[October 25, 2024] Recovered Memories [Kent J. Teskey J.]
AUTHOR’S NOTE: This decision revisits the complex issue of recovered memories in legal proceedings, an area that saw extensive litigation in the 1990s but has since seen relatively few recent cases addressing their reliability. The case serves as an important precedent for the defence regarding the scrutiny of memory reliability in traumatic contexts.
Often, trauma is cited as a reason to reconcile significant inconsistencies in a witness’s account, under the reasoning that trauma can affect memory recall. In this case, the witness claimed a memory of the events in question had been recovered gradually over six months of therapy. The trial judge was left to decide whether such recovered memories could be treated as accurate without expert testimony to validate the effects of trauma and therapy on memory reliability.
The court held that, in the absence of expert evidence substantiating the reliability of the recovered memory, it could not rely on the witness’s account at face value. While the Crown is not necessarily obligated to provide expert evidence on the impacts of counselling on memory, if it chooses not to, it cannot expect the court to assume the memory’s reliability automatically. Given the Crown’s burden to prove guilt beyond a reasonable doubt, the lack of evidence supporting the memory recovery process contributed to the acquittal in this case, emphasizing the importance of corroborative evidence when dealing with traumatic and recovered memories.
Introduction
[1] The Accused is charged with one count of sexual assault, contrary to s 271 of the Criminal Code of Canada. While the Crown called four witnesses, the core of its case was led through the complainant. The Accused testified in his own defence. For the reasons that follow, I find the Accused not guilty.
Evidence of the Complainant
[2] The Complainant travelled from Slave Lake with a co-worker friend on January 28, 2023, to attend an Oilers game. They checked into a hotel in Downtown Edmonton and started the evening with drinks in the lounge. She recalled having two beers and an orange spritzer. They attended the game, where she remembered having something in the neighbourhood of 10 drinks, Twisted Tea Tall Cans, which she believed cost $260.
[3] After the game, the pair looked for a pub for drinks and food. They became lost and encountered a homeless man who gave them directions and led them to a pizza place. While in the pizza place, the complainant was on her phone with a friend while paying; she proceeded to hand the phone to the homeless man with the intention that he would continue the conversation with the friend on the other end of the call. The homeless man proceeded to steal the phone and flee the restaurant. While she estimated that she had been about a seven on a scale of 1 to 10 for intoxication, she testified that the shock of losing her phone had the effect of sobering her up. After attempting to find the homeless man, the pair took an Uber back to the hotel.
[4] When they arrived at the room, a disagreement arose between the complainant and her friend, which caused her to be upset, and she decided to have a cigarette in the parkade. She changed from her game clothes into more comfortable clothing. She took the elevator to the Parkade, where she encountered the accused, who was on duty as a security guard. She asked him whether or not she could smoke in the parkade. He replied that she could and asked if he could join her. She testified that she had a pleasant conversation for roughly 25 minutes, during which she told him about her evening, including the game, the homeless man, and the argument with her friend. She described him as kind and attentive. Suddenly, the accused moved in for a kiss that she ducked away from. She told the accused that she had a phobia of kissing. After a short period, he tried to kiss her again, and she was caught off guard. They kissed briefly until the complainant put her arms around him and tapped his back to signal him to stop. She testified that she did not consent to either kiss. She told him she should return to the room, and they walked towards the elevator. She was not afraid of the accused at this point but was uncomfortable with what had occurred.
[5] They got on the elevator, and she pressed the button for the eleventh floor, and he pressed it for the 2nd floor. When the elevator stopped at the second floor, he got out, grabbed her by the forearm and violently pulled her into the hallway towards a quiet area with big bulky furniture. Initially, in her statements to police, she could not recall how she got off the elevator, believing she might have followed him out. She did not remember this detail when she spoke to a psychologist in April 2023 for a report filed in the civil litigation proceeding. She explained that it had taken a year and a half of therapy to process her memories, and as a result, memories that had been unavailable at the time had now become clear. [PJM Emphasis]
[6] He began to kiss and fondle her. She told him no on repeated occasions. He put his hands down her pants and cupped her vagina. She tried to move his hands to her chest, which she viewed as better than the alternative. He wanted to get her to touch his penis and ultimately pushed her to his knees, where she was forced to perform oral sex until she ejaculated in her mouth and on her body. She then vomited on the carpet. Together, they went to a bathroom on the floor, where she cleaned up and went to the room.
[7] Police were involved that evening and took a statement at the Royal Alexandra Hospital at roughly 4 AM. She then provided a written statement on February 4, 2023.
Assessment of the Complainant’s Evidence
[9] There is no presumption of reliability in a criminal case. As part of its burden, the Crown must establish that its evidence is credible and reliable.
[10] I found the complainant to be generally credible in that she was trying to tell the truth as she believed it to be. She answered the questions directly and appeared to be trying to provide a truthful narrative.
[11] The defence suggested that the complainant was being dishonest in her allegation to advance a civil claim for sexual assault. I do not accept this submission. Simply because a complainant seeks a civil remedy for an alleged crime does not automatically engage their credibility. I believe the complainant attempted to answer questions truthfully, and I do not believe she was colouring her evidence to seek an advantage.
[12] In my view, the central question I must consider is whether she is a reliable witness, and on this issue, I have significant concerns.
[13] First, the complainant had consumed significant amounts of alcohol that evening.
[14] The complainant testified that she believed that on a scale of 1 to 10 for intoxication, she was about a 7. This is a routine question asked of witnesses in Alberta Courtrooms. In my view, this question usually provides little assistance to a trier of fact in applying the issue of intoxication to testamentary factors.
[15] A self-assessment of intoxication is necessarily subjective, but when a witness is asked to provide a ‘score,’ it asks the witness to place them on an objective scale where one is stone-cold sober, and ten is profoundly intoxicated. To the extent that a witness can accurately assess their sobriety on such a range, I would then ask, what can the trier of fact do with that?
[17]….The complainant assessed herself as 7 out of 10 when she left the Oilers game, but that she sobered up significantly when her phone was stolen. Neither of these assertions is particularly probative of her actual state of intoxication.
[18] It is also the case that the observations of the other witnesses, including the accused, who observed her to be sober, may only give a partial picture of her mental state. Asking a witness whether a person had issues walking or talking does not necessarily provide evidence about their memory, judgment, and cognition.
[19] Having over 13 drinks over 6 or 7 hours is significant. But beyond that, I think that her level of intoxication is best understood by two discrete parts of her evidence.
[20] First, alcohol significantly affects one’s judgment and mood. I am struck by her decision to give her cell phone to a homeless man so he could speak to her friend. In my view, this speaks to an individual who was significantly intoxicated and made a decision that would be utterly unthinkable to someone with a sober mind.
[21] Second, there were numerous points in her evidence where the complainant had gaps in her memory. She explained a number of these gaps based on the trauma of the alleged assault. That said, some issues with her memory do not involve the assault, which is more consistent with alcohol intoxication. When speaking about the incident involving the homeless man, her recollection differed substantially from that of her friend. She recalled asking the homeless man for directions and having him lead them to a restaurant. Her friend testified that they were at the pizza shop, at which point she unexpectedly left and returned with the stranger. I prefer his evidence on this point.
The effect of Trauma and the recovery of Memory
[23] There were many points where the complainant explained a gap in her memory or inconsistency by reference to the trauma of the alleged event. She also testified that to the extent that her evidence at trial was inconsistent with her statement, it could be a reflection of her memory being revived by the process of therapy.
[24] Traditionally, consistency of a witness’s testimony over time is a hallmark of credibility and reliability. If the truth doesn’t change over time, so too, it is argued, should the evidence of a witness remain consistent.
[25] Courts have increasingly recognized that consistency is nuanced as a test for credibility. There are reasons why a narrative might evolve that is explained to the satisfaction of the trier of fact. For example, a child witness might profess fear or shame that caused them to provide incremental or delayed disclosure (R v D.D. 2000 SCC 43). This question should be assessed based on the evidence or lack of evidence on this point.
[26] There were two significant areas where the complainant’s evidence evolved.
[27] First, in her initial interview with the Police, the complainant said she wasn’t sure if the accused pulled her out of the elevator or if she followed him. A week later, when she provided a written statement to the police, she continued to profess uncertainty on this point. She continued to be uncertain when she spoke to an expert retained by her civil counsel and in an affidavit filed in civil proceedings.
[28] At trial 18 months later, she was adamant that she was forcefully pulled out of the elevator and that it was as a result of substantial therapy that she had come to that conclusion.
[29] The Crown did not seek to ask any questions in redirect on this issue. As a result, the explanation for the change in this evidence essentially amounts to an assertion that the memory was retrieved through therapy and that she is confident that it is accurate.
[30] As the Alberta Court of Appeal noted in R. v Garford, 2021 ABCA 338, the assessment of recovered or buried memory lies with the trial judge,
It will be for the trial judge to assess and weigh the explanation for the incremental disclosure, the breadth and scope of new allegations or details, and weigh them individually and collectively, in the overall assessment of the complainant’s credibility. A trial judge, who sees and hears the complainant, is in the best position to determine whether the added particulars are of such a magnitude that they leave her with a reasonable doubt, or whether they are adequately explained in the context of all the evidence. (Para 21)
[31] This is consistent with the comments of Justice McLachlin as she then was, in R. v Francois, 1993 CanLII 52 (SCC), where she wrote:
“[The complainant] denied the suggestion of cross-examining counsel that her recovered “memory” was the product of the pressure she was experiencing. Thus explored, the matter was left to the good judgment of the jury. It was open to the jury, with the knowledge of human nature that it is presumed to possess, to determine on the basis of common sense and experience whether they believed the complainant’s story of repressed and recovered memory, and whether the recollection she experienced in 1990 was the truth.”
[32] Marc Rosenberg, before his appointment to the Ontario Court of Appeal, observed:
“Repressed memory challenges the commonsense notion that memories become less reliable over time. These memories come flooding back apparently intact accompanied by powerful emotions appropriate to the event and filled with vivid and realistic detail. The very richness of the detail seems to carry its own confirmation of reliability. And if the memories are untrue, where did they come from and why are they there? If the memory is not true what possible motive does the witness have for remembering? Common sense and experience do not easily inform these questions.” M. Rosenberg, “Issues Arising In Criminal Prosecutions for Distant Events.” (1995)
[33] The challenge for the trier of fact is applying “knowledge of human nature… common sense and experience ” to an unusual and largely opaque memory process. I also need to be careful because a credible witness will believe that they are providing reliable evidence and will often be quite compelling in their testimony.
[34] I find that this is a significant inconsistency. It is difficult to understand how a witness could be unclear between being violently pulled from an elevator and voluntarily following the accused. This is a drastically different narrative and one that engages fundamental issues of the Crown’s theory that the complainant was lured and then physically forced into a private area by the accused to commit a sexual assault.
[35] I also find that the explanation provided by the complainant is insufficient. She testified that the therapy process had caused her to accurately resolve her uncertainty on this crucial point. I do not doubt that she genuinely believes this to be true. The question is whether I can be satisfied that she recalls this point accurately. On this question of whether her memory is reliable, I am unsure.
[36] While the Crown is not required to lead evidence to explain the effect that counselling might have on refining memory (See R. v Waterman, 2021 SCC 5), it always bears the onus to establish that the evidence to support a conviction is reliable. Whether one calls it refinement or recovery, where a witness’ evidence evolves, a court must be satisfied that this process is reliable. I have nothing more than the complainant’s assertion that she believes her trial evidence to be reliable. The Crown’s ultimate burden cannot rest on trust, and I have no evidence to support the reliability of this process. [PJM Emphasis]
[37] Reliability is a foundational concern in a witness’ evidence, so a thorough and probing analysis of the evidence is necessary. This point was powerfully made in the context of eyewitness evidence in R. v Atfield, 1983 ABCA 44 at 3,
“The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing and have been responsible for many cases of miscarriages of justice through mistaken identity. The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must be tested by a close scrutiny of other evidence….If the accuracy of the identification is left in doubt because the circumstances surrounding the identification are unfavorable, or supporting evidence is lacking or weak, honesty of the witnesses will not suffice to raise the case to the requisite standard of proof and a conviction so founded is unsatisfactory and unsafe and will be set aside. It should always be remembered that in the famous Adolph Beck case, twenty seemingly honest witnesses mistakenly identified Beck/ as the wrongdoer.”
[38] In my view, this caution applies equally to memory reconstruction. While I am mindful that there is no legal requirement of corroboration in a sexual assault prosecution, I share the view of Justice Presser in R. v Tan, 2023 ONSC 8549 at 117
“There is no legal requirement that a complainant’s evidence be corroborated before a conviction can follow: Criminal Code, s 274. However, where there are concerns about the reliability of a complainant’s testimony, “corroboration can provide a basis for resolving those concerns and concluding that guilt has been proven beyond a reasonable doubt”: R. v A.S., 2021 ONSC 8549, at para. 63. Consequently, from a practical perspective, the Crown will not be able to meet its burden of disproving the possibility that recovered memories of sexual assault are unreliable unless it can “point to some independent evidence that confirms the reality and accuracy” of the complainant’s present memory.”
[39] In my view, there is no independent evidence that would allow me to resolve this issue. Moreover, it is an issue that goes centrally to the Complainant’s core allegation that she was heading to the floor that her room was on and had no reason to get off on the second floor. I have no basis on the evidence to find that the Complainant’s recovered memory on this central point is reliable.
[40] Second, in her trial evidence, the complainant testified that she pulled the accused’s hands out of her pants because she was scared and thought it was better to put them on her chest. In her first statement to police, she told officers that she pulled the Accused’s hands out because she hadn’t shaved her legs in two weeks. When confronted in cross-examination, she stated that she was traumatized and that she wasn’t making sense in her statement.
[41] Is it possible that a sexual assault complainant will make a nonsensical remark out of trauma? Yes. But it remains that it is inconsistent with her trial evidence, and inconsistency cannot be insulated from scrutiny out of sympathy for a traumatic experience. Moreover, if I were to accept that part of her first interview was unreliable or nonsensical, on what basis am I to conclude that the rest of her interview, which was consistent with the Crown’s theory, ought to be considered reliable? [PJM Emphasis]
[42] Credible but potentially unreliable witnesses are a challenge for triers of fact. They are inherently compelling because they genuinely believe in the veracity of the evidence they are giving. While I think the complainant was attempting to be truthful with the Court, I have significant concerns about her reliability.
Evidence of the Accused
[43] The Accused testified in his own defence. He confirmed that he had been employed as a security guard in January of 2023 and had been posted to this hotel on January 28, 2023. He was approached by the complainant, who asked him if she could smoke in the parkade and offered him a cigarette. They found a quiet area and had a friendly conversation. She expressed shame over having lost her phone earlier in the evening. He described the complainant as doing most of the speaking and testified that he mostly listened. He told her that she was beautiful, and he described the tone of the conversation as flirtatious. After about 25 minutes, they mutually kissed and found a private space to continue their encounter.
[44] They took an elevator to the second floor, where the restaurant was located. They went down a quiet hallway to some furniture, where they continued to kiss. He confirmed that he put his hands down her pants, which she removed, and put them on her chest. She proceeded to touch his penis and ultimately performed oral sex on him to the point of ejaculation, which occurred in her mouth and hair.
[45] After ejaculation, the complainant vomited on the floor, and they went to a bathroom for her to clean up. She then returned to her room, and he continued his duties. He denied that the incident at the front desk occurred.
[46] On his evidence, the incident was a voluntary, consensual and mutual sexual encounter among strangers who had just met. The encounter he described was brief and transactional. English is not the accused’s first language. While I found much of his evidence was concrete and, at some level, lacking in detail, I find that some of that related to language proficiency issues rather than his credibility.
Assessment of Credibility.
[48] This case largely comes down to assessing two competing witnesses who have provided diametrically different evidence around a similar overall narrative. It is fundamental to the Crown’s burden to prove its case beyond a reasonable doubt that a judge does not simply pick between competing versions of evidence. To convict, I must be sure about the guilt of the accused, notwithstanding his denial under oath.
[49] While I believe the complainant was generally credible, that is not the complete analysis. As the Ontario Court of Appeal noted in R. v Norman, 1993 CanLII 3387, “The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is paramount.”
[50] This case engages a wide variety of concerns about the complainant’s evidence. The effect of alcohol and the impact of the post-event reconstruction of her evidence cloud my ability to find her testimony reliable. The challenge is that once a Court is confronted with evidence of unreliability on crucial aspects of evidence, the next question is, upon what basis can I find that the rest of her evidence is otherwise reliable? I recognize that the Complainant was trying to be truthful with the Court. I am simply not satisfied that her evidence is reliable enough to prove this case to the criminal standard of proof beyond a reasonable doubt.
[51] While the Accused was largely unshaken in his evidence, I must consider his testimony in light of all the evidence, including the complainant’s. While I don’t reject his evidence, I cannot accept it either.
[52] I do not have the requisite confidence in what occurred in this matter. The Crown has failed to prove its case beyond a reasonable doubt.
[53] The Accused is found not guilty.
[October 22, 2024] Sentencing: Mental Health Mitigation [Reasons by Winteringham J.A. with Newbury and Grauer JJ.A. concurring]
AUTHOR’S NOTE: In sentencing, mental health mitigation can substantially reduce a sentence if the Defence establishes a causal connection between the mental disorder and the offence. The disorder does not have to be the sole cause but must be shown to contribute to the offending behavior. This case emphasizes the potential impact of mental health on sentencing outcomes, as the accused, suffering from an incompletely diagnosed psychotic disorder, received a reduced sentence due to the disorder’s role in the offense.
Initially sentenced to 10 years for shooting at a police station and parking lot (with no one present), the Court reduced the sentence to 5 years after finding the mental health issues were a significant factor. This case underscores the importance of investigating and presenting mental health conditions in sentencing, as even an incomplete diagnosis can meaningfully influence the degree of culpability and appropriate punishment.
Introduction
[1] Following a trial by judge alone in the British Columbia Supreme Court, the appellant was sentenced to a global sentence of ten years (including eight and a half years for reckless discharge of a firearm, eight and a half years for mischief endangering life, and one and a half years consecutive for flight from police officer), R. v. Russell, 2023 BCSC 2039. The appellant seeks leave to appeal the sentence and should leave be granted, a reduction of the sentence.
[2] The offences occurred on November 25, 2021 when the appellant fired multiple rounds with his rifle at the Vanderhoof RCMP detachment’s windows and at unoccupied police vehicles parked at the detachment. After the shooting, the appellant drove away. He was pursued by the police for several kilometres before he stopped. The appellant was acquitted of attempted murder, but convicted of a number of firearms and related Criminal Code, R.S.C. 1985, c. C-46, offences including recklessly discharging a firearm, (s. 244.2(3)(b)), possession of a weapon for a purpose dangerous to the public peace (s. 88(1)), transporting a firearm in a careless manner (s. 86(1)), committing mischief causing danger to life by wilfully discharging a firearm (s. 430(2)), committing mischief by wilfully discharging a firearm into the detachment and into RCMP vehicles (s. 430(3)), and flight from a police officer (s. 320.17).
[3] In this case, there was evidence that the appellant had experienced psychotic episodes (and had twice been hospitalized) in the time leading up to the shooting. The parties disagreed about the connection between the appellant’s mental illness and the offences. The appellant contends the judge erred by misapprehending the evidence of his mental illness. He submits the judge placed too much weight on denunciation and deterrence and insufficient weight on mitigating factors, such as his mental illness.
Reasons for sentence
[8] The judge was faced with sentencing positions that were ten years apart—the Crown emphasizing denunciation and deterrence and the appellant focusing on rehabilitation. The Crown sought a global sentence of 10–12 years, allocating 8–10 years for the charges of reckless discharge of a firearm and mischief endangering life, two years consecutive for the charge of flight from police, and concurrent sentences for the remaining counts. The Crown emphasized the planned and deliberate nature of the attack on the Vanderhoof RCMP detachment and its impact on individual members and on the community. The Crown also emphasized that the case law supported “harsh sanctions upon those who would inflict violence upon the police” and that “there’s a higher element of deterrence and denunciation [for] crimes such as [these]”.
[9] At the sentencing hearing, the appellant tendered additional psychiatric and medical evidence about his mental illness leading up to and including the date of the incident. He submitted that he should be sentenced to “time served” (almost three years after accounting for pre-trial credit) and a two-year probation order. He focused on mitigating factors including the fact that he was a first-time offender who was suffering from mental illness at the time of the offence and that his mental illness had since stabilized.
[19] The judge next set out the sentencing principles, noting that “[d]enunciation and deterrence are primary factors in firearms offences and offences against the police” (at para. 45). She then identified the aggravating factors to be:
a) “[t]argeting [l]aw [e]nforcement” (at para. 49), stating this was a “significant” aggravating factor (at para. 50);
b) the “proven circumstances of [the] offences”, including the deliberate planning and execution of the attack on the RCMP detachment and the number of shots fired (at para. 54);
c) impact on the individual RCMP members (at para. 55) and the fact the offences put the safety of the community at risk (at para. 56); and
d) the conduct had created a “very real risk of escalation” and lack of injury to those working in the detachment “was simply a matter of luck” (at para. 57).
The judge concluded this portion of her reasons, by commenting that she considered the appellant’s “moral culpability in this case to be very high, and the gravity of the offenses to be very weighty.” (at para. 58).
[20] The judge found the following to be mitigating factors:
a) At the time of these offences, the appellant was a first-time offender (at para. 59).
b) The appellant had a stable work history and strong family support, that increase his chances of rehabilitation (at para. 60).
c) His current good behavior, his consistent consent to treatment through medication, and his sobriety in custody also tend to support his chances of rehabilitation (at para. 61).
d) The appellant’s statement to the court indicated remorse and some further insight into his illness and substance abuse (at para. 62).
[21] Regarding mental disorder, the judge reviewed the evidence before her and the authorities requiring proof of a causal connection between the mental illness and offending conduct. On this point, she concluded as follows:
[76] I consider that [the appellant’s] diagnoses of unspecified psychiatric disorder and previous alcohol abuse likely had some contribution to his mental state at the time of the offence. I therefore consider it to be a generally mitigating factor in this case. However, the evidence does not establish the extent or nature of this contribution. I also have concerns, as stated above, as to the understanding and insight [the appellant] has demonstrated with respect to his condition on the evidence he has placed before me.
[Emphasis added.]
[27] The judge concluded that the ten-year sentence was “an overall fit sentence that reflects the very significant gravity of [the appellant’s] conduct” (at para. 134).
Did the judge err in principle in her assessment of mental illness and the role it played in the criminal conduct?
[36] In recent years, this Court has had occasion to address the role of mental illness in sentencing determinations. In particular, this Court has explained that when imposing sentence in cases involving mental illness, a judge must assess whether the evidence establishes, on a balance of probabilities, that the mental illness caused or contributed to the commission of the offence. For example, in R. v. G.J.M., 2024 BCCA 82 [G.J.M.], the Crown appealed a sentence of two years less a day of imprisonment plus three years of probation for the respondent’s repeated and prolonged sexual offending against his much younger half-sister, and possession of child pornography. Justice Dickson, writing for the Court, agreed with the Crown that the judge erred in principle because the judge erroneously found the respondent’s moral blameworthiness was diminished by his depression. In finding the judge had erred, Justice Dickson stated:
[54] As I have explained, the judge referred to Friesen in her analysis of the respondent’s moral blameworthiness. To repeat, at para. 114 of her reasons she stated “at para. 91 [of Friesen], the Court noted that offenders who suffer from mental disabilities and cognitive impairments ‘will likely have reduced moral culpability’ for their sexual offending”. However, that is not what the Court said. Rather, the Court observed that an offender’s moral culpability will likely be attenuated by mental disabilities that impose serious cognitive limitations, citing Scofield and Hood as examples. Those observations align with this Court’s guidance in Badhesa and Hagen. They do not suggest the mere presence of a mental disability or disorder will likely have that effect.
[Emphasis in original.]
[55] In Badhesa, the offender beat his mother to death and viciously assaulted his wife while experiencing an acute episode of psychotic depression and extreme intoxication. At the sentence hearing, a psychiatrist testified that his depression and alcohol consumption were “meshed” in a “chicken-and-egg” relationship. In that context, this Court explained that when imposing sentence in cases involving mental illness, a judge must determine whether it is more likely than not that the mental illness caused or contributed to the commission of the offence, including in relation to selfinduced intoxication. Citing R. v. Ayorech, 2012 ABCA 82 and R. v. Ramsay, 2012 ABCA 257, we also explained that “[i]impaired reasoning, delusional disorders and other compromised mental conditions distinguish those afflicted from ordinary, fully accountable offenders” and “a more lenient disposition than would otherwise be called for” may be appropriate for an offender “found to be criminally responsible, but suffering from a serious mental illness or disability”: at para. 40.
[Emphasis added].
[37] In G.J.M. (at para. 58), Justice Dickson also referred to R. v. Badhesa, 2019 BCCA 70 (at para. 43), where this court emphasized that “[g]eneralizations are insufficient” to establish a link between a mental illness or cognitive deficit and offending conduct that attenuates an offender’s moral culpability. Justice Dickson then referred to Nystrom, observing that detailed and specific evidence is necessary:
[22] Sentencing judges must consider evidence of the nature and magnitude of the disorder, determine its overall role in the offending conduct, and be satisfied on a balance of probabilities that the disorder caused or contributed to the commission of the offence. Detailed and specific medical evidence is necessary to properly understand the relationship between the disorder and the offending conduct; generalized evidence is not sufficient …
[Internal references omitted.]
[38] In G.J.M., the evidence did not establish, on a balance of probabilities, a link between the respondent’s mental health struggles and his sexual offending. Justice Dickson stated that the judge erred in concluding otherwise and finding the respondent’s long-standing depression diminished his moral blameworthiness.
[39] In the case at bar, the judge pressed the appellant about the mental illness evidence and whether it was more likely than not that the evidence proved the necessary link between the appellant’s mental illness and the shooting. The judge considered the evidentiary requirements as set out in Badhesa, R. v. McConnell, 2014 BCSC 1743, and R. v. Hurren, 2023 ONCA 187. The judge then concluded, at para. 76, that the appellant’s “diagnoses of unspecified psychiatric disorder and previous alcohol abuse likely had some contribution to his mental state at the time of the offence” (emphasis added) and considered it be a “generally mitigating factor in this case”. She was not able to determine the “extent or nature of this contribution”. She further stated, at para. 99, that although she was unable to find evidence of causation, she agreed that the unspecified psychotic disorder nevertheless attenuate[d] his moral culpability”.
[40] In G.J.M., this Court required detailed and specific evidence to prove the link between the mental illness and the offending conduct. In this case, the judge found that the evidence was sufficient such that she concluded it “likely had some contribution to his mental state at the time of the offence”, that his mental illness constituted a mitigating factor, and was sufficient to attenuate the appellant’s moral culpability (at para. 76). In my view, there was sufficient evidence before her to make the determinations she did. The problem, however, was the weight the judge placed on this evidence despite her findings. I will address this point below but first wish to describe the evidentiary record of mental illness in more detail. [PJM Emphasis]
[41] The judge had before her at least four pieces of evidence addressing the appellant’s mental illness and the offending conduct.
[42] First, the Crown called Dr. Mohau Kolisang, a psychiatrist, as a witness at the trial. The judge was satisfied that Dr. Kolisang was qualified to provide opinion evidence regarding the diagnosis, treatment, and prevention of mental, emotional, and behavioral disorders, including substance use disorders. The appellant had been taken to the hospital immediately following his arrest for the shooting offences. Dr. Kolisang assessed the appellant at the hospital. In his direct examination, Dr. Kolisang stated he was concerned that the appellant might be suffering from delirium because “when we asked questions, he tended to go off at a tangent, and some of the answers were, I would say off target”. Dr. Kolisang noted that the appellant reported “that he was a mountain man and [that] he causes avalanches with … howitzers”.
[43] Dr. Kolisang was concerned that the appellant was confused and “… not quite in touch with reality …”. Before completing his assessment, Dr. Kolisang requested that he be “medically cleared” to determine whether there was some sort of physical condition causing the confusion. Dr. Kolisang testified that he did not have a chance to see the appellant again that evening. However, he testified that he had assessed the appellant a few months earlier, in July 2021, and at that time, “we thought he was psychotic, he was deluded, and we recommended that he stay in hospital on treatment”. Dr. Kolisang prescribed Olanzapine, an anti-psychotic medication, in July 2021.
[44] In his evidence, Dr. Kolisang described the circumstances surrounding the July 2021 hospitalization and a subsequent hospitalization on August 15, 2021, when the appellant presented as “quite paranoid”. He was “diagnosed to be suffering from psychosis [not otherwise specified] with delusions of reference, visual and possible auditory hallucinations”.
[46] Dr. Kolisang summarized his impression of the appellant’s mental state as follows:
… [The appellant] does not have a clear recollection of the sequence of events that led up to his engagement with RCMP, although he does recall that he did have a head-on MVA. There does not appear to be any acute intracranial abnormality contributing to his presentation today, but we do believe that he is experiencing a delirium. As a result, we cannot rule out an underlying psychiatric condition. He does have a history of presenting with acute psychotic episodes that resolve with [O]lanzapine.
[48] The second piece of evidence about mental illness came from a pre-sentence report prepared for the assault on the taxi driver. The appellant committed this offence about one week prior to the shooting. The appellant told the probation officer that he was experiencing some depression and anxiety which was unusual and referred to himself as “crazy”. The appellant explained to the probation officer that he was not thinking straight, engaging in behaviour he normally would not, and that he was feeling a lot of confusion and disorientation around the time of the offence. The appellant reported that he started taking [Olanzapine] in 2021 just before the offence.
[49] Third, the Crown tendered a psychiatric report from Dr. J. Mark Levy dated August 22, 2023. Dr. Levy’s report was also prepared for the sentencing of the appellant’s assault on the taxi driver. Dr. Levy reported that the appellant had been taking Olanzapine while in custody. He had admitted to experiencing paranoia and psychosis in the past but was not experiencing anything like that at the time of his assessment in August 2023. Dr. Levy summarized the earlier psychiatric admissions in July, August, and November 2021.
[50] Following his assessment, Dr. Levy stated that “[a]t this point in time, the diagnosis is not completely clear, although [the appellant] definitely experienced psychotic symptoms”. He diagnosed the appellant with an unspecified psychotic disorder, currently in remission, and alcohol abuse/dependence, currently in remission in an institutional setting.
[51] Fourth, the judge received medical records documenting the appellant’s medical treatment, including psychiatric treatment, while in custody. These records showed the appellant had been prescribed Olanzapine since his arrest in November 2021 and appeared to have stabilized since taking the anti-psychotic medication.
[55] In my view, the judge correctly relied on the psychiatric evidence in support of her finding that the appellant’s mental illness constituted a mitigating factor and attenuated his moral culpability. She did not accept that the mental disorder was established to the “extent and nature” submitted by the appellant. With respect, the psychiatric evidence was, in my view, specific and compelling. The judge was entitled to allocate weight to the evidence even though the doctors could not agree on a precise diagnosis or explain with any certainty the exact role it played. In my view, the evidence tendered in this case was sufficient to satisfy the evidentiary requirements stipulated in Badhesa and G.J.M. Having made this factual finding, it was open to the judge to find the appellant’s mental condition to be a mitigating factor, which is what she did. [PJM Emphasis]
[56] The appellant submits, however, that the judge erred by placing insufficient weight on this mitigating factor, resulting in an unfit sentence. I agree. Having found that the mental illness evidence was sufficient to constitute a mitigating factor and attenuated the appellant’s moral culpability, the judge placed very little (if any) weight on it. In my view, her failure to do so constituted an error in principle. I will address the impact of the error after I assess the next issue that arises in this appeal.
Did the error(s) impact the fitness of the sentence imposed?
[72] This is not an error that occurred because of a departure from a sentencing range. Rather, the judge set the “upper range” by mingling factors from both sides of the proportionality analysis. In the circumstances, the range used by the judge was demonstrably higher than that expressed by the Court of Appeal for this offence in Oud. The disparity was further exacerbated when the judge failed to take sufficient account of the appellant’s mental illness, after finding it to be a mitigating factor and one which attenuated the appellant’s moral culpability.
[73] In my opinion, eight and a half years for the reckless discharge of a firearm and mischief endangering life plus one and a half years for the police pursuit resulted in a total sentence that was demonstrably unfit. This was not a case in which the judge determined the correct range and then decided that the circumstances warranted a departure from it. Rather, the judge started with ten years (with respect, in error) and then considered mitigating factors. These errors affected the judge’s proportionality analysis. As a result, the appellant, a first-time offender, received a “crushing” sentence.
[74] In sum, and with respect, the judge made two errors when she determined the sentence in this case. First, having found that the appellant’s moral culpability was attenuated by mental illness, she failed to provide sufficient weight to this mitigating factor. Second, she fell into error when she “set the upper range for this charge at closer to 10 years” and not five to six years as expressed in Oud. Both of these errors affected the fitness of the sentence that was ultimately imposed.
What is a fit sentence?
[79] In my view, the five to six-year range pronounced in Oud was a good place to begin the exercise of reaching a fit and proportionate sentence. The gravity of the offence is similar to that in Oud, multiple shots fired at an occupied building. A sentence of five to six years respects the fundamental principle of proportionality as it reflects the gravity of the offence and answers the objective of denunciation. This is a lengthy penitentiary sentence and will ensure public confidence in the justice system. Five years fully reflects the gravity of the offences at issue.
[80] For the second part of the proportionality analysis, the court must ensure the sentence does not exceed what is appropriate, given the moral blameworthiness of the appellant. Here, the proportionality principle “serves a limiting or restraining function and ensures justice for the [appellant]” (Ipeelee, at para. 37). The mitigating factors in this case are significant. The appellant was a first-time offender. The Oud range represented a significant penalty for him.
[81] He was also experiencing mental illness at the time of the offence which (as found by the judge) attenuated his moral culpability. The evidence of his psychosis was documented by medical professionals and by engaged family members. Fortunately, he has responded well to the anti-psychotic medication prescribed during his time in custody. I agree with the judge’s finding that his prospects for rehabilitation are good. The appellant has the support of family who are aware of his mental illness and what is required for him to stay well. In my view, the principle of restraint had a role to play in this case.
[82] I would impose a sentence of four years for reckless discharge and mischief endangering life and a consecutive sentence of one year for the police pursuit. I would sentence the appellant to a global period of imprisonment of five years.
Conclusion
[83] For all of these reasons, I would grant leave to the appellant to appeal the sentence, allow the appeal, and reduce the sentence to four years for reckless discharge of a firearm (count 2), four years for mischief endangering life (count 8) (concurrent), and one year consecutive for the offence of flight from a police officer (count 7). The global sentence is five years. This sentence commences on the date of the appellant’s original sentence, November 7, 2023, and account will be given for the pre-trial custody credit as found by the judge.1 All of the other ancillary orders remain in effect.
