Her Majesty the Queen - v. -, 2015 SKPC 090

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 090 Date: June 11, 2015 Information: 24447921 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Justin Keith Jereda Appearing: Shawn Blackman For the Crown Marcel Simonot, Q.C. For the Accused DECISION H. M. HARRADENCE , J INTRODUCTION [ 1 ] On January 17, 2014, Justin Jereda (Jereda) brutally attacked his dog Cody by slitting his throat with a knife. Cody survived due to the quick action of a neighbour. Jereda is charged with wilfully causing pain to a dog and wilfully neglecting to provide adequate care to a dog contrary to

section 445 and 446 of the Criminal Code . [ 2 ] Jereda is a former member of the United States Army. His service record is detailed in the report of Dr. Mela, including

missions in Afghanistan, Korea and Saudi Arabia. As a result of this service, Jereda has been diagnosed as suffering from post-traumatic stress disorder along with other mental health issues. The defence argues that these mental health disorders rendered him not criminally responsible (NCR). The Crown takes the position that they are not arguing against an NCR designation but leaving the determination to the Court. THE FACTS [ 3 ] Crown and Defence counsel submitted an Agreed Statement of Facts which was marked as P-1 in these proceedings and reads as follows: 1.

On January 14, 2014, at approximately 2:00 P.M. in the Albertville District in the Province of Saskatchewan, a dog owned by Justin Keith Jereda (“Mr. Jereda”) left Mr. Jereda’s property and attended the neighbouring property occupied by Jessica Zelensky (“Ms. Zelensky”). 2. The dog went under the back deck of Ms. Zelensky’s residence. 3. Ms. Zelensky went to the garage to get the garden hose to spray the dog to get it out from under the deck. 4. Ms. Zelensky observed Mr. Jereda attend to the back deck to retrieve the dog, so she put the garden hose away and went into her residence. 5. Ms. Zelensky heard Mr.

Jereda yell at the dog and then heard the dog yelping. 6. Ms. Zelensky looked out her window and observed Mr. Jereda pinning the dog down on the ground. 7. Ms. Zelensky observed Mr. Jereda with a knife with blood on it in his hand. 8. Mr. Jereda went into his residence, leaving the dog in the driveway. 9. Ms. Zelensky took the dog to Park Range Veterinary Services in Prince Albert, Saskatchewan (“Park Range”), where it was examined and treated successfully. 10. The dog had 3 large knife wounds on the left side of its neck caused by Mr. Jereda. 11.

The dog was anesthetized; wounds were cleaned, clipped and sutured. 12. The dog was placed on antibiotics and non-steroidal anti-inflammatories and released to the Prince Albert S.P.C.A. on January 20, 2014. 13. The dog was formerly surrendered to the S.P.C.A. by Mr. Jereda’s spouse. MEDICAL EVIDENCE [ 4 ] Jereda has been assessed by four medical professionals, all of whom submitted reports.

1. Dr. Cooper, Psychiatrist (report dated May 22, 2014, D-1). [ 5 ] Dr. Cooper diagnoses Jereda with post-traumatic stress disorder, bipolar mood disorder and cluster B personality traits. Dr. Cooper’s report indicates that she has seen Jereda since 2013. Her report states that “he continues to battle with intense bouts of anger, irritability, difficulty coping with stressors and difficulty with interpersonal relations. At times feeling he dissociates.” 2. Dr. Regan Hart, Psychologist (report dated May 8, 2014, P-2). [ 6 ] Dr.

Hart’s report indicates that Jereda started seeing her in August 2013, after he attempted suicide by an overdose of pills. In the report Dr. Hart indicates that Cody is reported as saving Jereda’s life during this suicide attempt by barking continuously, which prevented Jereda from falling asleep and eventually alerted Jereda’s wife. Dr. Hart diagnoses Jereda with post-traumatic stress disorder (PTSD) and major depressive disorder. In relation to the incident, Dr.

Hart says the following in her report: In January 2014, he reported that he was experiencing some conflict with a neighbour about Cody getting out of the house and being on her property. This was causing him some additional stress and conflict with his wife’s parents. In the months leading up to this, he had also reported increasing severity of symptoms of PTSD, especially emotional detachment and numbing. On January 20, 2014, I received a request from Mr. Jereda to call him about an “urgent” matter. When I spoke to him, he related to me the incidents leading up to his assault of his dog Cody.

He had reported that there had been increasing conflict and tension between himself and his in-laws, and that on the day of the incident, Cody had again escaped the house and had caused trouble over at the neighbours. Mr. Jereda related all this information to me in a very emotional detached manner, and was seemingly also unaware of the impact of his actions at the time he was carrying out the assault on his dog. He clearly failed to see any other options at that point in time, and was acting as though it was his responsibility to dispose of his pet who was causing problems.

He referred to it as having to “put down an animal” in much the same way a farmer may need to do so. He stated that he went into “soldier mode”, and I noted that “of concern was his apparent lack of connection with the emotional implications of having attempted to kill his dog”. 3. Dr. Mela, Psychiatrist (report dated November 10, 2014, P-3). [ 7 ] Dr. Mela interviewed Jereda on two occasions totalling seven hours. His report is extensive and provides a history and background for Jereda. Dr.

Mela diagnoses Jereda with bipolar disorder; severe post-traumatic stress disorder; alcohol dependence; and personality disorder not otherwise specified with borderline, avoidant, passive aggressive and paranoid features. [ 8 ] Dr. Mela’s report detailed Jereda’s personal and service history. In it, Dr. Mela recounts asking Jereda to list his post- traumatic stress experiences in order of severity: He indicated that the April 17th, 2002 bombing of the Canadians in which he recovered bodies was the most severe and traumatizing.

The second had to do with the investigation involving the child that blew himself up in Afghanistan. The third had to do with the bullying he had survived and sustained while in school. He indicated that this was trauma for a five year old child. The fourth event was the accident involving his EOD unit soldiers in which he investigated an explosion. The sixth had to do with the physical abuse he sustained from his mother who put him under the faucet of the tap in addition to hitting him with several objects. The 7th had to do with investigating a fellow soldier who blew himself up… [ 9 ] Dr.

Mela concludes his report by opining that Jereda’s PTSD symptoms did not negate his ability to know the consequences of his actions: They were relevant in the sense of being a source of distress, a source of lack of control. They were, however, not sufficient to serve as negating the ability to know the consequences of the action as depicted in the behaviour. It was also not sufficient to negate the knowledge that it was not wrong. Such short lived dissociative state is determined to not be sufficient to invoke a non-criminally responsible defence.

It is however likely that the level of distress and emotional experience as related to his post-traumatic stress disorder may be responsible for the irresistible impulse to act as he did, similar to diminished responsibility in some jurisdiction. [ 10 ] Dr. Mela recognizes that a dissociated state accompanied the incident but believes that dissociation was transient and not sufficient to negate Jereda’s awareness of the consequences of his actions. 4. Dr. D.G. Passey, Psychiatrist (report dated January 23, 2015, P-4).

[ 11 ] Dr. Passey interviewed Jereda on September 26, 2014. Subsequently, he reviewed the reports of Dr. Mela and Dr. Hart. In his report, Dr. Passey concludes that Jereda suffers from chronic PTSD, bipolar disorder and alcohol abuse in remission. Dr. Passey disagrees with Dr. Mela regarding the effect of the dissociated state: It is my opinion that Mr. Jereda was in a dissociated state to such degree that he did not fully understand what he was doing and was not capable in that instant of the alleged offence of being able to truly understand right from wrong or legal from illegal.

The dissociated state was a direct result of his severe PTSD. There is a clear history of dissociative symptoms prior to and after the event that both Dr. Mela and I agree were present. I agree with the majority of what Dr. Mela wrote in his opinion but differ in that I do not believe that Mr. Jereda had the ability to know the consequences of his action and did not have knowledge that his behaviour was wrong until well after the event. The duration of the dissociated state is immaterial as long as it was present and sufficiently severe at the time of the alleged offence.

I believe that there is a clear history that dissociated state did occur prior to the alleged offence, and continued until well after the event. THE LAW [ 12 ]

Section 16 of the Criminal Code provides: 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. [ 13 ] Justice LeBel in R v Bouchard-Lebrun , 2011 SCC 58 , [2011] 3 SCR 575 [ Bouchard-Lebrun ], describes s. 16 as follows: [55] Section 16(2) Cr. C. provides that “[e]very person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility”.

An accused who seeks to avoid criminal responsibility on this ground must prove on a balance of probabilities that, at the material time, he or she was 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” (s. 16(1) Cr. C. ). In Chaulk , this Court held that imposing this burden of proof on the accused infringed the presumption of innocence guaranteed by s. 11(

d) of the Charter but that this was nonetheless a reasonable limit on that presumption in a free and democratic society. [56] An accused who wishes to successfully raise the defence of mental disorder must therefore meet the requirements of a two - stage statutory test. The first stage involves characterizing the mental state of the accused. The key issue to be decided at trial at this stage is whether the accused was suffering from a mental disorder in the legal sense at the time of the alleged events. The second stage of the defence provided for in s. 16 Cr. C. concerns the effects of the mental disorder .

At this stage, it must be determined whether, owing to his or her mental condition, the accused was incapable of “knowing that [the act or omission] was wrong” (s. 16(1) Cr. C. ). a. The Two Elements of

Section 16 (

i) Mental Disorder or Disease of the Mind [ 14 ] Justice LeBel also recognizes that the term ‘mental disorder’ must be “…flexible enough to apply to any mental condition that, according to medical science in its current or future state, is indicative of a disorder that impairs the human mind or its functioning and that the recognition of which is compatible with the policy considerations that underlie the defence provided for in s. 16 of the Criminal Code .” [ 15 ] Justice Watt in R v S.H. , 2014 ONCA 303 , notes that mental disorder and disease of the mind are legal terms with significant medical, legal and policy components.

As expressed by Justice Watt, the medical characterization of the condition or its origin in

medical terms is not as critical as its effect on the capacity of the accused. [16] Justice Watt indicates the following in relation to medical evidence: [79] Expert medical evidence about the cause, nature and symptoms of the abnormal condition from which an accused suffered andhow that condition is viewed and characterized from a medical perspective is relevant to and admissible for a judge’s determination ofwhether the condition constitutes a disease of the mind, and thus a mental disorder.

Medical opinions are not dispositive of andsometimes of limited value in the ultimate decision of whether, in law, a condition amounts to a mental disorder: Rabey (Ont.

C.A.), at p.13; Stone, at para. 199; and Luedecke, at para. 103. (ii) Ability to Appreciate the Nature and Quality of the Act or Omission or Knowing it was Wrong [17] Madam Justice McLachlin (as she then was) in R v Oommen, (SCC), [1994] 2 SCR 507 [Oommen], says onpage 13: The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to makea rational choice about whether to do it or not. [18] Significantly, Madam Justice McLachlin concludes the judgment in Oommen by saying: 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.[1] [19] In R v Lesann, 2014 SKQB 332 [Lesann], Madam Justice Dawson, referring to the Supreme Court of Canada decision inChaulk and Ruzic, summarized this branch of the test as follows: 49 This essential basis for attributing criminal responsibility thus gives rise to a presumption that each individual can distinguishright from wrong.

The criminal law relies on a presumption that every person is an autonomous and rational being whose acts andomissions can attract liability. This presumption is not absolute, however; it can be rebutted by proving that the accused did not at thematerial time have the level of autonomy or rationality required to attract criminal liability.

Thus, criminal responsibility will not beimposed if the accused gives an excuse for his or her act that is accepted in our society, in which there is "a fundamental conviction thatcriminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right andwrong" (R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303, at p. 1397).

In Ruzic, the Court recognized the existence of aprinciple of fundamental justice that "only voluntary conduct -- behaviour that is the product of a free will and controlled body,unhindered by external constraints -- should attract the penalty and stigma of criminal liability" (para. 47). ANALYSIS [20] Defence counsel submits that Jereda should be found not criminally responsible. As indicated, there are two elements to thistest:

(1) Does Jereda suffer from a disease of the mind? and

(2) Did this disease of the mind render him incapable of appreciating thenature and quality of the act of injuring his dog or knowing that it was wrong? [21] The medical evidence is consistent that Jereda suffered from post-traumatic stress disorder and bipolar disorder. Havingconsidered this evidence, I am satisfied that Jereda suffers a disease of the mind as it has been interpreted in s. 16 of the Criminal Code. [22] The medical evidence conflicts as to whether Jereda’s mental illnesses rendered him incapable of appreciating the nature andquality of his act or knowing that it was wrong. [23] Dr.

Mela says that any dissociative state experienced by Jereda would have been transient. The effects of Jereda’s mentaldisorder would not be sufficient to negate his ability to know the consequences of his actions or to know his actions were wrongaccording to Dr. Mela. [24] Dr. Passey indicates that the dissociative state experienced by Jereda, irrespective of its duration, was such that he believes

Jereda did not have the ability to know the consequences of his actions or that his behaviour was wrong until well after the incident. [ 25 ] In these proceedings I have not heard viva voce testimony. Counsel agreed to the elements of the offence in an Agreed Statement of Facts and the defence was advanced by the filing of written reports with the consent of the Crown. Specifically, in this case, the accused did not testify.

Given the position of counsel in this case, I am proceeding on the basis as outlined by Madam Justice Dawson in Lesann : [22] There is an issue that must be dealt with prior to determining the defence of not criminally responsible. This deals with the fact that the accused did not testify. The accused’s evidence about what happened has been put before the court through those people that interacted with him and with whom he spoke, including friends, police, the psychiatrists and psychologist who interviewed him and testified.

As well, as indicated, certain admissions and agreements in relation to facts were placed into evidence. The Crown and defence agreed that documents were admitted for the truth of their contents. As well, Crown and defence agreed that the experts could rely on information, including medical records relating to Mr. Lesann, that were not in evidence, to formulate their opinions. [ 26 ] Jereda’s evidence can be derived from the expert reports recounting his recollection of the incident. According to Dr. Mela’s report, Jereda told him that at the time of the incident “he broke”: “Basically, I broke.

My anger broke, my frustration broke me so much and once I realized he was not in my yard, I assumed he went back”. He expressed that from here on things got “jumbled”. He further described how “I went numb, I went completely numb as if I was put down in a mission. I felt nothing. All I could see is red. I was in that dark place. That dark zone. I was watching myself almost. I recall going across the street to my house. I recall going to my garage, going back across the street and the next thing I remember is I had Cody held by the collar.

I remember trying to drag him out from underneath the deck and I remember yelling. I remember Jessica coming out with her dog. I remember her, she looked as if she was crying and yelling at me and then at some point in time, around our interaction between Jessica and myself we had gone across the street to my driveway. I let go of Cody and then I was in my driveway. I am just pacing back and forth trying to, I don’t know what I was trying to do, calm down or get myself under control. Put myself together”. [ 27 ] In Dr.

Passey’s report, Jereda describes a similar recollection: He recalled that when he went under the deck the dog bolted. He described going numb and feeling nothing, which was very similar to when he was in his “mission mode” overseas with the military. He said that he was in a dark place and that things became disjointed. He stated that he had trouble remembering events from that point on and felt like he was external and watching himself. He apparently went back across the street to his garage and then returned to the neighbour’s deck.

He did not remember getting a knife or where he would have got it. [ 28 ] As indicated, Dr. Hart, in her report, spoke with Jereda within three days of the incident. Dr. Hart’s recount of the telephone conversation is not as clearly indicative of a dissociative state as the account provided to Dr. Mela or Dr. Passey. [ 29 ] The opinion evidence in this case is not consistent but has been jointly placed before the Court by counsel. The opinion of Dr. Mela is that Jereda acted voluntarily on the spur of the moment out of anger. The opinion of Dr.

Passey is that given Jereda’s history and the circumstances, he was experiencing a dissociative state and could not appreciate the nature and quality of his actions or know that they were wrong. [ 30 ] Section 16(2) of the Criminal Code requires that I presume that Jereda was capable of appreciating the nature and quality of his actions, injuring his dog, and had knowledge of the wrongfulness of these actions unless the contrary is proven on a balance of probabilities. [ 31 ] The following facts are significant to me: a. Jereda’s military experience as detailed in Dr. Mela’s report; b.

Jereda’s medical history including his undisputed diagnosis of post-traumatic stress disorder and bipolar disorder; c. The brief duration of the incident and the acceptance in the medical opinion that Jereda experienced a dissociative state of unknown duration;

d. As noted in Dr. Hart’s report, Jereda was quite attached to Cody and credited the dog with saving his life. At the time of theincident Jereda “…was extremely distressed and overwhelmed and not aware of the wrongdoing or emotional implications of hisactions…”; e. Dr. Cooper’s report confirms that Jereda was admitted to hospital on January 21, 2014, very upset and frustrated. Jeredaremained in hospital for four days during which no episodes of dissociation were observed. Upon discharge, Dr.

Cooper encouragedJereda to follow a regime including individual and family counselling, medication, anger management programming, abstinence fromalcohol and drugs, personality assessment, and not to have access to any weapons. [32] Given these factors, in the context of all of the evidence, I am satisfied that when Jereda injured his dog and immediatelythereafter, he was not acting voluntarily, rather due to his post-traumatic stress disorder and related mental illness, he was incapable ofappreciating the nature and quality of his actions or that they were wrong. [33] I therefore find Jereda to be not criminally responsible.

Significantly, this is not an acquittal but rather a finding that I amsatisfied, on a balance of probabilities, that Jereda “did not at the material time have the level of autonomy or rationality required to attract criminal responsibility”.[2] [34] As a result of this finding, Jereda is required to abide by the jurisdiction of the Saskatchewan Review Board and follow theconditions imposed by the Review Board pursuant to

Part XX.1 of the Criminal Code. In Bouchard-Lebrun, Justice LeBel indicated thefollowing: [52] However, the defence of mental disorder remains unique. It does not result in acquittal of the accused, but instead leads to averdict of not criminally responsible. That verdict triggers an administrative process whose purpose is to determine whether the accusedis a significant threat to the safety of the public, to take any necessary action to control that threat and, if necessary, to provide theaccused with appropriate care.

A verdict of not criminally responsible on account of mental disorder thus gives effect to society’sinterest in ensuring that morally innocent offenders are treated rather than punished, while protecting the public as fully as possible. [53] An accused who is found not criminally responsible becomes subject to the scheme established in

Part XX.1 of the CriminalCode. Parliament adopted the current scheme after this Court had held in R. v. Swain, (SCC), [1991] 1 S.C.R. 933, thata Criminal Code provision requiring the automatic and indeterminate detention of an accused found not criminally responsible violatedthe right to liberty guaranteed by s. 7 of the Charter. In Winko v. British Columbia (Forensic Psychiatric Institute), (SCC), [1999] 2 S.C.R. 625, McLachlin J. (as she then was) explained the principles underlying the application of

Part XX.1 of theCriminal Code as follows: In

summary, the purpose of

Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill witha new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. Under

Part XX.1,the NCR accused is neither convicted nor acquitted. Instead, he or she is found not criminally responsible by reason of illness at the timeof the offence. This is not a finding of dangerousness. It is rather a finding that triggers a balanced assessment of the offender’s possibledangerousness and of what treatment associated measures are required to offset it. Throughout the process the offender is to be treatedwith dignity and accorded the maximum liberty compatible with

Part XX.1’s goals of public protection and fairness to the NCRaccused. [Emphasis added; para. 43.] [35] Given Jereda’s current circumstances, I have concluded that it is appropriate to conduct a disposition hearing in accordancewith s. 742.45 of the Criminal Code. [36] Dated this 11th day of June, A.D. 2015, at the City of Prince Albert, in the Province of Saskatchewan. _________________________ H. M. Harradence, J