Her Majesty the Queen - v. -, 2017 SKPC 89

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: September 5, 2017 2017 SKPC 089 Information: 44667720 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ward Tanner Olchowski Appearing: Ms. V. Adamko For the Crown Ms. M.T. Bayda For the Accused DECISION D.C. SCOTT J Introduction [ 1 ] On July 3, 2016, Ward Olchowski was charged with operating a motor vehicle while being pursued by a peace officer and failing to stop as soon as was reasonable, in order to evade the peace officer, contrary to s. 249.1(1) of the Criminal Code .

[ 2 ] On that same day he was charged with operating a motor vehicle in a manner dangerous to the public, contrary to s. 249(1) (

a) of the Criminal Code . [ 3 ] Mr. Olchowski was also charged with a number of traffic violations. [ 4 ] Mr. Olchowski raised the defence of not criminally responsible. Accordingly, he has the burden of proving on a balance of probabilities that he was suffering from a mental disorder and as such was incapable of appreciating the nature and quality of his actions or knowing his actions were wrong: s. 16 Criminal Code . [ 5 ] The hearing was held on August 28, 2017. The following evidence was presented at that time: 1) An Agreed Statement of Facts, with reports of Cst. Connell and Sgt.

Barbar attached as appendices. 2) Discharge Summaries from the Saskatoon Health Region. 3) Four reports authored by Dr. Curtis Chicoine, which include a psychiatric assessment and follow-up assessments. 4) A psychiatric report by Dr. Mansfield Mela dated April 20, 2017; 5) Dr. Mela’s curriculum vitae. [ 6 ] In addition, Dr. Mela testified at the hearing. [ 7 ] The accused did not testify. However, as in R v Lesann 2014 SKQB 332 , 455 Sask R 1 , Mr.

Olchowski ’ s evidence about what happened has been put before the Court through individuals with whom he interacted, including police and psychiatrists who interviewed him. The Agreed Statement of Facts, with police reports attached, along with the medical reports were admitted for the truth of their contents by consent of Crown and Defence. It was also agreed that the Court could rely on the medical records. [ 8 ] At the conclusion of the hearing, the Crown accepted Dr. Mela ’ s evidence and agreed that Mr. Olchowski had met the burden of proof under s. 16 of the Criminal Code on a balance of probabilities.

Circumstances of the Offences [ 9 ] As mentioned, an Agreed Statement of Facts was filed, along with the reports of Saskatoon Police Service Cst. Connell and RCMP Sgt. Barbar. Mr. Olchowski admits the facts contained in those reports for the purpose of this hearing. [ 10 ] Briefly summarized, on July 3, 2016, the accused was initially observed driving a black BMW motor vehicle southbound on Highway 11, north of Rosthern, Saskatchewan. He was driving erratically and at times reaching speeds of 211 kilometres an hour. He cut off some vehicles and forced others off the road.

He passed vehicles on the right shoulder, including an RCMP vehicle travelling ahead of him with its emergency lights activated. His route included the highway and gravel roads. Near the town of Warman, he failed to stop at a four-way stop. [ 11 ] Cst. Connell, Sgt. Barbar and other RCMP officers were in pursuit of Mr. Olchowski’s vehicle with emergency lights on the police vehicles activated, although at times they lost sight of him. The officers attempted to stop Mr. Olchowski using stop sticks and a

roadblock without success. [ 12 ] Mr. Olchowski made his way to Saskatoon. Once there, he continued to drive at excessive speeds in residential areas where pedestrians and children were in close proximity. [ 13 ] At no time did Mr. Olchowski stop for the police. Officers followed and attempted to stop Mr. Olchowski from approximately 5:13 p.m. until he was located at his residence, where he was arrested at 6:25 p.m. His arrest was uneventful and he was subsequently released. Circumstances preceding the offences [ 14 ] Dr.

Mela’s report sets out in some detail, the circumstances leading up to the offences, as conveyed to him by Mr. Olchowski. A couple of days prior to the offences, Mr. Olchowski was at the lake with his family. He began to develop strange thoughts, such as that a container of water could become crystal methamphetamine. When he did not experience any effect from drinking the water, he consumed hand soap, shampoo and bath soap. He believed he could control the outcome of sports scores by his thoughts. He believed his family members were involved in the drug trade and that his father had molested his nephew.

He then became convinced that his uncle had molested him. He developed the conviction that he must find his uncle in Saskatoon and kill him. He felt a sense of urgency in getting to Saskatoon quickly to carry out his mission. Circumstances following the offences [ 15 ] After his release from custody, Mr. Olchowski became convinced he was a rock star and member of a Swedish band that had come to Saskatoon to play at the Jazz festival. He moved through various festival events as though he were a performer. He also reverted to eating soap found in a bathroom.

His thoughts turned to harming himself, believing that by doing so, he would harm his uncle. Later, he went to a hotel where he became convinced that a girl he had met from Australia had come to visit him. He looked through the hotel, knocked on a guest room door and mistakenly believed the girl who answered was the person he had been seeking. [ 16 ] On July 4, 2016, the day following the driving offences, Mr. Olchowski was taken by police to the Dubé Centre for Mental Health at the Royal University Hospital. Mr. Olchowski was admitted and certified on July 5, 2016 and was released on July 25, 2016.

Saskatoon Health Region Discharge Summaries [ 17 ] The Dubé Centre reports indicate Mr. Olchowsky exhibited decreased sleep, increased energy, risky behavior, delusions, and manic episodes in relation to a mood disorder. The report confirms Mr. Olchowski’s diagnosis of schizophrenia in January 2016. Dr. Chicoine ’s reports [ 18 ] On August 4, 2016, Mr. Olchowski was assessed by Dr. Chicoine, who also saw Mr. Olchowski at follow-up visits on September 2, 2016, September 30, 2016 and October 26, 2016. [ 19 ] According to Dr. Chicoine, Mr. Olchowski’s symptoms are predominately psychotic in nature.

He harbours lingering delusional beliefs. Dr. Chicoine considered a diagnosis of substance-induced psychotic disorder versus schizophrenia, along with cannabis use disorder, alcohol use disorder and Attention Deficit Hyperactivity Disorder (ADHD). He placed Mr. Olchowski on a Community Treatment Order to ensure Mr. Olchowski would take his medication. By October 26, 2016, Dr. Chicoine was of the view that Mr. Olchowski does suffer from schizophrenia.

Dr. Mela ’s evidence [ 20 ] Dr. Mela, a forensic psychiatrist, testified at the hearing. He was qualified as an expert relating to mental disorders and criminal responsibility in relation to such disorders. [ 21 ] Mr. Olchowski was referred to Dr. Mela for a complete psychiatric assessment to determine whether he suffered from a mental disorder so as to exempt him from criminal responsibility. Dr. Mela saw Mr. Olchowski and prepared a report dated April 20, 2017. [ 22 ] It is Dr. Mela’s opinion that Mr.

Olchowski suffers from schizophrenia, described as a chronic mental condition, which manifests in thoughts, perception and behaviour. In someone with schizophrenia, thoughts may arise from the misinterpretation of events. Perception is affected when the individual experiences stimuli, which may not be present. An individual may act on their mistaken thoughts, perceptions and beliefs. Typically, an individual with schizophrenia will move from an idea to a conviction which has no basis. They will construct a delusion, which leads to preoccupation and distress.

The individual will then act on the conviction or delusion. [ 23 ] It is Dr. Mela’s opinion that at the time of the commission of the offences, Mr. Olchowski’s mental state was impaired to such an extent as to interfere with his capacity of estimating the consequences of his actions or considering that what he was doing was wrong. [ 24 ] Mr. Olchowski showed features of “delusional thinking, erroneous beliefs about his abilities and bizarre beliefs about events relating to him”, all of which occurred before, during and after the offences. Due to the strength of conviction with which his beliefs were held, Mr.

Olchowski was compelled to act on those beliefs. [ 25 ] According to Dr. Mela, when Mr. Olchowski left the lake for Saskatoon in his vehicle, he was convinced his uncle had molested him in the past. This belief was the result of his mental disorder. He believed the problem could only be resolved if he were to meet and kill his uncle. Although his reasoning was irrational, he was motivated to act on his belief with a sense of urgency. His mental state at the time was so affected that he was willing to take any risk, including driving dangerously.

He understood he was required to stop for the police but did not respond. At one point, he interpreted their presence as providing him with an escort on his mission. [ 26 ] It is Dr. Mela’s opinion that at the time of driving, Mr. Olchowski was suffering from the effects of schizophrenia. When he was driving, his mental condition influenced his judgment and caused him to act on the basis of mistaken beliefs and not on facts. He could not assess the requirement to stop when pursued by the police. His mission to find and kill his uncle was urgent and could not be stopped. [ 27 ] According to Dr. Mela’s opinion, Mr.

Olchowski was capable of appreciating what he was doing when he was driving dangerously and evading police. However, because of Mr. Olchowski’s mental state, he believed he was morally justified in his actions and that anyone in his circumstances would do what he was doing. Therefore, in his mind his actions were not morally wrong. [ 28 ] It is Dr. Mela’s opinion that Mr. Olchowski’s schizophrenia began to form during adolescence. If not treated, Mr. Olchowski is likely to relapse. Discussion [ 29 ]

Section 16 of the Criminal Code provides:

(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 ofsubsection (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 onthe party that raises the issue. [30] “Mental disorder” is defined in s. 2 of the Criminal Code as a “disease of the mind”. [31] The exemption under s. 16 applies only to those who suffer from a disease of the mind and because of that disease areincapable of appreciating the nature and quality of their act or are incapable of knowing that the act was wrong: R v Lepage (1997), (ON CA), 119 CCC (3d) 193, 152 DLR (4th) 318 (ONCA) para 27 [Lepage]. [32] As such, s. 16 establishes a two-stage test.

First, the accused must have suffered from a disease of the mind at the time of thealleged offences.

Second, the disease of the mind must have rendered the accused incapable of either appreciating the nature and qualityof their act or omission or knowing that the act or omission was wrong. [33] An inability to appreciate the nature and consequences of the criminal act is concerned with the capacity of appreciating thephysical nature, character and consequences of the act: R v Simpson (1977), (ON CA), 35 CCC (2d) 337 (ONCA);Lepage para 28. [34] Knowing the act is wrong requires the lack of capacity at the time of the act to rationally decide whether the act was right orwrong and to make a rational decision whether to do the act: R v Oommen (1994), (SCC), 91 CCC (3d) 8 (SCC). “Wrong” refers to something which a person knows he or she ought not to have done: R v Chaulk (1990), (SCC), 62CCC (3d) 193 at 230 (SCC); Lepage para 29. [35] Both requirements in the second stage of the test describe a profound departure from the norm: Lepage, para 28.

Mental Disorder [36] Dr. Mela and Dr. Chicoine appear to agree that Mr. Olchowski suffers from paranoid schizophrenia and substance usedisorders and other disorders. More particularly, Dr. Mela is of the view that at the time of the offences, Mr. Olchowski wasexperiencing significant effects of schizophrenia. [37] It was significant to Dr. Mela that Mr. Olchowski’s beliefs were ameliorated by ongoing treatment. Further, in spite of nothaving used illicit substances for approximately twelve months at the time of his assessment, Mr.

Olchowski continued to hold somecomponents of the delusional belief system present at the time of the offences, indicating Mr. Olchowski’s delusions were the result of amental disorder rather than substance use. [38] I am satisfied that at the time of the offences, Mr. Olchowski suffered from a disease of the mind. Was Mr. Olchowski incapable of appreciating the nature and quality of his actions or of knowing that his actions were wrong? [39] I accept Dr. Mela’s opinion that at the time of the offences, it was Mr. Olchowksi’s schizophrenia, which caused in him

severe, bizarre and erroneous beliefs about his ability, identity and events relating to him. He acted on those beliefs due to the strengthof their conviction. [40] According to Dr. Mela, Mr. Olchowski’s mental state at the time was affected in such a way that he was willing to take therisk of driving dangerously. [41] Dr. Mela testified that Mr. Olchowski was capable of appreciating what he was doing. He knew he was driving at excessivespeeds. He understood he was required to stop for the police, but his mission was of such an urgent nature that he did not respond.

Hewas compelled by the one irrational belief that he had to kill his uncle. [42] I accept Dr. Mela’s opinion that at the time of the commission of the offence, Mr. Olchowski’s mental state wassignificantly impaired so as to interfere with his capacity to estimate the consequences of his actions or to consider that what he wasdoing was wrong within the meaning of s. 16(1) of the Criminal Code. [43] Based upon Dr. Mela’s evidence I conclude that, while Mr.

Olchowski was capable of appreciating the nature and quality of his actions and omissions, he did not know his actions were wrong, believing them to be morally justified. As such, his assessment ofthe situation marked a profound departure from the norm. Due to his mental state, he was incapable of rationally deciding whether hisactions were right or wrong and whether or not to act. Conclusion [44] Based upon the Agreed Statement of Facts, Dr. Mela’s testimony and the medical reports, I am satisfied that Mr. Olchowskicommitted the acts that formed the basis of the offences with which he is charged. [45] Mr.

Olchowski was not capable, however, of knowing that his actions were wrong. At the material time, he did nothave the level of autonomy or rationality required to attract criminal responsibility: R v Blanchard 2011 SKQB 195, 370 Sask R 83; R vBouchard-Lebrun 2011 SCC 58 , [2011] SCJ 58, [2011] 3 SCR 575. [46] I am satisfied that at the time of the offences Mr. Olchowski was suffering from a mental disorder, so as to exempthim from criminal responsibility by virtue of s. 16(1) of the Criminal Code. [47] I therefore render a verdict that Mr.

Olchowski committed the acts referred to, but is not criminally responsible because of amental disorder: s. 672.34 Criminal Code. [48] I decline to hold a disposition hearing. However, I direct that a transcript of these proceedings, a copy of this decision, alongwith the evidence and medical reports in this hearing be sent without delay to the Review Board, pursuant to s. 672.45(1.1) of theCriminal Code. ___________________________ D.C. Scott J