R. v. Ordano Date:, 2017 BCPC 32

Citation: R. v. Ordano Date: 20170206 2017 BCPC 32 File No: 39796-3-C Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYLER RYAN ORDANO REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: D.L. Fitzsimmons Counsel for the Defendant: S.Runyon, D.Marion Place of Hearing: Campbell River , B.C. Dates of Hearing: Dec 1 & 2, 2015 and September 22 & 23, 2016 Date of Judgment: February 6, 2017

Introduction and Background [ 1 ] As a result of events that took place in the morning on May 28, 2015, Mr. Ordano has been charged with a number of serious offences: • Aggravated assault; • Break and enter into a dwelling; • Assault with a weapon; • Use of a weapon - a shotgun - while committing an assault; • Possession of a weapon - a shotgun - for a purpose dangerous to the public peace or for committing an offence; and • Reckless discharge of a firearm. [ 2 ] Mr. Ordano and the complainant, Stephen Allcroft, had been friends for about five years.

Their wives knew each other, their children played together and both families lived in the same small community. [ 3 ] On the morning in question, Mr. Ordano drove a short distance to Mr. Allcroft's home bringing with him his loaded 12 gauge shotgun. He arrived in the driveway at the home at approximately 7:15 a.m. Outside the residence, Mr. Ordano saw Mrs. Allcroft with her five year old daughter who was awaiting a ride to school. [ 4 ] Mr. Ordano jumped out of his truck with the gun. He started yelling for Mr.

Allcroft, walked towards the front door and then fired one round into the air towards where the front porch was located. The shotgun slug struck and lodged in the frame of a baby stroller stored on the porch. [ 5 ] He went into the house and found Mr. Allcroft sleeping on the sofa in the living room. He pointed the still loaded shotgun at Mr. Allcroft's head. Mr. Allcroft woke up to see the gun pointed at his head. At some point he heard Mr. Ordano swearing and yelling saying “stay away from my family, you’re dead” and “I’m going to kill you”. [ 6 ] A fight over the weapon ensued and Mr. Ordano struck Mr.

Allcroft a number of times with his head and elbows and, in Mr. Allcroft’s words, with “whatever else he could”. Mr. Allcroft’s dog intervened allowing Mr. Ordano to keep possession of the shotgun and he pointed it at Mr. Allcroft again. Mr. Allcroft grabbed the gun again and during the struggle, the second round was discharged sending a shotgun slug into the wall of the living room. [ 7 ] Mr. Allcroft was finally able to get hold of the gun, remove the one remaining shell and place it on the floor. Mr.

Ordano demanded his shotgun back and upon seeing his one year old and four year old children walk into the living room, he kicked the gun back to Mr. Ordano. [ 8 ] As Mr. Allcroft was reaching for his child, Mr. Ordano swung the shotgun like a baseball bat at Mr. Allcroft's face and struck him in the head with it. [ 9 ] As Mr. Allcroft stood there holding his youngest child, he asked Mr. Ordano what he was doing, saying that he had his baby in his arm. It appears that once Mr. Ordano realized that Mr. Allcroft had his child in his arms, he left saying that he would be back. Mr.

Allcroft saw him slowly drive away, saying again words to the effect that he would be back. [ 10 ] Mr. Allcroft was injured and suffered a concussion, an injury to his eye, ruptured tendons in his hand requiring surgical repair, and post-traumatic stress disorder. [ 11 ] Mr. Ordano was arrested the same day and was detained in custody until his release on March 24, 2016. [ 12 ] Mr. Ordano has no prior criminal record or any record or contact with the police for violent or any concerning behaviour. [ 13 ] Neither Mr. nor Ms. Allcroft could understand why this had happened. [ 14 ] Mr.

Ordano was assessed by a forensic psychiatrist, Dr. Deanne Breitman, who formed the opinion that at the time of the offence Mr. Ordano was suffering from a major mental disorder, namely, Bipolar Affective Disorder, with an acute manic episode and psychosis. She also considered Schizoaffective Disorder as a differential diagnosis. [ 15 ] Flowing from that, Mr. Ordano seeks a finding from this court that he is not criminally responsible for his actions on the morning in question. [ 16 ]

Section 16 of the Criminal Code sets out the following: 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. Issues [17] The issues to be determined are: • At the time of the offence, was Mr. Ordano suffering from a mental disorder? • If so, did the effects of the mental disorder render him incapable of either: ▪ appreciating the nature and quality of his actions; or ▪ knowing that they were wrong. Position of the Parties [18] Mr. Ordano submits that the court should accept Dr. Breitman's diagnosis and, secondly, that Dr. Breitman’s expert opinioncoupled with all the evidence establishes that Mr.

Ordano’s mental disorder rendered him both unable to appreciate the nature andquality of his actions and to distinguish right from wrong. [19] Expressing it another way, Mr. Ordano's counsel submits that at the time of the offence Mr. Ordano did not have the capacity toappreciate the physical character or the physical consequences which flowed from his actions: Cooper v. The Queen, (SCC), [1980] 1 S.C.R. 1149. Furthermore, counsel submit that Mr. Ordano lacked the capacity to rationally decide whether his actionswere “right or wrong and hence to make a rational choice about whether to do it or not”: R. v.

Oommen, (SCC), [1994]2 S.C.R. 507, para. 26. [20] Defence counsel asserts that there is ample evidence to establish a factual foundation for Dr. Breitman's expert opinion andaccordingly, while not determinative, it should be given considerable weight. [21] On the other hand, the Crown submits that the evidence supports the view that Mr. Ordano was sleep deprived and that fatigueis a more likely explanation for his behaviour, not a mental disorder. Furthermore, he asserts that Mr.

Ordano provided a rationalexplanation for his conduct to the police and that he also articulated the events rationally at trial, thus demonstrating an appreciation ofthe nature and quality as well as of the consequences of his actions. [22] The Crown urges the Court to give little weight to Dr. Breitman's opinion. He points to inconsistencies in Mr. Ordano'sstatements both to the police and to Dr. Breitman shortly after the events as compared to statements made to her and upon which sherelied for her opinion some five months later. [23] Lastly, the Crown points to Mr.

Ordano's meetings with another physician - Dr. Fuhr - while he was in custody and suggestsfrom the evidence that Dr. Fuhr and Mr. Ordano were attempting to find a “scientific explanation” for Mr. Ordano's behaviour. Crowncounsel submits that, at the time she wrote her report, Dr. Breitman had not reviewed or considered Dr. Fuhr’s notes and, essentially, hadnot considered the possibility that Mr. Ordano was fabricating his symptoms in an effort to bolster his defence.

The Legal Framework [24] It is a fundamental principle of our criminal law that all persons are presumed to be sane and capable of sufficient rationalthought and reason to be held responsible for their crimes. [25] Conversely, someone who is suffering from a mental disorder to the extent that they were not capable of understanding orappreciating that the nature or quality of their actions or, alternatively, that they are wrong, will not be held criminally responsible. Thisis reflected in

section 16 of the Criminal Code and a person who falls within its ambit will not be held criminally responsible. Rather,the focus will be on treatment of the individual so as to ensure that the public is protected. [26] It falls to the person who is accused of a crime to establish, on a balance of probabilities, (not proof beyond a reasonable doubt)this. [27] The Criminal Code does not define “mental disorder” as it is currently worded (it was formerly called a “disease of the mind”). However, the jurisprudence over the years has established that the term should be interpreted broadly and liberally.

It includes anyillness which impairs the human mind and its functioning but does not include self-induced states caused by alcohol or drugs or atemporary mental state: R. v.

Cooper, (SCC), [1980] 1 SCR 1149. [28] The second criterion, inability to appreciate the nature and quality of the act or that it was wrong, is not so straightforward andjudges have devoted much time and effort in an effort to outline its meaning and scope. [29] The question of whether a person appreciates the nature and quality of his action is not focused narrowly on cognition or actualknowledge, but includes the broader ability to perceive the consequences, impact, and results of a physical act at the time of itscommission: R. v.

Cooper, (SCC), [1980] 1 S.C.R. 1149. [30] Another way of putting it is that, an accused person, at the time of committing the offence, must “have had an appreciation ofthe factors involved in his act and the mental capacity to measure and foresee the consequences of it.”: R. v. O’Brien, (NB CA), [1966] 3 C.C.C. 288. [31] The difference between “knowing” and “appreciating” the nature and quality of

an act were aptly described by Dickson, J. inCooper (supra):

To "know" the nature and quality of

an act may mean merely to be aware of the physical act, while to "appreciate" may involveestimation and understanding of the consequences of that act. [32] The ability to appreciate or understand is not the same as simply knowing. By way of further illustration, as stated in Cooper(supra), the Criminal Code was deliberately amended to change the language used in order to: …broaden the legal and medical considerations bearing upon the mental state of the accused and to make it clear that cognition was notto be the sole criterion.

Emotional, as well as intellectual, awareness of the significance of the conduct, is in issue. [33] An individual is also exempted from criminal responsibility if a mental disorder renders that person incapable of knowing thatthe act was wrong. The focus of the inquiry is on the person’s capacity to know that the particular act was wrong, not the generalcapacity to know right from wrong. As was said by McLachlin, J. (as she then was) for the entire court in R. v.

Oommen, (SCC), [1994] 2 S.C.R. 507, para. 26: 26 The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and henceto make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mentaldysfunctions; as the following passages indicate these include at a minimum the states to which the psychiatrists testified in this case --delusions which make the accused perceive

an act which is wrong as right or justifiable, and a disordered condition of the mind whichdeprives the accused of the ability to rationally evaluate what he is doing. [Emphasis added] [34] In making a determination, the court will frequently hear expert evidence in the form of a medical opinion. In the case at bar,expert evidence was given by Dr. Breitman, Forensic Psychiatrist.

However, it is clear that it is the trial judge’s role to determinewhether or not, based on all the evidence, a mental condition falls within the legal concept of “mental disorder” and whether the extentof the mental disorder is such that the individual is not criminally responsible: Cooper (supra). The Evidence [35] I now turn to a consideration of the evidence. [36] In terms of Mr. Ordano’s condition in the days prior to the offence, I accept that for a period of thirteen days between May 15and 27, 2015, Mr. Ordano was a deckhand on the “Snowfall”. Mr. Gary Pool, the skipper, testified that initially Mr.

Ordano was a hardworker but that over time he began to notice that he was “cocky” and behaved as if he could do everything. At the end of the trip, whenthey docked in Port Hardy, Mr. Ordano appeared angry and was punching the walls on the ship. Mr. Pool testified that he couldn’tunderstand why Mr. Ordano was acting that way. He asked him if he was required to take medication and suggested to Mr. Ordano thatperhaps he should seek some help. He testified that there was no response or reaction at all from Mr. Ordano. The Snowfall is a “dryboat” and Mr. Pool never observed Mr.

Ordano consume drugs or alcohol during the trip. [37] Ms. Anna Brednow was an employee at Klassen's Auto in Port Hardy on May 27, 2015 and was the person who called Cst.Hobbs at about four p.m. that day. She testified that she initially saw Mr. Ordano on that day between 10:30 a.m. and 11:00 a.m. and, Itake from this evidence, that Mr. Ordano was at this dealership virtually the entire day. She understood that he was there to purchase anew truck and when she first saw him he had just come back from a test drive. [38] She testified about her observations of him during her encounter with him. According to her, Mr.

Ordano frequently lost trackof the conversation they were having about the truck. As she described it, he would stare at the wall then turn to closely look at her faceand explain his new Google Earth application. He showed her the Google Earth depiction of the North Pole and he advised her that theNorth Pole no longer existed. According to her, Mr.

Ordano was not able to follow one train of thought, and would talk about a varietyof topics including that his daughter was recently injured, the North Pole and the snow; then ask to use the telephone to call a friend; andthen switch to a discussion about fishing on the boat. [39] She described him has being “very calm, very lost, very odd and a little scattered”. [40] The cost of the new truck was approximately $60,000 and he told Ms. Brednow he was going to pay cash. At some point priorto the paperwork being done, Mr.

Ordano had already moved all his personal belongings from his old vehicle into the new truck hewanted to purchase. [41] Mr. Ordano left to get the cash while she was preparing the paperwork but returned advising that he had no money. Ms.Brednow described Mr. Ordano as confused, very agitated, very angry and very upset. She was concerned Mr. Ordano wasn't safe. Sheput it in the following words: "he didn't seem to be in the right frame of mind to be going anywhere”.

She was clear that she did notdetect an order of alcohol and that his behaviour didn't appear to be drug related. [42] At about 4 p.m., shortly after Mr. Ordano left the dealership, Ms. Brednow called the RCMP and spoke to Constable Hobbsexpressing her concern about Mr. Ordano’s safety. [43] As a result of her call, Constable Hobbs looked into Mr. Ordano's history and noted that there had been nothing in their filepertaining to him except for a traffic stop in November. They were aware that his daughter had been injured in a fire. Constable Hobbswent to the Sayward junction and was able to intercept Mr.

Ordano's southbound truck. He activated his emergency lights and Mr.Ordano pulled over. [44] He spent about thirty minutes speaking with Mr. Ordano. He did not detect any odour of alcohol or other signs of impairmentand made inquiries to determine if there was some stress-related or mental health issue affecting him. They talked about stressors andMr. Ordano indicated that he was tired and wasn't sleeping well. Cst. Hobbs formed the opinion that there is nothing further for him todo and let Mr. Ordano proceed on his way. [45] Mr. Ordano arrived home shortly thereafter. Ms.

Ordano testified that her husband was upset and that his mood was "very up

and down" and she suggested that he have some cannabis to calm down. He refused. She described that they were arguing but that he did not use any illicit drugs or alcohol. He was panicked about their daughter and upset that she had been hurt. [ 46 ] She testified that Mr. Ordano began to wrap their daughter in cold towels and contacted 911. Before the ambulance attendants appeared, her friend Alisha Allcroft, wife of the complainant, arrived at the house. [ 47 ] Ms. Allcroft testified that she had seen Mr. Ordano on a number of previous occasions but my impression was that she was in the company of Ms.

Ordano more frequently. She described that Mr. Ordano was saying things out of context or out of order and that some of the things he said didn't make "too much sense". She observed that Mr. Ordano was clearly angry and swearing at his wife. Ms. Allcroft asked if Mr. Ordano was on drugs. [ 48 ] Mr. Ordano left and drove off in the direction of Ms. Allcroft's house to go see her husband. The ambulance attendants were still there at that time and left shortly thereafter. [ 49 ] Mr. Allcroft also testified. He has been friends with Mr.

Ordano for about four or five years and indicated there had never been fights or altercations between them or any other issues that would cause anxiety or tension in their relationship. [ 50 ] They socialized together and he did not see any significant drug problems or a drinking problem. On the night of May 27, 2015, he observed that Mr. Ordano was upset. Mr. Allcroft was concerned that there was something unusual going on with Mr. Ordano and he called his wife while she was still at the Ordano residence to ask her if there was something wrong with Mr. Ordano. [ 51 ] Ms.

Ordano described her observations of her husband that evening in the following words: "I thought he was very excitable, panicky. I was quite surprised because I hadn't seen him in a couple of weeks and I was expecting him home quite earlier and so it was kind of a shock to me. I wasn't really sure what was going on with him, what was going on in his head." She testified that her husband tossed and turned all night and probably only had a couple of hours sleep. [ 52 ] There is also evidence that Mr. Ordano has experienced unusual episodes in the past. Ms.

Ordano testified that in 2007 and 2009 while he was on commercial fishing trips, he told her that he thought he was going insane that he was hearing voices and that the crew was laughing at him. He also told her that he was speaking with God and getting spiritual revelations. [ 53 ] Mr. and Ms. Ordano are Christians and I have considered whether or not what was being described was more akin to prayer or belief consistent with his religion. In my view, his behaviour went beyond normal spiritual beliefs and practices. It is clear that Ms.

Ordano didn't truly understand what was happening with her husband during these previous episodes. She explained that Mr. Ordano was not terribly descriptive but indicated that he was hearing and seeing things and it wasn't making sense to her. [ 54 ] Mr. Ordano also testified.

He had a happy childhood and after completion of Grade twelve went on to obtain his welding tickets and Master Limited ticket which allowed him to operate a 60 ton ship. [ 55 ] In describing events while he was on commercial fishing trips in 2007, he related that he felt he was "losing touch with reality and there was only one person to talk to". He testified that it felt like he had lost his mind. He wasn't sure if it was God who he would talk to or if it was his "own thing going on in my head".

He used the group radio in the fleet to spread the word of God but in his view, when his boat started to catch more fish he was of the view that he was being blessed. He described feeling that he had lots of energy, scattered thoughts and was not sleeping well. [ 56 ] He also testified about the commercial fishing trip he took in 2009. He described how he became reclusive and stopped talking to everyone for days because he believed that everyone was talking about him. He described how he had told other crew members that he was a messenger of Jesus and felt that he was being placed under more pressure.

He described it in these terms: "just… Just things, like, pressure to keep working doing the job, it's kind of hard to explain, but when you think… When you… When you look around and you think everyone is kind of watching you, and everyone just gets in my head sometimes, and this just like a tremendous pressure." [ 57 ] Giving evidence about the fishing trip on the Snowfall in 2015, he described how he felt that all the satellites were watching him and that he thought the world was ending but that was up to him to save it.

As he described it "it kind of took every ounce of brainpower I had but, yeah, I had saved the world from judgment day in the middle of the night." He went on to describe a sense of confusion and thinking that the world had changed while he was on the ship. He couldn’t sleep and testified that his brain “just wouldn’t shut down.” He described a number of other instances of disordered thinking including feeling that he had a psychic ability to talk to his family and that he “was meant for something.” [ 58 ] He recalled attending at the dealership in Port Hardy after returning to dock.

He describes seeing a brand-new truck parked beside his and thinking that it was his, so he started moving all his own gear including fishing gear from his old truck into the back of the new pickup truck. [ 59 ] He recalls meeting Constable Hobbs on the highway and recalls talking about work and finances. Mr. Ordano testified about the night he arrived home and called 911. He described a number of feelings and beliefs such as feelings of importance, being part of a secret organization and having difficulty getting to sleep. The appearance of Ms.

Allcroft so soon after that call was a signal to him that she may have been part of a secret organization that he believed he was being recruited into. When he went to see Mr. Allcroft that night, he thought he was speaking in a code to determine if Mr. Allcroft was also working for the agency or organization. [ 60 ] He tried to sleep that night but at one point got up early in the morning and drove to Campbell River to see his grandfather who was in a care facility. However, he went to the wrong home.

He described feeling confused and driving out to a few other businesses before going home. [ 61 ] In my view, his evidence about how he felt when he returned from the fishing trip on the Snowfall best illustrates Mr. Ordano’s mental state: "… I thought the world had just changed, and maybe I… was on a… fishing trip, but it was a… It was a psychological, emotional, spiritual roller coaster. And I got back and everything was different...."

[ 62 ] I turn now to the events that took place on May 28, 2015. Mr. Ordano's evidence is that when he woke up in the morning, he felt compelled to go to Mr. Allcroft's home and it was part of something that he was supposed to do. As he described it "the world was telling me to. It felt like… God was guiding me. It felt like all the higher powers were telling me to go. Constable Hobbs was telling me to go.

But it was all in my head." and “... it just felt like it was part of the…mission.” [ 63 ] He recalled the events as they unfolded - driving to the Allcroft home that morning, firing a shot outside, walking into the house and pointing a gun at Mr. Allcroft. [ 64 ] He recalls yelling and wrestling over possession of the shotgun which then discharged into the wall. When he saw Mr. Allcroft's little girl crying and screaming he left. [ 65 ] Upon leaving, he went home but doesn't recall what was said. Ms.

Ordano testified that her husband stopped his vehicle in the middle of the road and was very mechanical in his behaviour. He told her he was going to the police to explain what happened. [ 66 ] As he drove towards the Sayward police station, he was apprehended and arrested. [ 67 ] Constable Hobbs was the primary arresting officer. He described Mr. Ordano as initially cooperative in getting out of his truck and laying down on the roadway. He was then handcuffed and advised he was under arrest. [ 68 ] They started to perform a search of him and at that point Mr. Ordano became extremely aggressive and violent.

It took two officers to get him in the back seat of the police vehicle and at one point Mr. Ordano began striking his head against the silent patrolmen, the plastic and metal partition between the front and rear of the vehicle. [ 69 ] He was taken to the detachment and alternated between periods of calm and periods of yelling and screaming obscenities. Once he was lodged in his cell, Constable Hobbs made inquiries about the possibility of having a mental health assessment based on all of the events leading up to the incident at the Allcroft residence. He also observed Mr.

Ordano in his cell punching and kicking the walls and performing karate like moves. Because an assessment would have to take place at the hospital and likely because of safety concerns in moving Mr. Ordano to the hospital, no mental health assessment was ever conducted at the detachment. Dr. Deanne Breitman [ 70 ] Dr. Breitman is a Forensic Psychiatrist and interviewed Mr. Ordano on two occasions. Her first interview was on June 5, 2015 for the purpose of determining his fitness to stand trial. She ultimately concluded that Mr.

Ordano was fit on the basis that he could communicate with counsel, had knowledge of courtroom proceedings and process as well as possible outcomes. [ 71 ] While I accept that the focus and the nature and quality of the interview differed from her second interview, Dr. Breitman did obtain a history from Mr.

Ordano and she noted the following: • He was born in Campbell River and had a good childhood; • He obtained postsecondary education to obtain a fishing boat license as well as a welding certificate; • In the course of relating that he had been employed most of his life, he added that "he has ‘ideas’” and that “he has ‘a lot’ of plans including volunteering to help children and building houses." • He had been experiencing poor sleep for days prior to his incarceration but described that his energy was usually "pretty high"; • Prior to incarceration (in other words, the offence) he was experiencing elevated energy and jitteriness and it was "hard to wind down"; • Ms.

Ordano told Dr. Breitman that Mr. Ordano often had grandiose plans, spoke about how the world revolved around him and that, during the last fishing trip, her husband told her that he was only getting one hour of sleep each night because his mind was racing. • He stated that before his incarceration, he was "experiencing an increase in ideas and plans" and while not experiencing racing thoughts at the time of the interview, he had experienced some racing thoughts prior to incarceration. [ 72 ] Dr. Breitman noted that Mr.

Ordano was generally vague in his description that he believed "people outside, specifically police and elders” but also "people in general", were “keeping an eye on things." And he assumed that they were talking about him. [ 73 ] Mr. Ordano told Dr.

Breitman that he had last used cannabis just prior to the offence (which was then approximately one month previous) but discontinued because he was working on a fishing boat; he admitted to use of cocaine in the past and last used about two weeks before the fishing trip; he had not been drinking while on the fishing trip prior to the offence. [ 74 ] At the time of her interview, Dr. Breitman noted that he was not agitated but appeared "somewhat distractible" and "somewhat suspicious and distrusting of others with possible persecutory ideation." Dr. Breitman also noted that Mr.

Ordano indicated to her that he spoke with a man who he believed may be a doctor and gave a recorded statement, at the police station, a day or two after he was arrested. He indicated that he was suspicious that he had been made to say things, was being manipulated and being watched. He was vague. [ 75 ] Dr. Breitman was of the opinion that Mr. Ordano presented with vague psychiatric symptomatology but that there was some indication of psychiatric and vegetative symptoms prior to his current incarceration suggestive of some psychiatric instability.

She was of the view that at the time of her interview, there was no evidence of "prominent acute psychosis" or an "acute mood episode" and was psychiatrically stable.

[ 76 ] Dr. Breitman interviewed Mr. Ordano for a second time on October 23, 2015. In preparation for her assessment and report, she reviewed her first report and the report to Crown counsel which included witness statements. She interviewed Ms. Ordano. This assessment and interview was much more detailed than her first assessment as befitted the focus of her inquiry. [ 77 ] She described Mr. Ordano’s observable mood as labile - at times he would be settled, other times irritable, other times laughing.

She explained in direct examination that his mood fluctuated more rapidly than would be expected in a normal, healthy and stable individual. [ 78 ] During this assessment, she reviewed Mr. Ordano's previous psychiatric history. She noted that both Mr. and Mrs. Ordano described what she referred to as episodes of decompensation on previous occasions. In 2007 as well as 2009, Mr. Ordano reported that he began talking to God over the radio and believed that he was God's messenger. On both occasions he felt that he was being laughed at. On the 2007 trip, he described having elevated energy, ideas and racing thoughts.

During her direct examination, she explained that these symptoms were consistent with a manic episode. [ 79 ] He believed that they began catching more fish than others because God was blessing him. He admitted to her that he still had those beliefs to some extent. [ 80 ] Similarly, during the 2009 trip he began to feel that everyone was talking about him. He denied use of drugs or alcohol on either of these fishing trips. Dr. Breitman’s opinion is that Mr.

Ordano was describing persecutory and grandiose delusions and that at the time of her assessment his insight into those was only partial. [ 81 ] In her opinion, Mr. Ordano’s symptoms of psychosis were only partially attenuated or resolved in that he continued to hold on to some of them and did not fully understand that they were delusions.

She described him as being vague with regard to current delusions and in cross examination testified that this was not unusual because individuals experiencing delusions are unsure about the reality of them and are often confused themselves. [ 82 ] Turning to the 2015 offence, Mr. Ordano described the events before and on May 28, 2015 in some detail to Dr. Breitman. [ 83 ] I note that Dr. Breitman reported that Mr. Ordano indicated that he was not honest about some questions he was asked during the first interview and assessment. In particular, during the second interview, he told Dr.

Breitman that he wasn't responding honestly to questions about whether he believed he was being watched. He then went on to describe feeling that everyone was watching him "including God, the world, and satellites." I note that in her first report, as set out earlier, Dr. Breitman indicated that Mr. Ordano felt that people were "keeping an eye on things" but he was vague. I find that Mr. Ordano’s answers in both interviews are consistent although certainly more detailed in the second assessment. [ 84 ] During the second interview, Mr.

Ordano described that while on the fishing boat he had difficulty sleeping and described having "too many thoughts" and feeling "scrambled". Dr. Breitman testified that it is common for people with an underlying mental health issue, such as bipolar disorder, to have a manic episode triggered by insufficient sleep or stress. The evidence supports my view that Mr.

Ordano had not been sleeping well for days prior to the offence and was also experiencing significant stress related to his daughter’s injury. [ 85 ] In cross examination, she agreed that using cannabis can be destabilizing in an individual with an underlying mental illness but was of the view that the lack of sleep was the primary factor in triggering Mr. Ordano’s manic episode. She also testified in cross examination that lack of sleep is not a disease of the mind, but a manic episode and bipolar disorder is. [ 86 ] In describing the events of the offence, Mr. Ordano described to Dr.

Breitman bizarre beliefs such as being part of a new society, secret organizations of which he suspected Mr. Allcroft, the victim, may have been a part. He described going to Mr. Allcroft's home although he had no recollection of the actual drive there but believing that he had one more task to do and that it was his duty to prove himself so he could be accepted into the secret organization. He described the feeling that after the events had taken place, things had not gone as he had envisioned and was on his way to the police station to let them know he had done his duty but was stopped. [ 87 ] Dr.

Breitman also relied on the police observations that Mr. Ordano was agitated and performing karate kicks in cells while in the Campbell River detachment. She testified that it is quite common to see this behaviour in people who are manic when they are hospitalized. [ 88 ] Dr. Breitman formed the opinion that Mr. Ordano suffers from bipolar affective disorder and at the time of the offence was suffering from an acute manic episode with psychosis, and thus a major mental disorder.

Her opinion was that both the remote and recent history of reported psychiatric symptoms were consistent with this disorder and that the acute mania was likely triggered by acute stress and lack of sleep. She did not find that use of alcohol or other illicit substances played a significant role in his presentation at the time of the offence. She also gave a differential diagnosis of schizoaffective disorder. [ 89 ] Dr. Breitman opined that at the time of the offence, Mr.

Ordano had lost touch with reality and was “unable to appreciate the nature and consequences of his alleged actions and ... would not have known that his actions were wrong.” Analysis [ 90 ] Dr. Breitman’s expert opinion, while highly relevant, is not determinative and it is for the court to decide the issues on the evidence before me: R. v. J.R.V.

(2011) BCSC 176 2 para. 22. [ 91 ] It is trite law that the weight which should be accorded an expert opinion is negatively affected by the extent to which it relies upon facts not proven in evidence. [ 92 ] In assessing the degree to which Dr. Breitman relied upon unproven or proven facts, I accept that Mr. Ordano had previous episodes, particularly in 2007 and 2009 in which his thinking was not rational and that this manifested itself again during his fishing trip

on the Snowfall in 2015. [93] The evidence of Mr. Pool and Ms. Brednow is compelling. They are disinterested and independent witnesses whoseobservations of Mr. Ordano's behaviour was such that it caused them to have concerns for his mental stability. It caused Ms. Brednowsufficient concern that she contacted the RCMP to intercept him on his way home. [94] There is no suggestion that drugs or alcohol played any role in his presentation nor is there any suggestion of motivation causedby animosity between Mr.

Ordano and the Allcroft family. [95] Crown counsel argues that Mr Ordano’s behaviour can be explained by fatigue and points out that fatigue is not a disease of themind or mental disorder. He also argues that in forming her opinion Dr. Breitman relied upon Mr. Ordano's conduct at times other thanthat when the offence occurred and that his mental status at other times is not in issue. [96] While I agree that the issues to be determined relate to Mr.

Ordano’s mental condition at the time of the offence, I am of theview that in assessing that condition, inquiry into his previous and subsequent mental or psychiatric condition is entirely appropriate ifnot essential in understanding the underlying cause of his behaviour. [97] Dr. Breitman properly assessed and relied upon evidence of Mr. Ordano's behaviour and mental state during his commercialfishing trips in 2007 and 2009 and in 2015, just before the offence. I find the evidence given by Ms. Ordano and Mr.

Ordano regardinghis behaviour during and upon his return from the 2015 fishing trip on the Snowfall is consistent with the evidence of Mr. Pool and Ms.Brednow. Dr. Breitman’s diagnosis is also supported by Constable Hobbs’ description of Mr. Ordano's behaviour following his arrestand while in his cell. [98] I find further support for this view by virtue of the fact that in her fitness assessment which took place only a matter of daysafter the offence, Dr. Breitman opined that the psychiatric and vegetative symptoms prior to his incarceration were suggestive ofpsychiatric instability.

I keep in mind that the focus of the fitness assessment is much narrower than an assessment to determine whethersomeone is suffering from a mental disorder such that they are NCRMD. [99] With regard to Mr. Ordano’s discussions with Dr. Fuhr, I have considered whether or not Mr. Ordano’s evidence and statementsto Dr. Breitman were coloured by his desire to ground a defence to his actions. I am satisfied after hearing all the evidence that there wasno such intent and that the factual foundation for Dr. Breitman’s opinion has been established. [100] I accept Dr. Breitman's opinion that Mr.

Ordano, at the time of the offence, was suffering from Bipolar Affective Disorder or,alternatively, a Schizo-Affective Disorder, accompanied by an acute manic episode with psychosis. In determining whether this qualifiesas a mental disorder as that term is meant under s. 16 of the Criminal Code, I am mindful that I must apply a liberal and broad approachto the question and assess whether the condition is such that it impairs the human mind or functioning: R. v. Rabey, (ONCA), 1977 17 O.R. (2d) 1. [101] I accept that at the time of the offence, Mr.

Ordano’s thinking and mental function was impaired and that he had, in Dr.Breitman’s words, lost touch with reality. Accordingly, I find that Mr. Ordano has established that, on a balance of probabilities, hesuffered from a mental disorder at the time of the offence. [102] That does not end the inquiry. I have to consider whether or not his mental disorder rendered Mr. Ordano incapable of eitherappreciating the nature and quality of his actions or from knowing they were wrong. [103] Those terms are disjunctive. Crown counsel argues that Mr. Ordano knew that he was striking and threatening Mr.

Allcroft andthat he had fired a shotgun and, secondly, that Mr. Ordano appreciated the consequences of such actions, namely, pain, fear and the riskof a firearm discharge. He also submits that Mr. Ordano knew that his actions were wrong and points to Mr. Ordano's evidence thatwhen he saw Mr. Allcroft’s girl come into the room “it felt wrong.” [104] Mere knowledge of his actions is not enough. To be criminally responsible, Mr. Ordano must have had the capacity to perceivethe consequences, impact and results of his actions.

Put another way and in the words set out in the McRuer Report as adopted by theSupreme Court of Canada in Cooper: If an accused person is to be deprived of the protection of s. 16, he must, at the time of committing the offence, have had an appreciationof the factors involved in his act and the mental capacity to measure and foresee the consequences of it. [105] Was Mr.

Ordano, by reason of a mental disorder, deprived of the mental capacity to foresee and measure the consequences of hisact? [106] I am mindful that the capacity to foresee and measure consequences does not refer to the ability to appreciate the legalconsequences of

an act. [107] The following passage in R. v. Kirkby, (ON CA), [1985] O.J. No. 166, C.A. is instructive: I wish, however, to guard myself from being thought to hold that in every case where an accused knows, for example, that he is shootinga human being and that the shooting will cause death that the accused is capable of appreciating the nature and quality of the act. Somedelusions may cause the act of killing to assume in the accused's mind an entirely different character.

For example, if an accused suffersfrom a delusion that he is an absolute monarch executing a subject for high treason, the act of killing in his mind has assumed a characterdifferent from murder. In such a case the accused would be exempt from liability under the second arm of s. 16(2) because he wouldbelieve he was acting legally, but, in my view, he would also be exempt under the first arm.

It might be that a person suffering fromparanoid schizophrenia who, under the delusion that his neighbour is killing him and his family with "thought waves", buys a gun andkills the neighbour is exempt from liability under the first arm of s. 16(2). The killing in the accused's mind is transformed by thedelusion from murder to a killing in self defence or to protect his family. It is unlikely that a person subject to a delusion of such

intensity would be able at the time of the killing to apply his mind to the consideration of the legal wrongfulness of the act, and hencewould also be exempt under the second arm of s. 16(2). [Emphasis added] [108] At the time of the offence, Mr. Ordano had grandiose plans and believed he had to carry out one more mission. Mr. Ordanodescribed that he was compelled to go by higher powers and that at the time he believed that “things were unfolding exactly the way theywere supposed to, the way it was designed.” It was only afterwards when he saw Mr.

Allcroft’s little girl in the living room that herealized what had occurred and that something felt wrong. [109] Crown counsel submits that Mr. Ordano knew that he was striking and threatening Mr. Allcroft and that he appreciated theconsequences of those actions - pain, fear and the risk of a firearm discharge. He also argues that Mr. Ordano knew his actions werewrong. [110] I accept that at the time of the offence, Mr. Ordano was suffering from a mental disorder, namely a psychotic episode, and hadlost touch with reality.

With respect, to focus primarily on his awareness or knowledge of his physical actions and that they could causepain, fear and the risk of firearm discharge, would be to take an approach that is too narrow. Mr. Ordano’s subjective belief and purposeis going to the Allcroft residence informs his appreciation of the nature and quality of his actions. At the time of the offence, he wasunder the delusion that he was not only fulfilling a duty but was being compelled by a higher power to do what he did. [111] Dr. Breitman’s opinion is that Mr.

Ordano’s thinking was so impaired that he was unable to appreciate the nature andconsequences of his actions. I am entitled to consider her opinion as well as all the evidence relating to Mr Ordano’s mental capacity. Iam of the view that the mental disorder removed his ability or capacity to appreciate not only the nature but also the quality of hisactions. [112] In the event I am wrong, I will also consider whether Mr.

Ordano was incapable of knowing that his actions were wrong. [113] He agreed in cross examination that he first appreciated that he had done something wrong when he saw the little Allcroft girlcome into the room. This was subsequent to the actions that ground the substance of the offences. For the same reasons set outpreviously, I find that due to his mental disorder, Mr. Ordano was not capable of rationally evaluating his actions and making a rationalchoice.

He was compelled that morning to do what he did as part of larger plan including entrance into a secret organization. [114] His mental disorder accompanied by the acute manic and psychotic episode deprived him of that ability such that it rendered himincapable of knowing that his actions were wrong. Conclusion [115] I find that Mr. Ordano committed the actions that form the basis for the charges. I also find that Mr.

Ordano has established, ona balance of probabilities, that at the time of the offence, he suffered from a mental disorder that rendered him incapable of appreciatingthe nature and quality of his actions or of knowing that they were wrong. [116] I adopt the following words of the Supreme Court of Canada in R. v. Winko, (SCC), 1999 S.C.J. No. 31 atpara. 30: The NCR accused is to be treated in a special way in a system tailored to meet the twin goals of protecting the public and treating thementally ill offender fairly and appropriately.

Under the new approach, the mentally ill offender occupies a special place in the criminaljustice system; he or she is spared the full weight of criminal responsibility, but is subject to those restrictions necessary to protect thepublic. [117] The Criminal Code provisions are in place to ensure that morally innocent offenders are treated rather than punished, whileprotecting the public as fully as possible. [118] As I have found that Mr. Ordano is not criminally responsible due to mental disorder, further disposition of this matter will bedealt with by the British Columbia Review Board under the provisions of

Part XX.1 of the Criminal Code. BY THE COURT The Honourable Judge B. Flewelling Provincial Court of British Columbia