am also mindful that courts have held that acute alcohol withdrawal resulting in delirium tremens should be viewed as a “disease of the mind” if it is the result of long standing abuse.

However, a specific diagnosis of delirium tremens or a similar condition was not made in Mr. Bos and leaves the court with the task to draw this conclusion. While I appreciate that the term “disease of the mind” is not fixed and inflexible but continues to evolve, there is simply no evidence that Mr. Bos’ condition was akin to delirium tremens or some similar condition.

In this regard, the court is being asked to find a “disease of the mind” without any objective medical basis or reasonable explanation to explain what the condition is other than substance induced psychosis. [ 27 ] Even though I find that the first step has not been satisfied, I have considered the second step of the test and namely, if Mr. Bos was unable to either appreciate the nature or quality of his actions or know that they were wrong. [ 28 ] As set out above, both psychiatrists agree that Mr. Bos was in a state of psychosis when he assaulted the victim. Dr.

Riar thought that due to his delusional perception and reality, Mr. Bos believed that he was in danger for his life and needed to escape from hospital. But, Dr. Riar opined that “I feel at the time of the incident, he had the ability to know or appreciate that he was attacking and hurting the victim, but his actions were motivated by the underlying psychotic process, and he was not able to appreciate that they were a part of his illness, and the situation seemed reality to him.” Counsel argued that by extension then, Mr.

Bos was not capable of appreciating the true nature and quality of his actions or that they were wrong. [ 29 ] However, I do not accept this proposition. The medical opinion is clear that Mr. Bos not only appreciated that he was attacking the victim but knew that he was hurting the victim which, clearly, was wrong. What Mr. Bos did not appreciate or know was that his motivation to attack was fueled by a false reality resulting from his self-induced psychosis. However, Mr. Bos’ failure to appreciate the motivation for his actions is not the test.

As such, I find that the second step of the test has not been proven. Disposition [ 30 ] In the circumstances, the accused’s application is dismissed.

_____________________________ The Honourable Judge D. Mah Provincial Court of British Columbia