R. v. Mishibinijima, 2018 ONCJ 96

ONTARIO COURT OF JUSTICE CITATION: R. v. Mishibinijima , 2018 ONCJ 96 DATE: 2018 02 13 Gore Bay BETWEEN: HER MAJESTY THE QUEEN — AND — LEVI MISHIBINIJIMA Before Justice V. Christie Heard on January 30, 2018 Reasons for Judgment released on February 13, 2018 D. Beaton.............................................................................................. counsel for the Crown J. Weppler.................................................. counsel for the defendant Levi Mishibinijima CHRISTIE J.: [ 1 ] On January 30, 2018, Mr. Mishibinijima pleaded not guilty to a charge of aggravated assault.

The charge reads as follows: That Levi Alexander Michael Mishibinijima on or about the 14 th day of August, 2017 at the Village of Wikwemikong in the said region did endanger the life of Joseph Michael Gerald Mandamin thereby committing an aggravated assault contrary to

Section 268 of the Criminal Code . Agreed Statement of Facts [ 2 ] Following the plea of not guilty, an agreed statement of facts was entered as Exhibit 1. The facts were as follows:

(1) On August 14, 2017, Wikwemikong Police Services (WPS) were dispatched to a reported stabbing which occurred at 2152 Kaboni Road.

(2) Officers attended to 2166 Kaboni Road in Wikwemikong.

(3) The officers had prior information that from the Communications Centre (PCC) that Levi Mishibinijima was the suspect.

(4) At 2166 Kaboni Road the officers spoke with Darrin Mandamin who advised that the Accused fled on foot.

(5) The officers attended to 2152 Kaboni and observed Michael Mandamin. He had his left hand on his neck and officers noticed blood down the front of his shirt.

(6) Mr. Mandamin advised police that the Accused had stabbed him from behind in the neck and then fled the area. He further advised that the Accused was wearing all black clothing and had fled across a field.

(7) The officers maintained observation on a trail at the end of a field where it was believed that the Accused had fled.

(8) Mr. Mandamin was transported by ambulance to Little Current for medical attention.

(9) The WPS requested assistance from the Ontario Provincial Police (OPP) as well as the UCCM Police (UCCM). Officers from both those forces were dispatched to Wikwemikong and a search commenced.

(10) At 9:22 pm, the PCC advised that an April Simon called and that she advised the Accused had contacted her from a phone number she recognized as belonging to Kyle Johnson who resides at 482 Wikwemikong Way.

(11) Police attended to that location and the Accused was located in the driveway.

(12) The accused was arrested at 9:34 pm.

(13) The Accused blurted out that he was a murderer and that he killed his brother (the victim Mandamin) as the victim had killed his father.

(14) The Accused was cautioned to say nothing more, read his rights and transported to the detachment.

(15) Police interviewed Tim Pangowish who stated he observed the Accused run at Mr. Mandamin from behind. He heard impact noises and observed the Accused to strike Mandamin.

(16) Pangowish did not see any injuries or blood but did leave before police arrived. He further heard Mandamin to say that the Accused was crazy. He further heard the Accused say “I know you killed my father”.

(17) At 2:15 am, the Accused was interviewed under caution. He told St. Cooper that he was getting a “weird vibe” that was telling him to kill, something like a flare. Levi Mishibinijima said it was like, “I just thought it was like Bear Witch or Bear Walker, bad, bad vibes.” He said that it was “like kinda taking control of me”.

(18) Levi Mishibinijima told Sgt. Cooper that he could hear his father saying “Gwissehn, gwissehn” which means son in Anishnaabe. His father was telling him that the victim had hung him and that he needed to be free of him. Then he went on to say that the victim said something “like I killed your father or your father’s dead in your mind control”. He could hear his dad speaking. Then Levi Mishibinijima said, “….all I could hear is go ahead Gwiss stab him get it over with and leave and something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him.”

(19) Levi Mishibinijima was asked by Sgt Cooper who did you tell that to and Levi Mishibinijima replied, “My father was telling me that”.

(20) The knife used in this attack was taken from the Accused’s grandmother’s house.

(21) Mr. Mandamin was transported to Sudbury for further medical treatment.

(22) The Emergency Room Note from Manitoulin Health Centre dated August 14, 2017 indicates that Mr. Mandamin lost between 600 to 800 cc’s of blood due to the nature of the dressings when he arrived at the hospital and what was suctioned from the wound. The report notes that the wound was in the neck, the wound direction was vertical and approximately 2 cm in length. [ 3 ] The Court was further advised that Mr. Mandamin recovered from his injuries. [ 4 ] Based on this agreed statement of facts, and as conceded by the parties, there is no question that Mr. Mishibinijima committed an aggravated assault on Mr.

Mandamin at the time and place indicated. The Court had no difficulty concluding this beyond a reasonable doubt. Hearing to Determine Criminal Responsibility [ 5 ] Counsel on behalf of Mr. Mishibinijima then submitted that his client should be found not criminally responsible of this offence on account of mental disorder. Evidence and arguments were then heard. [ 6 ] Submitted by the defence, the Court received a psychiatric report dated November 14, 2017 authored by Dr. Beth Eayrs, a Consultant Forensic Psychiatrist to Waypoint Centre where Mr. Mishibinijima was incarcerated at the time of the hearing.

This report was marked as Exhibit 2 and a copy of Dr. Eayrs’ curriculum vitae was marked as Exhibit 4. [ 7 ] Dr. Eayrs was also called as a witness by the defence. She was qualified by the Court to give expert evidence. She was specifically qualified as a forensic psychiatrist. She testified that she had been conducting Form 48 assessments regularly for the past 1.5 years and prior to that she would do these assessments on an occasional basis. Dr. Eayrs, at the time of her testimony, held a faculty appointment at the University of Toronto as a lecturer and supervisor of residents and medical students.

In addition, Dr. Eayrs was a psychiatrist member of the Ontario Review Board. The Crown agreed that Dr. Eayrs was qualified to give expert evidence in the area of forensic psychiatry. [ 8 ] Dr. Eayrs testified that she had been the treating psychiatrist for Levi Mishibinijima. She first met him when he was admitted to Waypoint on September 6, 2017. Dr. Eayrs referred to page 7 of her report which stated: Mr. Mishibinijima evinced signs of psychotic illness from the time he arrived at Waypoint on September 6, 2017. During the admission interview, he was found to be occasionally responding to internal stimuli.

There was some disorganization of thought processes, though insufficient to cause concern about fitness to stand trial. Later that same day, however, he was seen laughing to himself and running in the hallway. He invaded the personal space of a co-patient, who warned him not to touch him. A physical altercation ensued, the beginning of which was unwitnessed by staff. Upon being secluded, Mr. Mishibinijima winked and made kissing gesture towards female staff. He was also seen laughing to himself, and making facial grimaces and grunting noises for no apparent reason. He was also

seen licking his window. [ 9 ] Dr. Eayrs clarified that this was about 2 weeks after the material time when the stabbing occurred. [ 10 ] When asked whether Mr. Mishibinijima was suffering from a psychosis, Dr. Eayrs responded in the affirmative. She explained that it took many weeks, if not several months, for his psychosis to resolve. She explained that it was a gradual resolution. Dr. Eayrs explained that during that time, he was not using cannabis or other intoxicating substances.

She further explained that she did not have a lot of information from before the incident and she did not know how long he was in that state leading up to the incident. However, Dr. Eayrs, relying on a self-report from Mr. Mishibinijima, believed that the psychosis was present for a few months or longer. Based on all of this information, Dr. Eayrs found it reasonable to assign a diagnosis of schizophrenia. [ 11 ] Dr. Eayrs did not believe there was any evidence to suggest this was a drug-induced psychosis. She did state that Mr.

Mishibinijima gave conflicting reports about when he last used cannabis and explained that cannabis can cause psychosis or be aggravating. Dr. Eayrs testified that she did not get any information that he had been using on the day of the index offence or using substantial amounts in the weeks leading up to the offence. With respect to alcohol, Dr. Eayrs testified that, at times, Mr. Mishibinijima denied using alcohol at the time, however at other times, he referred to drinking a beer or even two beer. Regardless, there was nothing to suggest excessive alcohol at the time of the index offence. [ 12 ] Dr.

Eayrs was provided with the transcript of the taped police interview with Levi Mishibinijima from August 15, 2017. She clarified that she had not reviewed the interview prior to preparing her report, but rather only a case file synopsis. Dr. Eayrs stated that the content of the interview reinforced the conclusions that she came to in her report, as to Mr. Mishibinijima’s state of mind at the time of the index offence. She stated that it reinforced her conclusions in two ways:

(1) The statements to Sgt. Cooper show a disorganized state of mind which is a typical feature of a psychotic episode and is common of untreated schizophrenia.

(2) The statements demonstrate paranoia toward the victim. He was influenced by hearing voices, seeing his father’s spirit, and believed his father was speaking to him at the time, telling his what to do. Thought insertions are features of psychotic illness that point to a disturbed state of mind [ 13 ] Dr. Eayrs was asked whether Mr. Mishibinijima was acting on command when he was stabbing Mr. Mandamin, to which she responded in the affirmative. She indicated that Mr. Mishibinijima reported that he heard a voice telling him to stab the victim, which Dr. Earys described as command hallucinations.

She also referred to the fact that he used the phrase “mind control” in his interview with police (p. 23). Dr. Eayrs explained that he believed someone can control his mind and that this is another symptom that occurs when someone is psychotic. [ 14 ] In the “opinions and recommendations”

section of the report, commencing at page 9 of 11, Dr. Eayrs provided the opinion that Levi Mishibinijima likely suffered from a mental disorder on August 14, 2017. Dr. Eayrs confirmed this in her testimony, however, she indicated that it is difficult to say this directly in the report. She explained that she did not have any collateral information from friends or family, despite attempts that were unsuccessful, and there was simply no information about Mr. Mishibinijima’s state of mind leading up to the events. However, Dr.

Eayrs stated that it was reasonable to extrapolate backwards given that 3 weeks after the events, Mr. Mishibinijima was still psychotic and agitated and being influenced by his psychotic experience. He was not able to ignore or set aside his hallucinations and his behaviours were being influenced by the hallucinations. [ 15 ] In Dr. Eayrs’ opinion, Levi Mishibinijima was psychotic at the material time of these events. When asked whether this mental disorder would have rendered him incapable of appreciating the nature and quality of the act, she replied “no”. She said, “I think he knew what he was doing…..

I think he knew he was stabbing a human being.” However, Dr. Eayrs stated, “…..but he was acting under the influence of his mental disorder…..He was not able to access rational choice…..He was not able to consider the wrongfulness of his actions.”. She stated that Mr. Mishibinijima was overcome by the experience of hearing his father’s voice and getting vibes. He was in the grip of a marked psychosis. [ 16 ] Dr. Eayrs explained that when Levi Mishibinijima came to Waypoint, he did not get medicated for a period of time, and it was clear that he was very psychotic during this time. Mr.

Mishibinijima asked for a consent and capacity hearing which delayed the process. His treatment with Paliperidone began in early October 2017. She said that he has responded favourably to the medication. For a number of weeks after beginning the medication, he was still psychotic with good and bad days, but as time went by and the dosage increased, those days became fewer and fewer. Over the last 2 full months, there have not been any symptoms of psychosis. [ 17 ] The last time Dr. Eayrs met Mr. Mishibinijima was the week before the hearing on January 30, 2018. She described him as pleasant, calm and cooperative.

Dr. Eayrs explained that there was still a certain vagueness to his thought and how he expressed thoughts, but his thoughts were more organized and his thought process was improving. There was no indication of paranoia and he was not distracted by internal stimuli, in other words, not hearing voices. [ 18 ] Finally, Dr. Eayrs stated that if the court did find Mr. Mishibinijima not criminally responsible by reason of a mental disorder, it was her opinion that he still requires a secure facility, however less secure than what he has been in.

She confirmed that a bed is still available for him back at Waypoint for the time being. She also stated that if the Court found him not criminally responsible but then adjourned for the Ontario Review Board to make a decision about disposition, that would take place at Waypoint and she would be present to provide evidence. [ 19 ] In cross-examination, Dr. Eayrs confirmed that they were unable to obtain collateral information from family and friends. Also, there was no past medical information available, despite attempts made to retrieve such information. [ 20 ] Dr.

Eayrs was asked about the cumulative effect of drug and alcohol use by Mr. Mishibinijima, which was also referred to at page 2 of her report. She replied that it was her impression that he was describing heavy use of alcohol between 18 and 20 years of age, but that it was her impression that he had not used as much alcohol since then. She did not believe that alcohol contributed to his mental

state. Dr. Eayrs believed, however, that it was more likely that the regular and significant use of cannabis would have contributed to theeventual emergence of psychotic illness. She explained that regular cannabis use throughout teenage years is a factor that can contributeto the emergence of a psychotic illness. Dr. Eayrs testified that the human brain is continuing to develop and mature up to the age of 25and that this amount and extent of substance use, particularly the cannabis use, has had a negative effect on his brain, and would play acontributory role in psychosis. Dr.

Eayrs could not say whether or not he would have had the illness without using substances. [21] Dr. Eayrs testified that she was “pretty certain” that he was psychotic at the material time, and that the transcript of his policeinterview reinforced that opinion. She agreed that when a person is sliding into a psychotic state, it would start minimal and progressover time and agreed that the act of stabbing someone in August is an extreme action. Yet, Dr.

Eayrs also agreed that in the days andweeks prior, they were not able to locate anything to show his behaviour was progressing toward a psychotic state, other than somecomments from his self-report. There were no other sources of information that would assist such as family, police reports, or medicalfiles. It was suggested to Dr. Eayrs that the symptoms / behaviour could have started on the day in question and went forward.

Sheagreed that it was possible but unlikely given his state of mind as evidenced from the interview on August 15 which showed his thoughtsto be very disorganized and with reference to a variety of psychotic symptoms that continue for weeks after. Dr. Eayrs stated, “It is likely that he was in a similar state of mind on August 14 as he was on the 15th”. She described this as an endogenous mental disorder.

She also pointed to the fact that the psychotic symptoms continued for weeks after the material time, in the absence of the use ofsubstances, such as cannabis, cocaine or alcohol, which also points to the existence of an endogenous mental disorder. She stated thatthe duration, severity, presence of agitating behaviour that did not resolve until he received treatment, all supported her opinion that thispsychotic state of mind was present on August 14 and likely weeks or months leading up to that point. [22] It was suggested to Dr. Eayrs that when they attempted to medicate Mr.

Mishibinijima initially, he refused and requested ahearing which might suggest a logical thought process. Dr. Eayrs did not agree with this suggestion and stated that the way it unfoldedsuggested the exact opposite. When the Rights Advisor came to meet him, Mr. Mishibinijima was not able to indicate very clearly to theRights Advisor what he wanted but according to the Rights Advisor, he was not happy about receiving medication. Dr. Eayrs clarifiedthat there was no clear request for a hearing from Mr. Mishibinijima. [23] In re-examination, Dr. Eayrs clearly stated that in her opinion, Mr.

Mishibinijima appreciated the nature and quality of what hewas doing but could not act on rational choice to think through moral and legal wrongfulness. An acute psychotic state prevented himfrom doing that. The factors that assisted Dr.

Eayrs in understanding his state of mind at the time were the severity of the psychosiswhen he arrived at Waypoint, the evidence from the jail that he was demonstrating psychosis there, information from the case filesynopsis, the fact that the psychosis was getting worse, his self-report leading up to the material time, and the absence of any informationthat he was using intoxicating substances at the time. All of this led Dr. Eayrs to conclude that Levi Mishibinijima was acutely psychoticwith an endogenous (entrenched) mental disorder. [24] In addition to the testimony of Dr.

Eayrs, the Court reviewed and considered the entirety of the psychiatric report datedNovember 14, 2017, which was introduced by the defence on behalf of Mr. Mishibinijima and marked as Exhibit 2. The followinginformation is noted from the report:

(1) The personal background

section of the report states that during the first part of the admission to Waypoint, Mr. Mishibinijimawas so disorganized that he was unable to provide Waypoint staff with accurate contact information for his mother or other familymembers. Therefore, the personal background

section was a compilation of information obtained from Mr. Mishibinijima himself andfrom the information provided by the Sudbury Jail.

(2) The report then provides information relating to Mr. Mishibinijima’s childhood and education, employment and residence,criminal history, substance use, medical history, and criminal history.

(3) Mr. Mishibinijima provided a self-report to the Psychometrist on November 2, 2017 and to Dr. Eayrs on November 10, 2017. [These statements are not proof of the truth of the facts stated, however, statements of a preposterous nature may be relevant to the issueof mental disorder and criminal responsibility. – see R. v. Kirby (1985), (ON CA), 21 C.C.C. (3d) 31 (Ont. C.A.) at p.53; R. v. Dobson, 2015 ONSC 2865, para 128-129]

(4) Evidence of mental illness was taken from the file from the Sudbury Jail, his course in hospital at Waypoint from September 6,2017 to November 10, 2017, and a draft psychology report which included the results of some testing. Collateral information fromfamily was not available. The following is noted: (

a) File Information from the Sudbury Jail – On August 24, 2017, Mr. Mishibinijima was seen by Dr. Veluri who noted that theinterview was very difficult because Mr. Mishibinijima was unable to focus. He was laughing for no particular reason, and displayedfacial expression out of keeping with the topic of conversation, that is, he would burst into laughter when talking about his father’sdeath. His thinking was described as disjointed and thought disorder was evident. (

b) Course in hospital, Waypoint, September 6, 2017 to November 10, 2017 – Mr. Mishibinijima evinced signs of psychotic illnessfrom the time he arrived at Waypoint on September 6, 2017. During an attempted Consent and Capacity hearing, he became agitated andspat at two nursing students who were observing. When this hearing was resumed a few days later, he was too unwell to come out of theseclusion suite and the meeting had to take place in the corridor outside his room. Until treatment with antipsychotic medication wascommenced on October 7, 2017, Mr.

Mishibinijima exhibited a fluctuant pattern of intense psychosis. The overall trajectory was that ofpsychosis deterioration. Mr. Mishibinijima was found incapable of making treatment decisions on September 15, 2017. FromSeptember 15, 2017 to September 18, 2017, he did accept 3 mg oral Paliperidone twice daily, and showed some improvement. Thetreatment was stopped when the Rights Advisor gave notice on September 18, 2017 that Mr. Mishibinijima wanted a hearing. A hearingwent ahead and treatment with oral Paliperidone was begun with Mr. Mishibinijima’s cooperation in early October 2017.

Since a doseof 12 mg oral Paliperidone was achieved in mid-October, Mr. Mishibinijima has shown fewer and fewer episodes of intense psychosis. (

c) Psychology Report (Draft) – The report had not been reviewed by a psychologist but portions of it were included in thepsychiatric report because: 1) it provided some information about Mr. Mishibinijima’s recollection of the material time, 2) it indicated

some ongoing cognitive impairment; and 3) testing discovered that there was no suggestion of an attempt to malinger mental illness.

(5) Finally the report contains an “opinions and recommendations”

section which states in part as follows: (

a) Following a period of treatment, Mr. Mishibinijima was assessed with respect to fitness on November 10, 2017 and was deemed fit from a psychiatric perspective. (

b) Mr. Mishibinijima continues to exhibit some disorganization of thought processes. There is still occasional evidence of his responding to internal stimuli, but both features of his illness have shown substantial improvement since treatment was commenced. (

c) Mr. Mishibinijima remained floridly psychotic for many weeks after arriving at Waypoint. He was not using substances during this interval. The duration of psychosis in the absence of substance use qualifies him for a diagnosis of at least Schizophreniform Disorder and if his symptoms persist for much longer, the more accurate longitudinal diagnosis will be Schizophrenia. (

d) Mr. Mishibinijima indicated that he believes he is special on account of the experience of hearing voices, including special in a moral way. He continues to think this way about himself in spite of the abatement of voices, and it is likely that he possessed this psychotically driven exalted view of himself at the material time. (

e) Mr. Mishibinijima has exhibited a fluctuant pattern of acute psychosis throughout his admission to Waypoint. This has con​tinued in the absence of use of alcohol and street drugs. (

f) Given Mr. Mishibinijima’s psychotic and disorganized presentation in the absence of substance use, it is reasonable to extrapolate back to the material time and to assert that this was, on a balance of probabilities, his underlying state of mind at the time he assaulted the victim. While he may have used some cannabis during the period leading up to the material time, while it is possible that cannabis could have exacerbated his psychosis, his psychotic presentation at Waypoint, which has prevailed in the absence of cannabis use, points to an endogenous psychotic illness as the chief factor in play at the material time. (

g) There has been ample evidence that he hears voices and receives psychotic messages on an intermittent basis, yet he will only sometimes admit that this is occurring. (

h) A combination of the content of the voices, psychotic disorganization and agitation and psychotic grandiosity were, in all likelihood, in play at the material time in such a way as to interfere with capacity to assess rational choice in relation to considerations of moral and legal wrongfulness. (

i) Mr. Mishibinijima does not present as currently certifiable according to the criteria of the Mental Health Act of Ontario . In the event of his stopping this medication, he would likely deteriorate within days to weeks, and in a deteriorated state, would once again pose a high risk of violent behaviour. [ 25 ] In addition to the above, the defence submitted a copy of the transcript of Mr. Mishibinijima’s statement to police which was taken on August 15, 2017 between the hours of 2:15 a.m. and 2:53 a.m. The transcript was marked as Exhibit 3.

The Court has reviewed the entirety of this transcript, however, the following comments are of note: Sgt. S. Cooper: so you’re telling me your dad was a good man and the other guy was a bad dude Levi Mishibinijima: (u/i) Sgt. Cooper: yeah Levi Mishibinijima: (u/i) Sgt. S. Cooper: he’s a crack head and deals drugs Levi Mishibinijima: yeah (u/i) get my dad involved in drugs you know Sgt. S. Cooper: uhmm Levi Mishibinijima: he was going out with Blossom before he died …… Levi Mishibinijima: (u/i) my daddy brought me back from Windsor (u/i) came and got me over there Sgt. S.

Cooper: you were down in Windsor Levi Mishibinijima: yeah Sgt. S. Cooper: oh that’s why I haven’t seen you around you were gone for quite a long time Levi Mishibinijima: yeah and then he drive me back hic em yeah and I got to see my dad for like a week and then Sgt. S. Cooper: uhmm Levi Mishibinijima: he died …..

Sgt. S. Cooper: yeah who is your grandma Levi Mishibinijima: Caroline Mandamin Sgt. S. Cooper: Caroline Mandamin Levi Mishibinijima: yah Sgt. S. Cooper: which house does she live at they’re there’s three houses there (u/i) which one is their house Levi Mishibinijima: the blue house Sgt. S. Cooper: oh the blue house so you were there visiting your grandma Levi Mishibinijima: yeah Sgt. S. Cooper: oh yeah and you said that she’s pretty (u/i) Levi Mishibinijima: yeah (u/i) when I got there you know (u/i) message from my dad Sgt. S. Cooper: uhmm Levi Mishibinijima: yeah Sgt. S.

Cooper: uhmm Levi Mishibinijima: (u/i) and my auntie Violet took off (u/i) Sgt. S. Cooper: you saw your dad’s spirit is that what you said Levi Mishibinijima: yeah it was like a bunch of like it was a bunch of vibes Sgt. S. Cooper: yeah you were getting vibes Levi Mishibinijima: and then something in my head communicated with me it kill her kill her right now then like ….. Sgt. S. Cooper: uhmm so you’ve never met Mike before Levi Mishibinijima: no Sgt. S. Cooper: do you know who he was Levi Mishibinijima: no Sgt. S.

Cooper: no so how do you know that was Mike that was there Levi Mishibinijima: because I got there real close to him and like (u/i) dad was speaking to me (u/i) basically I could hear him say it (u/i) Sgt. S. Cooper: what was he saying what did you hear in his head Levi Mishibinijima: (u/i) he wouldn’t look at me he’d look away like Sgt. S. Cooper: uhmm Levi Mishibinijima: then he’d something like I killed your father or your father’s dead (u/i) in your mind control Sgt. S. Cooper: uhmm Levi Mishibinijima: and then he’s (u/i) like he wasn’t there man Sgt. S.

Cooper: uhmm and how did that make you feel Levi Mishibinijima: it made me feel uncomfortable Sgt. S. Cooper: uhmm Levi Mishibinijima: knowing that I can hear my dad Sgt. S. Cooper: uhmm Levi Mishibinijima: yeah I kinda feel like it was (u/i) Sgt. S. Cooper: uhmm and then what happened

Levi Mishibinijima: I guess I can hear dad (u/i) at the tractor (u/i) Sgt. S. Cooper: uhmm Levi Mishibinijima: and then I can hear my uncle Theodore coming and like I always hear and all I could hear is go ahead Gwiss stab him get it over with and leave and Sgt. S. Cooper: uhuh Levi Mishibinijima: and something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him Sgt. S. Cooper: where did you stab him Levi Mishibinijima: in the neck somewhere or in the head and then I ran (u/i) and then just like and I ran back I guess and I told I told the (u/i) that he hung him Sgt.

S. Cooper: uhuh who did you tell that to Levi Mishibinijima: my father was telling me that (u/i) Sgt. S. Cooper: uhmm Levi Mishibinijima: but my father was telling before that him and Mike had a fight before (u/i) Sgt. S. Cooper: uhmm Levi Mishibinijima: jealous of him Mike (u/i) it’s like Sgt. S. Cooper: uhmm …… Levi Mishibinijima: yeah my dad’s like traditional medicine Sgt. S. Cooper: uhmm Levi Mishibinijima: he followed the traditional way medicine ….. Sgt. S.

Cooper: …..you were saying that you felt that you were being bear walked you said something overcame you and you was telling you to kill Mike is that correct Levi Mishibinijima: yeah Sgt. S. Cooper: can you tell me when you said you had a knife and where did this knife come from Levi Mishibinijima: at my grandma’s Sgt. S. Cooper: at your grandma’s can you describe that knife to me Levi Mishibinijima: just a knife I guess it was on the counter Sgt. S. Cooper: uhmm Levi Mishibinijima: And I had some pizza (u/i) made some pizza (u/i) Sgt. S.

Cooper: yeah you had some pizza at your grandma’s and it was the knife that you were using for the pizza or Levi Mishibinijima: no it was a it was a pizza cutter knife Sgt. S. Cooper: it’s a pizza cutter knife Levi Mishibinijima: hmm Sgt. S. Cooper: yeah Levi Mishibinijima: it was there the (u/i) the knife (u/i) Sgt. S. Cooper: a what knife Levi Mishibinijima: a knife beside it Sgt. S. Cooper: okay so which knife did you grab Levi Mishibinijima: it was a wooden knife (u/i)

Sgt. S. Cooper: a wooden knife Levi Mishibinijima: yeah (sniff) Sgt. S. Cooper: where is that knife now Levi Mishibinijima: I don’t know I threw it away somewhere it must’ve fell Sgt. S. Cooper: do you remember exactly where it may have fell Levi Mishibinijima: no Sgt. S. Cooper: was it at the house or at the field or in the bush Levi Mishibinijima: I don’t know it’s gone it’s gone Sgt. S. Cooper: it’s gone Levi Mishibinijima: (u/i) pizza knife and then (u/i) that pizza knife Sgt. S. Cooper: uhmm Levi Mishibinijima: you know (u/i) Sgt. S. Cooper: uhmm Levi Mishibinijima: and then I left and then (u/i) Sgt. S.

Cooper: uhmm so you were explaining to me that you felt something overcome with you you’re describing a flame that entered your body Levi Mishibinijima: yeah it was like not a flame but it was like …. Sgt. S. Cooper: okay so what makes you decide to go over there Levi Mishibinijima: nothing Sgt. S. Cooper: nothing you just decide to go check it out or like how did you end up over there Levi Mishibinijima: I ended up there before (u/i) Sgt. S. Cooper: uhmm Levi Mishibinijima: (u/i) but (u/i) being hurt on the floor (u/i) and my spirit on my dream that was my spirit (u/i) Sgt. S.

Cooper: uhmm okay so Levi Mishibinijima: but that was that was like four three or four years ago …. Sgt. S. Cooper: uhmm so going back to the pizza you’re having pizza and then at what point do you decide to go next door Levi Mishibinijima: I didn’t decide Sgt. S. Cooper: you didn’t decide how did you end up there Levi Mishibinijima: I don’t know I just hang out with Dorian Sgt. S. Cooper: you’re just hanging out with Dorian Levi Mishibinijima: yeah Sgt. S. Cooper: what were you guys talking about Levi Mishibinijima: nothing we just (u/i) Sgt. S.

Cooper: uhmm so you guys are watching TV flipping through the channels and then at some point you end up over next door right Levi Mishibinijima: yeah Sgt. S. Cooper: can you tell me why you went next door

Levi Mishibinijima: I don’t know I couldn’t Sgt. S. Cooper: can you tell me what you saw and what next door Levi Mishibinijima: I didn’t see anything Sgt. S. Cooper: okay so earlier you said that you saw some people over there Levi Mishibinijima: yeah I seen somebody else I think Sgt. S. Cooper: uhmm Levi Mishibinijima: Mike and some dude Sgt. S. Cooper: you saw Mike and some dude and then you decide to go over and talk to them is that what happened or Levi Mishibinijima: yeah then I seen my uncle Theodore Sgt. S.

Cooper: you saw your uncle where is he Levi Mishibinijima: he was coming outside the house with his daughter Sgt. S. Cooper: uhmm who is his daughter Levi Mishibinijima: I don’t know them (u/i) well I did before but I never really talk to them Sgt. S. Cooper: okay so you told me earlier that when you went over to where your uncle Mike lives and there’s some dude you said that you could hear voices Levi Mishibinijima: yeah Sgt. S. Cooper: can you tell me what those voices were telling you Levi Mishibinijima: (u/i) they’re but they’re like mind communicating to me (u/i) Sgt. S.

Cooper: okay and who was doing that to you Levi Mishibinijima: I don’t know Sgt. S. Cooper: and you described to me again what ah Mike’s demeanour was toward you Levi Mishibinijima: he was mean Sgt. S. Cooper: he was mean to you Levi Mishibinijima: yeah Sgt. S. Cooper: okay how did he act when he saw you Levi Mishibinijima: (u/i) he knew that that he did something wrong but didn’t want to tell me because Sgt. S. Cooper: uhmm Levi Mishibinijima: I thought maybe he would know that I would know about it that my father was (u/i) Sgt. S.

Cooper: uhmm Levi Mishibinijima: my dad is (u/i) my dad is (u/i) I love my father Sgt. S. Cooper: uhmm Levi Mishibinijima: (u/i) Sgt. S. Cooper: uhmm Levi Mishibinijima: I should’ve never went to him there they were drinking Sgt. S. Cooper: uhmm Levi Mishibinijima: (u/i) alcohol (u/i) drink (u/i) over there Sgt. S. Cooper: uhmm Levi Mishibinijima: (u/i) I went there he probably cause my body is like real weak (u/i) it’s like alcohol and drugs Sgt. S. Cooper: uhmm

Levi Mishibinijima: that (u/i) that like (u/i) Sgt. S. Cooper: yeah Levi Mishibinijima: like my body gets taken over by by ah (u/i) like that (u/i) Sgt. S. Cooper: uhmm so were you on alcohol yesterday Levi Mishibinijima: (u/i) Sgt. S. Cooper: were you on drugs Levi Mishibinijima: (u/i) I just (u/i) my auntie and had a beer there ….. Sgt. S. Cooper: so you’re over there and you’re talking and you can hear these voices and you’re saying that there’s some mind control going on Levi Mishibinijima: yeah Amanda could do that too Sgt. S.

Cooper: who is Amanda Levi Mishibinijima: Amanda Mandamin (u/i) the mind telling me (u/i) Sgt. S. Cooper: uhmm Levi Mishibinijima: again some kind of power that he can mind control Sgt. S. Cooper: uhmm Levi Mishibinijima: but with the (u/i) Sgt. S. Cooper: uhmm Levi Mishibinijima: (u/i) my mom before (u/i) …. Sgt. S. Cooper: you want to do anything else to Mike Levi Mishibinijima: (sniff) no not (u/i) …. Sgt. S. Cooper: have you ever hurt anybody else Levi Mishibinijima: no (u/i) no Sgt. S. Cooper: no so um you said you grabbed the knife from you grandma’s kitchen Levi Mishibinijima: yeah Sgt. S.

Cooper: can you describe that knife to me Levi Mishibinijima: it’s silver Sgt. S. Cooper: okay Levi Mishibinijima: yeah Sgt. S. Cooper: how long was it Levi Mishibinijima: (u/i) Sgt. S. Cooper: uhmm and where did you hide that knife on you did you Levi Mishibinijima: it fell out of my pocket or something Sgt. S. Cooper: it fell out of your pocket when would that have happened Levi Mishibinijima: I don’t know probably when (u/i) Sgt. S. Cooper: uhmm which pocket did you put it in Levi Mishibinijima: left

Sgt. S. Cooper: your left pocket are you left handed or are you right handed Levi Mishibinijima: I’m left handed Sgt. S. Cooper: are you Levi Mishibinijima: (u/i) I usually stay at my mom’s place (u/i) it might be up there …. Sgt. S. Cooper: yeah (u/i) they take you to the psyche ward is that what you said Levi Mishibinijima: (u/i) probably where I’ll have to go ….. Sgt. S. Cooper: like everything that we talked about is recorded okay and I also talked to you in your initial arrest you had to you couldtalk to a lawyer and stuff like that did you talk to a lawyer Levi Mishibinijima: I talked to duty counsel Sgt.

S. Cooper: you talked to duty counsel do you remember his name Levi Mishibinijima: no I don’t [26] While the Court does have the benefit of the transcript of this interview conducted with Levi Mishibinijima on August 15, 2017,it must be noted that the best evidence would have been the video and audio of this statement. There are many inaudible utterances asnoted in the transcript, which makes it very difficult to understand the comments made by both parties. In addition, it would have beenpreferable to see Levi Mishibinijima as he was making these comments.

At the very least, it would have been preferable to hear Mr.Mishibinijima make these comments as opposed to simply reading the comments. [27] Further, it is quite shocking to the Court that Dr. Eayrs did not have the benefit of the video recording to form her opinion. Thisinterview commenced at 2:15 a.m. on August 15, 2017. The stabbing occurred on August 14, 2017 and Mr. Mishibinijima was arrestedat 9:34 p.m. on that date. A video of Mr. Mishibinijima at 2:15 a.m., less than 5 hours after his arrest, would seem to be an importantpiece of information for both Dr. Eayrs to see and for the Court to see.

However, this evidence was not provided to either the doctor orthe Court. Analysis [28]

Section 16 of the Criminal Code governs the defence of mental disorder and states as follows: 16(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder thatrendered 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 theparty that raises the issue. [29] No person who committed an offence while suffering from a mental disorder that rendered the person incapable of appreciatingthe nature and quality of the act or omission or of knowing that it was wrong may be convicted. The test is a legal test, not a medicaltest. [30] Mental disorder means a “disease of the mind”, as stated in

Section 2 of the Criminal Code. A “disease of the mind” includesany illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced statescaused by alcohol or drugs, as well as transitory mental states. See R. v. Cooper, (SCC), [1980] 1 S.C.R. 1149. [31] In using the two words “appreciating” and “knowing”, Parliament clearly intended that different tests be used. The verb “know”has a positive connotation requiring a base awareness, while “appreciate” involves a further step of analysis of knowledge orexperience: See R. v.

Barnier, (SCC), [1980] 1 S.C.R. 1124 [32] It is conceded that Mr. Mishibinijima did appreciate the nature and quality of the act, and this is therefore not the focus of theanalysis in this case. It is argued that Mr. Mishibinijima committed

an act while suffering from a mental disorder that rendered himincapable of knowing that the act was wrong. [33] Knowledge in this circumstance does not require appreciation. One would assume that the language in the

section is deliberatein that this second branch of the inquiry only refers to “knowing that it was wrong”. As referred to above, this is a base awareness. [34] Wrong means “morally wrong” and not simply “legally wrong”. The court must determine whether the accused, because of adisease of the mind, was rendered incapable of knowing that the act committed was something that he ought not to have done. Theinquiry cannot terminate with the discovery that the accused knew that the act was contrary to law.

A person may know that the act waslegally wrong and yet, by reason of a disease of the mind, be incapable of knowing that the act is morally wrong in the circumstancesaccording to the moral standards of reasonable men and women. See: R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303 atpara 101, 108 and 111

[35] In R. v. Oommen, McLachlin J. for the Court provided further guidance on this point and stated in part as follows: [21] A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to knowright from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess theintellectual ability to know right from wrong in an abstract sense.

But he or she must also possess the ability to apply that knowledge ina rational way to the alleged criminal act. [22] The wording of s. 16(1) suggests this result. It proclaims that the focus is not a general capacity to understand that the act, say ofkilling, is wrong, but rather the act “committed” or omission “made”, i.e. the particular act or omission at issue in the criminalproceedings. [26] The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence tomake a rational choice about whether to do it or not.

The inability to make a rational choice may result from a variety of mentaldisfunctions; as the following passages indicate these include at a minimum the states to which the psychiatrists testified to 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. See: R. v. Oommen, (SCC), [1994] 2S.C.R. 507 [36] Further in Oommen, McLachlin J. distinguished between the person who is unable to know that the act is wrong from a personwho is able to know the act is wrong but chooses to do it anyway. At para 32: [32] Finally, it should be noted that we are not here concerned with the psychopath or the person who follows a personal and deviantcode of right and wrong.

The accused in the case at bar accepted society’s views on right and wrong. The suggestion is that, acceptingthose views, he was unable because of his delusion to perceive that his act of killing was wrong in the particular circumstances of thecase. On the contrary, as the psychiatrists testified, he viewed it as right. This is different from the psychopath or person following adeviant moral code. Such a person is capable of knowing that his or her acts are wrong in the eyes of society, and despite suchknowledge, chooses to commit them.

To quote Herbert Fingarette, The Meaning of Criminal Insanity (1972), at pp. 200-201: It should be evident that we are not here reverting to the thesis that “knew it was wrong” means “judged it wrong in the light of his ownconscience”….such a definition could never be acceptable in a viable criminal law. As the courts have rightly insisted, it is a publicstandard of wrong that must be used, whether public law or community morality.

What we are saying here is that “knowing the nature and quality of the act or that it is wrong” in the context of insanity (and thus,rationality) means “having the capacity to rationally assess – define and evaluate – his own particular act in the light of the relevantpublic standards of wrong”… The preceding comments should not be taken to mean that a person is not responsible if he holds irrational beliefs, for that is not thecase….The point is that if the person has a mental makeup which is such that he lacks even the capacity for rationality, thenresponsibility is vitiated.

If he has the capacity but simply fails to use it, responsibility is not precluded. [37] It is not sufficient to decide that the conduct was as a result of the person’s delusions. This would not end the inquiry. Even ifthe conduct was motivated by a delusion, the accused is criminally responsible if she or he was capable of knowing, in spite of thedelusion, that the conduct in the particular circumstances would have been morally condemned by reasonable members of society: SeeR. v. Ratti, (SCC), [1991] 1 S.C.R. 68 at para 21.

Certainly, these comments would apply equally if, rather thandelusions, the person was suffering from auditory hallucinations. [38] In R. v. Dobson, 2015 ONSC 2865, Justice Watt stated three helpful reminders about the case law on this prong of the s. 16 test: 124 First, the inability of a person accused of crime to exercise the same degree of judgment as would be expected of a personunencumbered by mental disorder is a long way removed from the incapacity to know that a person's actions are wrong according to thenormal standards of members of the community: R. v. Guidolin, 2011 ONCA 264 (Ont.

C.A.), at para 22. 125 Second, a subjective belief by an accused that his or her conduct was justifiable will not exempt him or her from criminalresponsibility even if his or her personal beliefs were driven by a mental disorder, as long as she or he retained the capacity to know thatthe conduct would be regarded as wrong in the circumstances by reasonable members of society: R. v. Ross, 2009 ONCA 149 (Ont.C.A.), at para 27; Chaulk , at para 98; and R. v. Woodward, 2009 ONCA 911 (Ont.

C.A.), at para 6. 126 Third, to determine whether an accused's mental disorder rendered him incapable of knowing that his conduct was wrong in thecircumstances, triers of fact are not bound by the opinions of experts. Rather, the determination is to be made on the basis of theevidence as a whole. Expert testimony falls to be evaluated like the testimony of any other witness: Ratti, at p. 81.

To be more specific, atrier of fact is entitled to reject expert evidence that an accused was capable of knowing that his or her conduct was wrong and toconclude from an accused's previous and contemporaneous conduct and utterances that the accused was or was not criminallyresponsible: Kirkby, at p. 49; Attorney-General for South Australia v. Brown, [1960] A.C. 432 (Australia P.C.), at p. 452. [39] The onus and burden of proof in this case lies on Mr. Mishibinijima on a balance of probabilities, given that he has raised theissue with the Court. [40] The question to be answered is whether Mr.

Mishibinijima has demonstrated on a balance of probabilities that he should beexempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rationalperception and hence rational choice about the rightness or wrongness of the act. [41] I find the evidence in this case lacking in several respects. [42] Based on the totality of the evidence that I do have, it is somewhat difficult for me to say that Mr. Mishibinijima was, at the

material time, suffering from a mental disorder. While I appreciate that Dr. Eayrs has attempted to provide evidence in this regard, I find that her evidence is somewhat limited in the sense that she was not provided with any medical background or information from other collateral sources such as family or friends. While I understand from her evidence that it was difficult at the beginning of Mr. Mishibinijima’s admission to get reliable information from him, this changed at some point. The Court is left questioning why this was never followed up on prior to the hearing on January 30, 2018. [ 43 ] Further, Dr.

Eayrs came to her initial conclusions in the report without the benefit of having Mr. Mishibinijima’s statement to the police. She did subsequently review the transcript of that interview and testified that it supported her earlier conclusions. Again, the Court is left questioning why the video-taped statement was not provided to Dr. Eayrs. One would think that this would provide better evidence to Dr. Eayrs, especially because the transcript in this case contained a number of inaudible notations. [ 44 ] Further, I do not believe that Dr.

Eayrs had access to other potentially helpful pieces of information, such as:

(1) Disclosure, including witness statements, officer’s notes, relevant videos and audios, crime scene video, or forensic reports.

(2) Mr. Mishibinijima’s criminal record (the Criminal History

section on page 2 and 3 of the psychiatric assessment only stated: Mr. Mishibinijima was detained at the Sudbury jail in 2012 and on four occasions in 2013. Charting from the 2017 detention at the Sudbury Jail refers to a past incident in which he may have sexually abused a sister. This report remains uncorroborated)

(3) Mr. Mishibinijima’s probation and previous supervision records, if they exist. [ 45 ] One would think that a medical professional would need as much detail and the best information available about the person’s background in order to be able to conclude what the person’s state of mind was at the material time. I would say this is especially so given the fact that experts, such as Dr. Eayrs, are reluctant to provide certainty when attempting to describe someone’s mental state at a specified time in the past.

A person’s past mental state cannot be precisely known, therefore, the expert should be extremely thorough and consider all avenues prior to coming to an opinion. [ 46 ] In my view, the assessment and conclusions in this case rely on inadequate information. [ 47 ] Further, even if the Court were to find, on a balance of probabilities, that Mr. Mishibinijima suffered from a mental disorder at the relevant time of the index offence, the existence of a mental disorder is not synonymous with lack of criminal responsibility. The existence of a mental disorder, as defined in

section 2 of the Criminal Code , is a necessary condition for a successful defence under

section 16 , but it is only one of the necessary conditions. The presence of the mental disorder and, more specifically, the symptoms of the mental disorder, need to have affected the person at the critical time of the index offence in order for the Court to say that the mental disorder deprived the person of the capacity of knowing the act was wrong. [ 48 ] In order to draw out information with respect to the person’s state of mind at the relevant time, and specifically to attempt to uncover whether or not the person had the capacity of knowing the act was wrong at the relevant time, the Court would expect the psychiatric assessment to delve into issues such as: (

a) Details of the person’s mental state leading up to the index offence; (

b) A history of the person’s relationship with the complainant, including any potential motive to commit the act in question; (

c) Information regarding how the act occurred, including any attempt to evade police or avoid detection; (

d) Where there are delusions or auditory hallucinations, a consideration of whether the person has experienced these symptoms in the past and has the person been able to overcome the influence of such symptoms in the past; (

e) Information as to whether the person attempted to stop themselves from the act they committed; (

f) Information from the person regarding why they did what they did, what the consequences would be if they did or did not do the act, was the person concerned about the consequences, what authority were they acting on to commit the act, and the person’s opinion as to whether or not the act is legal. While this list is not meant to be exhaustive, it should offer some guidance for assessments geared toward a determination of criminal responsibility. For further guidance see: Bloom, Hy and Schneider, Richard D.

Mental Disorder and the Law : A Primer for Legal and Mental Health Professionals , Toronto: Irwin Law, 2017, pp. 173-175. [ 49 ] There is certainly some evidence that Mr. Mishibinijima was hearing voices on the day in question and that those voices were telling him to commit the act. However, as previously stated, it is not sufficient to decide that the conduct was as a result of the person’s auditory hallucinations. This would not end the inquiry.

Even if the conduct was motivated by a command auditory hallucination, the accused is still criminally responsible if she or he was capable of knowing, in spite of the command auditory hallucination, that the conduct in the particular circumstances would have been morally condemned by reasonable members of society. [ 50 ] In my view, the evidence presented to this Court does not establish on a balance of probabilities that Mr. Mishibinijima was incapable of knowing that his conduct was morally condemned by reasonable members of society. In my view, the evidence points to the opposite conclusion:

(1) Included in the agreed statement of facts are the following pieces of evidence: (

a) There was evidence that Mr. Mishibinijima fled the scene of the crime. (

b) Mr. Mishibinijima blurted out that he was a murderer and that he killed his brother (the victim Mandamin) as the victim had killed his father. This would suggest a revenge action.

(

c) Tim Pangowish heard Mr. Mishibinijima say “I know you killed my father”. This would also suggest a revenge action. (

d) Mr. Mishibinijima told Sgt Cooper that his father was telling him that the victim had hung him and that he needed to be free of him. Then he went on to say that the victim said something “like I killed your father or your father’s dead in your mind control”. He could hear his dad speaking. Then Levi Mishibinijima said “all I could hear is go ahead Gwiss stab him get it over with and leave and something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him.” This also suggests a revenge action.

The statement “something just possessed over me and I just pulled out a knife and I fuckin went up to him and I stabbed him” does not indicate that Mr. Mishibinijima was deprived of his ability to make a rational choice or to know right from wrong.

(2) Included in the transcript of Mr. Mishibinijima’s statement to the police on August 15, 2017 are the following comments which lead this Court to believe that he was able to make a rational choice and that he knew this act was morally wrong: (

a) Yeah (u/i) get my dad involved in drugs you know (b) (u/i) he wouldn’t look at me he’d look away like….then he’d something like I killed your father or your father’s dead (u/i) in your mind control…..and then he’s (u/i) like he wasn’t there man (c) [Where did you stab him?] In the neck somewhere or in the head and then I ran (u/i) and then just like and I ran back I guess and I told I told the (u/i) that he hung him….my father was telling me that. (

d) but my father was telling before that him and Mike had a fight before (u/i)….jealous of him Mike (u/i) it’s like (u/i) (

e) yeah my dad’s like traditional medicine….he followed the traditional way medicine (f) [….where did the knife come from]…..at my grandma’s….it was a wooden knife….[where is the knife now]…..I don’t know I threw it away somewhere it must’ve fell…..I don’t know it’s gone it’s gone. (g) [Okay so what makes you decide to go over there…] nothing […..nothing you just decide to go check it out or like how did you end up over there…..] I ended up there before (u/i)….but (u/i) being hurt on the floor (u/i) and my spirit on my dream that was my spirit (u/i)….but that was that was like four three or four years ago. (h) [You saw Mike and some dude and then you decide to go over and talk to them is that what happened or] ….yeah then I seen my uncle Theodore. (i) [Can you tell me what those voices were telling you]…..(u/i) they’re but they’re like mind communicating to me (u/i) [….okay and who was doing that to you…..] I don’t know (j) [and you described to me again what ah Mike’s demeanour was toward you] he was mean…. [he was mean to you….] yeah (k) (u/i) he knew that that he did something wrong but didn’t want to tell me because I thought maybe he would know that I would know about it that my father was (u/i)….my dad is (u/i) my dad is (u/i) I love my father (

l) I should’ve never went to him there they were drinking….(u/i) alcohol (u/i) drink (u/i) over there…(u/i) I went there he probably cause my body is like real weak (u/i) it’s like alcohol and drugs….that (u/i) that like (u/i)….like my body gets taken over by ah (u/i) like that (u/i) [ 51 ] A person may well be aware that

an act is usually contrary to societal standards and therefore wrong but, by reason of a mental disorder, may be incapable of knowing that the act is wrong in the particular circumstances in which the person finds himself. However, if, notwithstanding a mental disorder, a person has the capacity to know that his conduct is morally wrong, he is not exempt from criminal responsibility. [ 52 ] In my view, there is ample evidence to demonstrate that Mr. Mishibinijima committed this act because he believed that the victim murdered his father. After committing this act, he ran and went to a friend’s house.

As stated earlier, the crux of the inquiry is whether Mr. Mishibinijima lacked the capacity to rationally decide whether the act was right or wrong and hence to make a rational choice about whether to do it or not. I am not convinced that the auditory hallucinations Mr. Mishibinijima may have been experiencing made him perceive a wrongful act as right or justifiable.

I am not convinced, on a balance of probabilities, that any disordered condition of his mind deprived him of the ability to know right from wrong. [ 53 ] A trier of fact is entitled to reject expert evidence that a person was incapable of knowing that his or her conduct was wrong and to conclude on the basis of previous and contemporaneous conduct and statements that the person was criminally responsible. Based on the facts of this case, the court finds that Mr. Mishibinijima had the capacity to know the act was wrong but simply failed to use that capacity.

Responsibility is not excused in these circumstances. [ 54 ] In the result, I am satisfied that Levi Mishibinijima is criminally responsible for the aggravated assault on Joseph Michael Gerald Mandamin. A finding of guilt and conviction will be recorded on the offence of aggravated assault. Released: February 13, 2018 Signed: Justice V. Christie