R. v. Rackham Date:, 2012 BCPC 479

Citation: R. v. Rackham Date: 20120713 2012 BCPC 0479 File No: 8487-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEAN RACKHAM EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT RE NCRMD APPLICATION OF THE HONOURABLE JUDGE M. GIARDINI (Ruling/Judgment No. 9) Counsel for the Crown: V. Hartney Defence Counsel: B. Anderson Place of Hearing: Vancouver , B.C. Date of Judgment: July 13, 2012

[ 1 ] THE COURT: This is my ruling on the Crown's application that the accused, Mr. Dean Rackham, be found not to be criminally responsible by reason of a mental disorder. Much of the background to this application is set out in my ruling on the Crown's s. 672.11 application for an order to have Mr. Rackham psychiatrically assessed. That ruling was given on June 15, 2012.

Given the details set out in that ruling and the further details set out in the voluntariness voir dire rulings and in my reasons for judgment which were respectively given on April 12, 2012, April 16, 2012, (two voir dire rulings) and April 17, 2012, (reasons for judgment) and continued on April 18, 2012, I do not propose to set out in detail the background covered in those decisions. [ 2 ] In my ruling of June 15, 2012, I considered the Crown's application for a psychiatric assessment and granted that application. I concluded that reasonable grounds existed to require Mr.

Rackham to undergo a psychiatric assessment pursuant to s. 672.11 of the Code . There was some delay, but eventually the assessment took place and I received a copy of the most recent assessment, which is dated July 11, 2012. [ 3 ] This morning both parties asked if I would stand the case down because they needed additional time to discuss some matters. It was indicated the case was likely going to proceed to sentencing given the nature of the July 11, 2012, assessment. When the parties returned to court, the Crown asked for a further adjournment to consider its position.

I denied that request for a one-hour adjournment. I noted the matter had been set some weeks ago and, while the conclusion of the July 11, 2012 assessment was perhaps unexpected, if not surprising, I expected both parties to be prepared to proceed. However, I granted the Crown a short additional period of time to consider its position. [ 4 ] The Crown's position was that the court has sufficient evidence, based on what occurred at trial and based on the materials reviewed as part of the s. 672.11 application, to make a decision on the Crown's application regarding whether Mr.

Rackham is not criminally responsible by reason of a mental disorder. The Crown pointed to a number of factors I should take into account, including Mr. Rackham's behaviour at the time of the incidents on April 9, 2011, which led to two assaults, as well as the unprovoked assaults themselves. [ 5 ] The Crown also urged me to take into account comments Mr. Rackham made, the police description of his behaviour and his demeanour during both of the incidents of April 9 and May 26, 2011.

Further, the Crown urged me to also take into account his reaction in dealing with the police dog during the incident of May 26, 2011. The Crown further urged me to take into account the prior assessments prepared by Dr. Adilman on or about April 11, 2011, and by Dr. Hediger on May 12, 2011, June 29, 2011, September 21, 2011, and the most recent report of July 11, 2012. The Crown argued that the totality of the evidence before the court constitutes sufficient evidence to find, on a balance of probabilities, that Mr.

Rackham was not criminally responsible by reason of a mental disorder. [ 6 ] The defence raised two arguments. The first argument was that I should not proceed with the Crown's application because of the Crown's actions, namely, the Crown had resiled from an agreement. The second argument was that the evidence and materials before the court are not sufficient to allow the court to reach a conclusion on a balance of probabilities. In particular, the defence noted there was no full assessment of Mr.

Rackham's condition, consequently there was a paucity of evidence regarding his mental state. [ 7 ] The defence acknowledged that a decision under s. 16 need not necessarily be made on the basis of expert evidence, but pointed out that in none of the cases he had reviewed had that been the case. The defence noted that the procedure set in motion if an NCRMD designation is made has a severe impact on Mr. Rackham's liberty interests. This is a significant point to bear in mind in reaching a conclusion on this application.

The defence argued the evidence is simply not sufficient to allow the court to come to a conclusion with any confidence. [ 8 ] First I will address the issue raised by the defence that the Crown resiled from an agreement, then I will deal with the s. 16 issue. According to defence counsel, he and the Crown had discussions to the effect that if the assessment from the Forensic Psychiatric Services was not supportive of an NCRMD designation, the matter would proceed to sentencing and the NCRMD hearing would not proceed. [ 9 ] Defence counsel told the court that after reading the report of Dr.

Hediger, dated July 11, 2012, he confirmed that position with the prosecutor and the matter was briefly discussed in court earlier today. He was surprised by the Crown's changed position. He was put at a disadvantage and his client, who has been in custody for approximately 450 days, was also put at a disadvantage. [ 10 ] The Crown explained there had been discussions about what would happen if the Forensic Psychiatric report did not support an NCRMD finding, but there had been no agreement that the Crown would not proceed on an NCRMD application. The Crown acknowledged she was taken by surprise by Dr.

Hediger's report. She spoke to defence this morning and, at that time, it was her expectation the matter would proceed to sentencing. [ 11 ] The Crown said she had considered the report and her position and concluded the application had to meet a legal test. It is the courts that must decide whether the test is met and not the medical experts. She noted there was no prejudice to the defence or to the accused. It was only an hour or so that passed between the time she discussed it with the defence, earlier this morning, and when the decision to proceed was made. [ 12 ] The Supreme Court of Canada in R. v.

Nixon , [2011] 1 S.C.R. 566 , had occasion to deal with the issue of repudiation of an agreement. In that case, counsel had initially entered into a plea agreement whereby the accused would plead guilty to charges under the Traffic Safety Act and not to Criminal Code charges and there would be a joint recommendation for a fine. [ 13 ] In that case, the Acting Assistant Deputy Minister of the Criminal Justice Division of the Office of the Attorney General

became aware of the proposed resolution and initiated an inquiry. He concluded a plea to careless driving, in the circumstances, wascontrary to the interests of justice and would bring the administration of justice into disrepute. Therefore Crown counsel was instructedto withdraw the plea agreement and proceed to trial. [14] The accused responded by bringing a s. 7 Charter application alleging abuse of process and seeking a court direction requiringthe Crown to complete the plea agreement.

Those facts are somewhat different from the facts before me, but they set the scene. [15] The court reviewed the concept of prosecutorial discretion. It said a plea agreement should not be regarded as a contractualundertaking. Vitiating factors such as mistake, misrepresentation, or fraud, which usually form a private party's right to resile from abargain, do not capture the public interest considerations at play.

However, the court also noted that the situations in which the Crowncan properly repudiate a plea agreement are and must remain very rare. [16] In Nixon, the court concluded that the Crown's repudiation conduct could not be considered so unfair or oppressive to theaccused or so tainted by bad faith or improper motive that to allow the Crown to proceed on the dangerous driving Criminal Codecharges, rather than the Traffic Safety Act violations, would tarnish the integrity of the judicial system and thus constitute an abuse ofprocess. [17] The court noted the Acting Assistant Deputy Minister was acting in good faith and had determined that Crown counsel'sassessment of the strength of the evidence was erroneous.

On that basis, having regard to the seriousness of the offences, he concludedit would not be in the public interest to terminate the prosecution on the criminal charges. [18] The court said that could hardly be regarded as evidence of misconduct. The accused was returned to the position she was in atthe conclusion of the preliminary hearing, before the plea agreement was entered into, and thus suffered no prejudice as a result of therepudiation. [19] In this case, I find the Crown was not acting in bad faith and was not prompted by an improper motive.

She may have beenhasty in suggesting the matter would proceed straight to sentencing without fully considering her position, but quick decisions sometimeshave to be made, as counsel well know. The accused has not been prejudiced other than perhaps psychologically. I appreciate this is amatter that has been ongoing for a period of time and Mr. Rackham wishes to have it conclude. [20] Finally, I want to comment on the facts of this case. I accept defence counsel's description that the agreement was based on theprerequisite that the assessment had to come back not supportive of an NCRMD.

The assessment that came back noted Mr. Rackhamhad not granted or had refused to consent to the court-ordered assessment. He refused to partake or engage in any discussions, which ofcourse he was at liberty to do. Therefore, Dr. Hediger was not in a position to form a reliable opinion as to whether Mr. Rackham wassuffering from a mental disorder so as to be exempt from criminal responsibility. Therefore, technically speaking, the assessment did notcategorically state that the psychiatrist was not supportive of an NCRMD designation.

Ultimately, it is for the court to assess theevidence. [21] I now turn to the Crown's application that Mr. Rackham be found to be suffering from a mental disorder such that he was notcriminally responsible by virtue of s. 16 of the Criminal Code. As I pointed out in my ruling of June 15, 2012, s. 16 of the CriminalCode provides that a person is not criminally responsible: ... for

an act committed or an omission made 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. [22] That

section also contains a presumption that every person is presumed not to suffer from a mental disorder until the contrary isproven on a balance of probabilities. Furthermore, the burden of proof that an accused was suffering from a mental disorder so as to beexempt from criminal responsibility lies with the party that raises the issue. In this case, the burden of proof lies with the Crown. [23] "Mental disorder" is defined in s. 2 of the Criminal Code as a disease of the mind. In R. v. Cooper, (SCC),[1980] 1 S.C.R. 1149, the court addressed what is meant by "disease of the mind" and said: In

summary, one might say that in a legal sense "disease of the mind" embraces any illness, disorder or abnormal condition which impairsthe human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mentalstates such as hysteria or concussion. In order to support a defence of insanity ... the disease must, of course, be of such intensity as torender the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong. [24] Whether any particular mental condition is a disease of the mind is a question of law.

However, it is a question of fact whetherthe accused was suffering from a disease of the mind and, if he was, whether he was incapable of appreciating the nature and quality ofthe act or of knowing that it was wrong because of the presence of a mental disorder. [25] The case law makes it clear that the relevant time at which that determination must be made is when the act was committed, notbefore or after, but at the moment of the act. R. v. Cooper is authority for that proposition. If it is proven on a balance of probabilitiesthat Mr.

Rackham was suffering from a disease of the mind at the time of the offences which are before this court, then there are twodifferent bases upon which he may be found to be not criminally responsible. The first basis is that he was incapable of appreciating thenature and quality of the act. The second basis is that he was incapable of knowing the act was wrong. I agree with the defence that thebasis applicable in this case is the second one. [26] It is clear from the evidence as a whole, both with respect to the April 9 offences and the May 26 offences, that Mr.

Rackhamwas capable of appreciating the nature and quality of the acts he committed. The question I need to decide on this application is whether

he was incapable of knowing that the acts were wrong. [ 27 ] I now turn to the medical reports that were filed earlier in this case. I have summarized those reports at paragraphs 66 and 67 of my June 15, 2012, ruling. [ 28 ] The first report was prepared on or about April 11, 2011, by Dr. Adilman. He saw Mr. Rackham at that time. He found him to be acutely psychotic. He noted that Mr. Rackham had a long history of psychosis. He noted that: Mr.

Rackham's speech made no sense, he was delusional, he exhibited grandiose delusions, he had no insight and had impaired judgment, and he was hostile and uncooperative and exhibited incoherent rambling speech. In that report, Dr. Adilman concluded Mr. Rackham was unfit to stand trial at that time. [ 29 ] The other reports were prepared by Dr. Hediger. One was prepared on May 12, 2011. That report noted that Mr. Rackham was very agitated and angry on admission. He was verbally abusive to staff. He presented with paranoid delusions. Mr.

Rackham is reported to have said he was sent to hospital to be killed and he believed the hospital staff were involved in a conspiracy to cause his death. At that time, Mr. Rackham was certified under the Mental Health Act . [ 30 ] Mr. Rackham's condition improved with the passage of time, but his psychotic symptoms and limited insight continued for some time. Mr. Rackham's diagnosis was psychosis not otherwise specified, a differential diagnosis of bipolar mood disorder, and schizoaffective disorder. Mr. Rackham was discharged, however it is not specified exactly when that occurred.

On discharge, there was no evidence of psychosis. The doctor's conclusion was that Mr. Rackham did not meet the criteria for a finding of being unfit to stand trial. [ 31 ] Dr. Hediger prepared another report dated June 29, 2011. I pause to note that earlier I referred to a June 1st, 2011, report. I was in error about that date. June 1 was the date of admission, but the date of the report was June 29, 2011. [ 32 ] In that report, Dr. Hediger noted Mr. Rackham was calm and settled. There was no indication of significant irritability or agitation. He was not certifiable.

Based on his performance during the period of assessment, Mr. Rackham did not meet the criteria for a finding of being unfit to stand trial. His differential diagnosis continued to include psychosis not otherwise specified, bipolar mood disorder, and schizoaffective disorder. Dr. Hediger noted that Mr. Rackham required follow-up for monitoring his mental state and for medication and other supports. [ 33 ] I pause to note that the three reports I have referred to so far were all prepared with a view to determining whether Mr. Rackham was fit to stand trial.

The significance of that will be dealt with in a moment. [ 34 ] Dr. Hediger prepared another report on September 21, 2011. That report was prepared pursuant to a court order to determine whether Mr. Rackham was at the time of the commission of the alleged offences suffering from a mental disorder. As with the most current 2012 assessment, Mr. Rackham did not consent to the assessment, did not consent to discuss issues relevant to the assessment, and did not cooperate. At that time, there was no sustained evidence of active mood disorder and no symptoms or signs of depression or mania.

Also, there was no evidence of psychosis. [ 35 ] Dr. Hediger said that, given the lack of agreement on the facts and Mr. Rackham's unwillingness to cooperate with the assessment, he was not able to provide a reliable opinion as to whether Mr. Rackham was suffering a mental disorder so as to be exempt from criminal responsibility. The most recent report of July 11, 2012, has a similar conclusion. [ 36 ] I noted a moment ago that three of the five reports now before me were prepared in order to determine whether Mr. Rackham was unfit to stand trial. I said that was significant.

The reason it is significant is because s. 2 of the Criminal Code provides that a person is unfit to stand trial if he or she is: ... unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, [is] unable on account of mental disorder to (

a) understand the nature or object of the proceedings, (

b) understand the possible consequences of the proceedings, or (

c) communicate with counsel ... The significance of that provision is that the factors to be taken into account or the bases on which the assessment must be made are very different from those in an NCRMD application. Consequently, the three reports that were prepared to assess Mr. Rackham's fitness to stand trial are of limited assistance in determining the issue I have to address under s. 16 . The two reports that were specifically requested for the purpose of a s. 16 application are also of limited assistance. [ 37 ] The most recent report adds very little to the information that was previously available.

The earlier report of September 21, 2011, is a more complete report, but it does not contain the kind of information that would be helpful in determining Mr. Rackham's capability of knowing that the acts he committed were wrong. [ 38 ] I appreciate that the question of whether a mental condition is a disease of the mind is a question of law. Determining whether Mr. Rackham was incapable of knowing his acts were wrong is a question of fact but, in order to reach a conclusion on that question, the court needs an evidentiary foundation.

[39] In R. v. Schoenborn, [2010] B.C.J. No. 291, Powers J. made the following comments about medical evidence. At paragraph 26he noted that the Ontario Court of Appeal in R. v. Simpson (1977), (AB CA), 35 C.C.C. (2d) 333, stated the followingat paragraph 38: It is the function of the psychiatrist to describe the accused's mental condition and how it is considered from the medical point of view.

Itis for the Judge to decide whether the condition described is comprehended by the term "disease of the mind". [40] Powers J. continued at paragraph 27: The Crown pointed out in their argument that the evidence of medical witnesses with respect to the cause, nature and symptoms of thecondition and how it is viewed and characterized from a medical point of view, is highly relevant to the determination whether a personsuffers from a disease of the mind, but not determinative R. v.

Rabey, (1977), (ON CA), 37 C.C.C. (2d) 461, 79 D.L.R.(3d) 414 (Ont.C.A.) affirmed (SCC), [1980] 2 S.C.R. 513. [41] Powers J. continued at paragraph 31 as follows: In determining whether Mr. Schoenborn suffered a mental disorder at the time of the offence, I can consider the evidence of the experts,but as well, all of the evidence. As pointed out by Mr. Justice Dambrot in the decision R. v. Fell, [2003] O.J. No. 1145, Ontario S.C.J. atpara. 455: ... In deciding this issue, I am entitled to take into consideration the opinions of the experts concerning Mr. W.G.F.'s mental state at thetime of the homicide.

I am also entitled to take into account their opinions of his mental state at times prior to and subsequent to thehomicide, and make use of that evidence circumstantially to assist in determining his mental state at the relevant time. Of course, I amnot confined to the expert evidence in deciding this issue. In addition to the opinions of the experts, I can, in accordance with theprinciples I outlined in my discussion of hearsay evidence, take into consideration and use circumstantially the evidence of Mr.

W.G.F.'sself-reporting about his mental state and his behaviour, as well as any other evidence of his behaviour at the time of the homicide, priorto the homicide and subsequent to the homicide, including the notes that he recorded on his computer. In the end, however, on this issue,the expert evidence is of crucial importance. [42] In Mr. Rackham's case, I am urged by the Crown to proceed on the basis of all of the evidence before me. I have already notedthe importance and significance to Mr. Rackham's liberty interests of a finding of NCRMD.

What I have to decide is whether it isappropriate or possible to make such a finding on the evidence before me. As was noted in the excerpts I read from Schoenborn, theevidence of medical experts is not the only evidence that a court can and should take into account. However, expert evidence is ofcrucial importance. [43] The psychiatric evidence I have before me is not sufficient to allow me to make a proper assessment of Mr. Rackham's mentalcondition. In the circumstances of this case, it is not desirable or prudent to reach a conclusion that Mr.

Rackham suffers from a diseaseof the mind that affected his understanding and appreciation of his actions. Accordingly, this is not an appropriate case in which toconclude that Mr. Rackham was not criminally responsible on account of a mental disorder. [44] That is the end of my reasons. [REASONS CONCLUDED]