Her Majesty the Queen - v. -, 2011 SKPC 27

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 027 Date: January 21, 2011 Information: 24038419, 36652034 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Lal Appearing: Sandeep Bains For the Crown Don Mullord For the Accused JUDGMENT J.B.J. NUTTING , J [ 1 ] The accused, David Lal, through his counsel pleaded guilty to two charges contained in Information No. 24038419, namely: Count #2: On or about August 5, 2010, at Drake, Saskatchewan, knowingly utter a threat to Kelly Ediger to cause death to Kelly Ediger, contrary to

section 264.1(2) of the Criminal Code ; and Count #3:

At the same date, time and place have in his possession a weapon to wit a knife for the purpose of committing an offence contrary to section 88(2) of the Criminal Code . As well, in relation to further information #36652034, through his counsel, he pleaded guilty to the charge that on or about the 13 th day of August, 2010, at or near Saskatoon, did in committing an assault on Chad Olsen use a weapon, to wit a pair of scissors, contrary to s. 267 (

a) of the Criminal Code . [ 2 ] Prior to his plea, two psychiatrists had independently indicated in a Report to the Court that the accused fulfills the criteria of fitness to stand trial. These psychiatric reports of Dr. Menzies and Dr. Adams, dated August 13, 2010 and September 30, 2010, are filed as exhibits in these proceedings. However, both reports raised the issue of his criminal responsibility by reason of a mental disorder at the time of the offences. [ 3 ] At the commencement of this hearing on January 19, 2011, an Agreed Statement of Facts was filed as exhibit P-1.

Defence counsel then proceeded to call forensic psychiatric evidence on the issue of whether the accused is to be held not criminally responsible for these offences while he was suffering from a mental disorder than rendered him incapable of appreciating the nature and quality of the act or of knowing it was wrong, pursuant to s. 16(1) of the Criminal Code . The burden of proof being on the Defence upon the balance of probabilities his counsel, Mr. Mullord, called Dr.

Stephen Adams, who was qualified as an expert in the area of forensic psychiatry concerning the diagnosis and treatment of psychiatric illness, and as such, entitled to give opinion evidence in this matter. [ 4 ] His report dated September 21, 2010 was filed as exhibit D-1 in these proceedings. The accused had been admitted to the Regional Psychiatric Centre (RPC) on August 16 for examination, assessment and Report to the Court, following an initial assessment as reported by Dr. Robin Menzies on August 13,2 010. This report, was filed as exhibit D-2.

The report is self-explanatory and the last two paragraphs stated as follows: Lal suffers from a psychotic illness, quite possibly schizophrenia, and is experiencing florid psychotic symptoms. He is in need of urgent in-patient psychiatric treatment. I have discussed the case with staff at Saskatchewan Hospital North Battleford, and he has been accepted for admission. If you are agreeable he could be remanded there following his court appearance. In my opinion he fulfills the criteria for fitness to stand trial, but his criminal responsibility may be an issue given his psychotic condition.

This area can be explored further during hospital admission. [ 5 ] Accordingly, Mr. Lal was transported to the Saskatchewan Hospital at North Battleford, but was transferred to the RPC in Saskatoon because of his behavioural problems which could not be accommodated in the Saskatchewan Hospital Forensic Unit. [ 6 ] At the RPC, Dr. Adams spoke with the accused on four different occasions and testified that he had occasion to observe him on the ward in the course of his other duties. While Dr.

Adams confirmed the contents of his report (which speaks for itself); however his conclusion is hereinafter noted, where he states: . . . By all accounts his mental disorder was present prior to the indicated charges and he was acutely ill during the offence. As such, it is likely that his mental disorder had a significant influence on his behaviour during the alleged offence. It is my opinion that David Lal’s mental illness should exempt him from criminal responsibility for the indicated charges. David requires ongoing psychiatric care and follow-up which will include medication treatment. [ 7 ] Dr.

Adams was extensively and closely cross-examined on his report and the basis of his opinion evidence, which is the appropriate responsibility of the Crown. In particular, he questioned Dr. Adams on his reference on two occasions that Mr. Lal’s mental condition was “likely” that of suffering from a psychotic illness with sudden onset; and that it is “likely” that his mental disorder had a significant influence on his behaviour at the time of the commission of these offences. [ 8 ] Dr. Adams testified that the term “likely” was misplaced in the report, and in fact he firmly believed that the accused had a

psychotic illness at the time of the offences which resulted in his conclusions and report to the Court. [ 9 ] He confirmed the point made in his examination-in-chief that the accused knew the act was wrong but it was clearly justified by reason of his psychotic condition, and the influence placed on him by auditory hallucinations from God which were command hallucinations at times, which compelled him to rid the world of evil in order save it. [ 10 ] For example, his attack on Mr.

Olson at the RPC was unprovoked in any manner but consequent on his seeing the anti-Christ in the victim, and the enactment of the command delusion to kill him. [ 11 ] At the conclusion of the hearing, Crown counsel filed the case authority of R. v. Oommen (1984) 2 S.C.R. 507 .

In dismissing the appeal and thus upholding the Court of Appeal’s decision in ordering a new trial where the trial judge had rejected the defence of insanity on the erroneous view that the accused in that case had the general capacity to know right from wrong without consideration of the expert evidence that a “mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act” (as stated in the decision of Justice McLachlin at page 8 of the judgment filed by the Crown). [ 12 ] Of significance, in applying the expert opinion evidence of Dr.

Adams in this case, is the concluding comment of Justice McLachlin, where, inter alia, she states: This delusion would have deprived the accused of the ability to know that his act was wrong; in his eyes, it was right. Second (and this may be to say the same thing), there was evidence capable of supporting the conclusion that the accused’s mental state was so disordered that he was unable to rationally consider whether his act was right or wrong in the way a normal person would.

The trial judge found that while the accused was generally capable of knowing that the act of killing was wrong, he could not apply that capacity fo distinguishing right from wrong at the time of the killing because of his mental disorder. He further found that because of that disorder, Mr. Oommen was deluded into believing that he had no choice but to kill. These findings are consistent with the conclusion that Mr. Oommen’s mental disorder deprived him of the capacity to know his act was wrong by the standards of the ordinary person.

As the cases make clear s. 16(1) of the Criminal Code embraces not only the intellectual ability to know right from wrong, but the capacity to apply that knowledge to the situation at hand. [ 13 ] In the present case, on the whole of the expert opinion evidence, taken in context, I view the Defence as having met the burden of proof, on the balance of probabilities, that this accused cannot be held criminally responsible for these offences on account of his mental disorder at the time of their commission.

Even though he did not follow through on his deluded and disordered intention to stab Kelly Ediger to death, this does not, in my view, detract from his disordered mental condition at the time of the offence charged. [ 14 ] While he obviously had a general confused knowledge of it being wrong, the forces of the psychotic hallucinatory delusions commanding him to destroy evil and Satan in another person was, on the whole of the evidence presented, the right action to him at the time by reason of his disordered mental condition. [ 15 ] Therefore, pursuant to s. 16(1) of the Criminal Code , the Court finds the accused is not criminally responsible for these offences by reason of his suffering a mental disorder at the time of committing the offences, which in fact rendered him incapable of a rational perception and a rational choice about the rightness or wrongness of he act. [ 16 ] While the acts of the accused, for which he is charged, were not specifically argued by either counsel; however in the context of the Statement of Facts it can be taken that there was no dispute about the commission of the offences charged.

Accordingly, under

section 672.34 of the Code , the Court appears to be tasked with also rendering a verdict that the accused committed the acts for which he is charged, although not criminally responsible, and therefore I so find.

[ 17 ] Further, upon this finding and verdict of this Court that the accused, David Lal, is not criminally responsible on account of mental disorder; the Crown and Defence had previously recommended that if it should be the verdict, the Court, rather than make a disposition, decline to do so and refer the matter to the Review Board. [ 18 ] Under all the circumstances, I fully agree with that recommendation. Accordingly, pursuant to subsection (1.1) of

section 672.45 of the Criminal Code , I am further ordering an expedited preparation of a transcript of all these proceedings, including the hearing held on Wednesday, January 19, 2011 and together with the Agreed Statement of Facts, the Informations and the Court documents pertaining thereto, and all exhibits be transmitted to the Review Board having jurisdiction. A true copy of all such documents are to be retained on the Court files. [ 19 ] Therefore, the accused is ordered to be further detained and remanded back to the Regional Psychiatric Centre pending a disposition by the Review Board. _________________________ J.B.J. Nutting, J