R. v. De Oliveira, 2010 ONSC 5847
Reasons for Judgment of Backhouse, J. delivered October 25,2010
BACKHOUSE J.:
[1] Adenir De Oliveira is charged with 3 counts of attempt murder and three counts of
assault. The accused has admitted he committed the acts alleged. The issue that must be
determined in this case is whether the accused has proved on a balance of probabilities that he is
not criminally responsible for the acts committed because at the relevant time he was suffering
from a mental disorder which falls within Section 16 of the Criminal Code . For convenience, I
set this provision out:
16. ( I) 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 (I). 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.
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[2] On Friday, February 13, 2009, 5 friends in grade 9 at Toronto Northern Secondary
School were enjoying a professional development day. They entered the Toronto subway at
Dufferin and Bloor around rush hour at approximately 4:30 p.m. The accused entered right
behind the boys who went down the stairs to the subway platform where they stood more or less
in a line facing the track, waiting for the eastbound train. As the train approached, the accused
pushed two of the boys, Jacob Greenspon and Asaf Shargall, onto the track and attempted to
push a third boy, Antony Zalenka, onto the track. Asaf managed to roll off the track under the
ledge of the subway platform and pull Jacob after him. The train ran over Jacob’s foot. He spent
3 Y2 weeks at the Hospital for Sick Children. Antony was tall for his age and was able to regain
his balance from the accused’s pushes and stay on the platform.
[3] Jacob underwent a number of surgical operations including skin grafts to repair the
damage to the first, second and third toes on his left foot. Ultimately two of his toes required
amputation. He required extensive physiotherapy both in and out of hospital to relearn to walk
and fortunately made good progress. Asaf was examined at the Hospital for Sick Children, was
treated for a swollen right knee and released. u
[4] Many witnesses testified to the pandemonium that erupted at the platform level when
people who had seen what had happened began to scream and yell that the boys had been pushed
onto the track, pointing at the accused as the person responsible. Russell Cormier, then a TTC
gate operator, was in the collector’s booth with the collector, Joseph DeGabrielis, when he heard
the squeal of the train’s emergency brakes being applied and people screaming. He came out of
the booth to see what was happening. He saw the accused coming up the stairs in the midst of a
crowd of people pointing at him and screaming that he had pushed the boys onto the subway
platform. In an effort to stop the accused, Mr.Cormier grabbed at him, striking him a couple of
times. The accused flailed his arms, striking Mr. Cormier’s shoulder and the side of his head.
Mr. Cormier described the accused as looking very distraught with a blank expression on his
face. He testified that the accused took off at a brisk pace, travelling south on Dufferin Street.
Mr. Cormier called 911 on his cellphone as he followed the accused past Weir Public School to a
PizzaHut at the Dufferin Mall where the accused sat down on a rock. Pending the arrival of the
police, Mr. Cormier heard the accused mumble in a different language, cry and then say in
English that he had tried to get help, that he had gone to the doctor and to the hospital and that
nobody would help him.
[5] After locking the money into the safe and padlocking the collector’s booth, TTC collector
Joseph DeGabrielis also gave chase. He caught up with Mr. Cormier and the accused in front of
Weir School and tried to pass to get ahead of the accused to box him in. He instructed him to
stop. As he approached the accused, the accused took a swing at him but did not connect. He
also attempted to photograph the accused and called 911. He described the accused as looking
more scared than violent. His eyes seemed glazed. His face was expressionless. He had a
stagger in his step. He reminded Mr. DeGabrielis of Frankenstein.
f6] Ricardo Mateus was waiting for his girlfriend near the collector’s booth at the Dufferin
SUbway. After hearing people yelling that the accused had pushed the boys onto the platform,
he too chased the accused. The accused noticed Mr. Mateus following him and he seemed to Mr.
Mateus to get angry. He reached into his jacket, causing Mr. Mateus to be concerned that he
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might have a weapon. When Mr. Mateus was approximately 4 or 5 feet from the accused, the
accused took a swing at him but was too far away to make impact. He described the accused as
walking slowly and looking confused and disoriented from beginning to end. His impression
was that there was something wrong with him mentally. He saw the accused sit down on the
rock at the PizzaHut and heard him say that he was sick, that he had been to the hospital and was
denied care.
[7] Michael Yng, one of the 5 boys waiting on the subway platform, after seeing his friends
pushed onto the track, initially gave chase before turning back out of concern for his friends. He
described the accused as running in an unnatural way wit~ his arm movements uncoordinated
with his leg movements. Antony Zelenka testified that after receiving two pushes on his left
shoulder strong enough to push him towards the edge of the platform, he turned around and
faced the accused before receiving another push. He also initially ran after the accused. He
described the accused as looking blankly through him, not at him and as showing no emotion in
his face. It gave him a creepy feeling. He testified that his impression was that the accused had
mental health issues, that he was uncoordinated and very unnatural in his movements. He
described the accused’s movements as a gallop-jog.
[8] Detecti ve Constable Brian testified that she first observed the accused after his arrest
sitting in the squad car and made a notation in her notebook of “EDP” (short for Emotionally
Disturbed Person.) She described him as staring blankly out of the car, not making eye contact,
looking dazed, seeming dishevelled, sweating and crying.
[9] At the police station, the accused was described by various officers as cooperative, to
have no problem following instructions, to be sombre, quiet, meek, and to cry occasionally. He
was described by Constable Martin, whose contact with hjm occurred early in the morning on
February 14, 2009 and who spoke to him in Portuguese, as being visibly upset, emotional and
crying. The booking video shows the accused with eyes downcast answering basic questions.
He stated that he was taking 3 different drugs and that he was having a problem with drugs.
When asked if he was having suicidal thoughts, he said, “somebody give me and a gun and I’ll
shoot myself.” When he was arrested, he had in his possession $882.00, 30 mg. of apotemazepan,
1 mg. of apo-Ioracepan and 75 mg. of venlafaxinexr. The videotape of the accused’s
police interview shows him answering basic questions but unable or unwilling to talk about what
had happened. He then kept his head down and did not answer any further questions.
fl 0] Teofila Prado testified that she met the accused in June or July, 2008 and a romantic
relationship began. She noticed that he seemed depressed around October, 2008 and although
there was no basis for him to be jealous, he questioned her about other men several times a week.
She gave him a key to her apartment to alleviate his concerns. When the accused returned from
Brazil in December, 2008, she noticed that he was always looking down. On January 7,2009, he
was again questioning her about other men and his whole body was shaking. She called an
ambulance to take him to emergency. From that date until! the date of the offences, there was a
major change in his behaviour. He ate only small amounts, he was very depressed and when she
was talking to him or the television was on, he was looking down, closing his eyes and not
paying attention or watching.
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Preliminary Evaluation of the accused on February 19,2009
[11] Dr. Julian Gojer, the accused’s expert witness, saw the accused at the Don Jail 6 days
following the offences. Dr. Gojer first attended in the afternoon and was unable to see the
accused who was reported to be unsettled and very disruptive. Dr. Gojer had to return later in
the day on February 19, 2009 and see him across a glass barrier with the use of a telephone. He
described the accused as unshaved, unkempt, anxious and at times looking fearful.
[12] The accused told him that he had been suffering from panic attacks since January, 2009
and that he had been started on antipsychotic medication. As soon as he began to take the
medication, he told Dr. Gojer that he began to experience auditory hallucinations which told
him to kill people. He denied any history of mental illness. He told Dr. Gojer that the guards
were arranging for him to be raped and after that his body would be incinerated. He stated that
he feared that at any moment he was going to be killed and believed that his conversations with
Dr. Gojer were being monitored, that there were people talking or making noises on the
telephone line and he could hear people talking in the distance. He appeared to Dr. Gojer to be
responding to auditory hallucinations while talking to him. When Dr. Gojer said that he did not
hear anyone, the accused became upset with him. The accused knew that he had been charged
with attempt murder for pushing young males onto the subway tracks.
0:.1
[13] Dr. Gojer’s opinion was that although a formal diagnosis was difficult to offer, the
accused was presenting as suffering from Acute Psychotic Episode, the etiology of which was
unclear.
[14] On February 20, 2009, the accused was admitted to the Assessment and Triage Unit at
the Centre of Addiction and Mental Health (“CAMH”) pursuant to a court-ordered psychiatric
assessment to determine whether he suffered from a mental disorder which would exempt him
from criminal responsibility under s.16 of the Criminal Code.
Forensic Assessments of the accused
[15] Dr. Gojer, the accused’s expert witness and Dr. Jonathon Rootenberg who performed the
court-ordered assessment at CAMH and was the Crown’s expert witness, each performed
forensic assessments of the accused. Each wrote a detailed report which was filed on consent.
Each testified and was cross-examined. Neither deviated from the conclusions reached in their
reports.
[16] Both psychiatrists are highly qualified. They agree that the accused is a very ill person.
They disagree on whether his illness meets the standard set out in s.16 of the Criminal Code.
Not every illness which may fairly be described as a mental disorder meets the Section 16
criteria. Dr. Gojer concluded that the accused is not criminally responsible. However, Dr.
Rootenberg, reached the opposite conclusion. The conclusion each psychiatrist reached is
summarized below.
lJ 5
Dr. Gojer
[1 7] The accused was suffering from a Major Depressive Illness with psychotic symptoms
prior to the alleged offences and these persisted subsequent to the alleged offenses when
Dr.Gojer saw him at the Don Jail and he was admitted to CAMH. The severity of his psychotic
symptoms was short lived and abated following admission and treatment with anti-psychotic
medication.
[18] The accused was experiencing very intense thoughts at the time the acts were committed
that were compelling him to kill himself or others. These thoughts can be understood to be
highly irrational. He said that he was unable to think of anything else at the time of the alleged
otTences- that he wanted to kill or push three innocent young boys who he had no knowledge of,
who had no relevance to him or his illness points to the sheer absurdity of his actions. That he
acted on his thoughts in the presence of the public with no <Jttempt to commit a crime and escape
detection also points to how irrational his thinking was at the time the acts were comniitted. He
has no significant history of aggression and as described by his family and his girlfriend, his
actions appear to be totally out of character for him. The thoughts that the accused had are akin
to severely depressed individuals who become quite irrational, believe their world is hopeless,
that there is nothing to live for and kill themselves, kill a loved one or even a child, believing that
it would be in the best interest of the loved one to die with them. The accused accepted the
thoughts in his mind, which he experienced as very intense and as if they were voices in his
head, that were directing him to kill himself or kill someone. He was not thinking of what the
consequences were. He was disconnected from all else at the moment he acted. His actions
were sudden and impulsive and in response to the irrational thoughts he had. His thinking was
severely clouded by the depressive illness he had. He clearly was unable to weigh the pros and
cons of his actions. While there are no indications that he was not able to appreciate the nature
and quality of his actions, or their legal wrongfulness, at the time of the alleged offences, he was
incapable of knowing that his actions were morally wrong. His severe depression with the
irrational thoughts of harming himself or others robbed him of the ability to exercise rational
choice. His actions were driven by irrational thinking and gerceptual experiences secondary to a
severe depressive illness that robbed him of the capacity to know that what he was doing was
morally wrong.
[19] In addition to the offences themselves, the accused’s demeanor described by all who saw
him at the time of the offences, his delusions about his girlfriend, his paranoid behaviour in jail,
his belief that the guards were going to rape and burn him and his bizarre behaviour in jail such
as dancing nude on the bed and toilet seat shortly after the offences support a finding of
psychotic episode.
[20] Rather than malingering, the accused tended to minimize the seriousness of what he was
experiencing at the time the acts were committed. His lack of cooperation with the psychological
testing performed by Dr. Wright at CAMH and his reporting of hallucinations upon being
admitted to CAMH were consistent with his severe depression at that time, agitation, paranoia
towards people and the medication that he was administered while at CAMH.
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[) r. Rootenberg
[21] The accused’s self-reported symptoms, including prior beneficial response to
antidepressant medication and historical information obtained from collateral sources is most
consistent with Major Depression and an Anxiety Disorder with panic features. A Depressive
Disorder with psychotic features is a diagnostic possibility for consideration but due to the clear
pattern of malingering demonstrated by the accused during his assessment, this is a less likely
di agnostic possibility.
[22] During the time period encompassing the offences, it appears from collateral information
and from the accused’s self-report that he was acting impulsively and was quite upset and
concerned that his girlfriend may have been seeing another man, specifically her ex-boyfriend.
This contributed to lowering his already diminished self-esteem. He reacted to this by
proceeding to the Ossington subway station in early January 2009 where he lay on the tracks in
an apparent suicide attempt, claiming that nobody cared about him and there”fore he should die.
He did not do so in response to auditory hallucinations commanding him to act in this manner.
[23] Collateral information from family members, from Dr. Eid and from the accused’s
girlfriend does not support the presence of psychotic symptomatology historically or during the
period immediately prior to the events in question; his reported distress is more consistent with
abrupt discontinuation of Effexor, including irritability, agitation, sleep disruption and sweating.
[24] The accused was unable to explain why he ran from the subway platform after pushing
the victims onto the tracks on February 13, 2009, given hisi;;:;tatement that he had not engaged in
any wrongdoing, and was merely responding to either command hallucinations or thoughts that
directed him to carry out the actions in question. However he was quite vague and contradictory
wi th respect to when he first heard either auditory hallucinations or experienced these thoughts
directing him to harm any individuals. The fact that he ran conveys knowledge of the possible
consequences of his actions resulting from the circumstances in question indicating his
awareness of the wrongfulness of his conduct at that time.
[25] The accused blamed the antipsychotic agent Seroquel for having caused the
hallucinations that he reportedly experienced during the time period encompassing the offences.
This medication is used to treat psychotic symptoms and perceptual disturbances, including
auditory hallucinations and would not cause them.
[26] Given the above, his credibility and veracity of his self-report is highly suspect, including
his assertion that he was responding to command hallucinations that directed him to push the
victims onto the subway tracks.
[27] Upon arrival at CAMH on February 20, 2009, the accused was seen by Dr. Blumberger,
the admitting physician who noted under diagnostic impressions:
“‘jyIr. De Oliveira is a 48 year old male with a history of major depression, possible
generalized anxiety disorder and panic attacks, who discontinued his medication in April
:2008 and reportedly experienced a major depressive episode. It appears as if he
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developed a severe worsening and psychosis associated with his depression. It is unlikely
that the medication caused the psychosis, but rather his symptoms became too severe and
treatment was instituted too late. Currently, he denigs all psychotic symptoms. This may
be related to him receiving a consistent dose of quetiapine while in jail, if in fact he
received it.”
Psychological Testing
[28] The Crown called Dr. Percy Wright, a psychologist who was part of the CAMH
multidisciplinary team. He first met with the accused to commence the psychological testing on
March 11, 2009, almost one month after the offences. By this time, the accused had been
receiving Effexor, Lorazepam and Olanzapine for some time. Dr. Wright thought it was 5 mg. of
Olanzapine the accused was receiving but did not pay close attention to what dosages of
medication he was receiving. He was not of the opinion that the medication the accused was
taking would affect the results of the psychological testing other than in quite subtle ways. He
did acknowledge that depression and sleeplessness could affect one’s energy to participate in
testing. He was of the opinion that even if extremely paranoid, one would very much want to
engage and explain one’s correct version of events. He 4Jld not kept notes of the amounts of
time he spent with the accused and estimated them. He made very few notes. His report referred
to “very brief interviews” with the accused.
[29] Of the 8 tests Dr. Wright wished to administer, the accused either declined to do them (in
the case of 3 tests-the Rey Complex Figure Test, PAl and ADS) or his effort was suspect (in
regard to 2 tests-the Bender and the WAIS III). The accused was administered the TOMM
which Dr. Wright found suggested malingering cognitive impairment, the M-FAST which Dr.
Wright found suggested malingering psychiatric symptoms and the SIMS which Dr. Wright
found suggested over reporting of neurological, affective, psychotic, low intelligence and
amnestic symptoms.
[30] Dr. Wright was cross-examined on why the psychological testing he performed did not
include the SIRS test. He accepted that the text “Clinical Assessment of Malingering and
Deception” by Richard Rogers was the most comprehensive text on the subject available to
psychologists and is viewed as scientifically valid in the scientific community. He agreed with
p.67 of the text wherein it states: t.t
“Vitacco and Rogers (2005) have recommended comprehensive three-stage model for
the detection of malingering in a correctional setting. Step 1 consists of an initial clinical
screening evalution. Step 2 involves a systematic screening using brief instruments such
as the MFast or SIMS. Step 3 calls for a comprehensive evaluation consisting of a
review of records, validating measures (SIRS, PAl or MMPI-2) and several interviews.
Although this approach is highly commendable, many correctional institutions will not
possess the resources needed to carry out the three stages on a regular basis.
The finding that an inmate patient has malingering one or more symptoms of
psychosis does not rule out the presence of true mental disorders … Kupers (2004) and
Knoll(2006) have suggested some clinical indicators that caution against classifications
ofmalingering(see Table 4.7). Inmates evidencing several of these indicators are likely
to have a genuine disorder, irrespective of response style issues.”
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[31] Dr. Wright further agreed with p.330 of the text wherein it states:
“Finally, the SIMS should not be used beyond its stated purpose as a screen for
malingering. The definitive classification of malingering requires more comprehensive
measures (eg.SIRS) and multiple sources of data(e.g.psychiatric and medical history).”
[32J Dr. Wright disagreed with the statement at p.321 that the SIRS test has been widely
adopted as the gold standard and should be considered the strongest measure for feigned mental
disorders. He testified that there was a sensitivity problem With the SIRS by which he meant that
it was not sensitive enough. He testified that the SIRS test had been used at CAMH and his
experience was that this measure missed very clear cases of malingering. The psychological
testing performed in conjunction with Dr. Gojer's assessment by Dr. M.Kalia included the SIRS
test and did not indicate malingering.
[33] Dr. Wright conceded that a finding that an inmate patient has malingered one or more
symptoms of psychosis does not rule out the presence of true mental disorders. On crossexamination,
he testified if one does not observe bizarre behaviour during a 45 day assessment
period, that is important. He testified that had the accused exhibited behaviour such as dancing
nude on a toilet that absolutely could affect his opinion of malingering and that this was
potentially psychotic behaviour. He had not read the notes from the Don Jail and was not aware
that the accused was described as uncontrollable and had been observed dancing nude on the bed
and toilet seat on February 19, 2009.
[34] Dr. Wright testified that psychosis is not a typical trajectory of depression and is suspect.
He stated that he had seen it claimed many times but he had not actually seen it more than a few
times.
Dr.Eid
[35] The Crown called Dr. Karim Eid, the accused’s family doctor since 1995. Dr. Eid is an
extremely busy family physician. Nevertheless, he made time for the accused, even when he
showed up without an appointment. In addition to treating the accused for physical ailments, he
treated him for depression, sleeplessness and symptoms of anxiety. In December, 2001, he
prescribed an anti-depressant, Effexor, which the accused took when he was given free samples
and was less compliant when he had to pay for the prescription. He described the accused as
appearing less depressed when he was taking the Effexor and more significantly disturbed when
he was not taking it. He identified other factors which played a role in exacerbating the
accused’s diHiculties including relationship difficulties and financial strain. In 2007, Dr. Eid
reported in his notes that the accused described himself as “getting crazy” when facing financial
strain.
[36 J Dr. Eid recorded in his notes that in April, 2007, the accused went to the emergency
department and was hospitalized at Humber Weston, that he was hallucinating and had to be
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strapped down in the hospital. Dr. Eid made an appointment for him to see a psychiatrist in
May, 2007 but the accused left a message at his office that he did not want to go. Dr. Eid
testified that he offered him a referral to a psychiatrist many times but the accused's response
was to say that he trusted him and that when Dr. Eid treated him, he got better.
[37] In October, 2007, Dr. Eid made a note that the accused was displaying agitated
behaviour, paranoia, making a threat and cursing other p~ople. He accused two women at
di fferent times of infidelity. Dr. Eid believed that he was paranoid and obsessive which he
recorded in his notes on January 5, 2009. On that date, Dr. Eid recorded in his notes that the
accused had stopped taking Effexor for 8 months because of erectile disfunction and that since
stopping it, he had no erectile problems and was reluctant to go back on it. Although his notes
do not reflect these facts, Dr. Eid asserted that he continued to advise the accused to seek a
psychiatric consultation and advised him to use Cialis.
[38] The day after seeing Dr. Eid on January 5, 2009 where Dr. Eid noted that he was
paranoid and obsessive and was not taking the Effexor, the accused lay on the subway tracks and
was taken by the police to Toronto Western Hospital. He reported to the emergency department
that he felt he was going to die, his mind was going crazy and he was unusually tight in his chest.
When he was followed up at the Urgent Care Clinic at the Toronto Western Hospital, he told
hospital authorities that he felt he was going to die and did not care, that he had knives in his
chest, that this was the strongest panic attack he had had and he felt that his brain was not
stopping.
[39] Dr. Mackenzie, a psychiatric resident, at the Urgent Care Clinic at Toronto Western
Hospital prepared a report dated January 9, 2009. The report referred to seeing the accused in
clinic after a serious, impulsive episode on January 6, 2009 where he lay on subway or streetcar
tracks in the context of a likely conflict with his current girlfriend. He was diagnosed as having
an adjustment disorder with anxiety, paranoid conduct, impulsive dramatic traits, relationship
issues and few friends and other support. The report noted that the accused was quite adamant
that he experiences no suicidal or homicidal ideation and that he has restarted his effexor which
he finds very helpful. The plan for his care which was discussed with Dr. Eid and forwarded to
him included:
1) referring him for an outpatient psychiatric assessment if Dr. Eid continued to have
concerns about his mental state in the days and weeks to come; and
2) sending him for a risk assessment through Forensic Psychiatry (available through
CAMH) if Dr. Eid had any concerns about his risk of violence toward himself or another
ego his girlfriend.
[40] Dr. Eid saw the accused on 2 further occasions following his laying on the subway tracks,
January 21, 2009 and February 2, 2009. The accused complained of panic attacks, sleeplessness,
great anxiety and agitation. On neither occasion did Dr. Eid observe any hallucinations or
psychosis and the accused denied feeling suicidal. On February 2, 2009, he prescribed the
:lccllsed the anti-psychotic medication, seroquel.
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[41] There is no evidence that Dr. Eid at any time provided a prescription for Cialis or that he
arranged a psychiatric consultation or signed a referral for such a consultation (other than on the
one occasion in 2007 referred to above). Dr. Eid believed the accused was functioning under his
care and therefore a psychiatric referral was unnecessary nor did he think the accused would
agree to go. He took comfort from Dr. Mackenzie’s assessment which Dr. Eid felt was
consistent with his own opinion and treatment.
Submissions of the Parties
Defence Submissions
[42] The defence submits the following:
[ 43] The accused’s mental state at the time of the offences was so disordered by a disease of
the mind (either major depression or major depression with psychotic episode) that he was
unable to distinguish between moral right and wrong. Most evidence points in the direction of n
the accused meeting the Section16 criteria: the irrational nature of the crime, the observations by
the civilian witnesses, the police and the videos of the accused at the time of the offences, the
evidence of Ms. Prado of his increasing depression in January, 2009, the observation of the
accused’s brother in Brazil who spent 28 days with him in December, 2008 that he was getting
increasingly worse, the accused’s paranoia and obsession with unfaithfulness noted by Dr. Eid in
January, 2009, his panic attacks, his loss of almost 10% of his weight, his laying down on the
subway tracks and his bizarre behaviour as observed shortly after his arrest at the Don Jail and
by Dr. Gojer. The Crown’s suggestion that the accused attacked the victims because they were
young and happy and had everything to look forward to in their lives and he was angry is pure
speculation.
[44] Dr. Rootenberg’s analysis is flawed because: (i) he failed to consider significant
evidence; (ii) he relied upon flawed psychological testing; and (iii) early in the assessment, the
accused was prescribed anti-psychotic medication. Dr. Rootenberg completed his assessment
and concluded that the accused did not meet the Section 16 criteria without seeing the TTC
surveillance tape of the accused at the scene, the other ‘?:ideos of the accused walking down
Dufferin Street, the Don Jail records, the booking tape, the police interview tape, the tape of the
interview of the accused by the police, the police notes and the witness statements.
[45] The purpose of the Court-ordered assessment was to assess whether the accused suffered
from a mental disorder within Section 16, not to treat him by prescribing anti-psychotic
medication prior to forming an opinion and thereby polluting the assessment. The absence of
psychotic symptoms relied upon by Dr. Rootenberg is due to his failure to be thorough, to his
discounting the accused’s talk of guards wanting to rape and burn him as a realistic fear of
threats by the guards and by ignoring the observations of Dr.Gojer recorded in his February 19,
2009 report.
r46] Dr. Wright’s psychological testing is completely flawed because it did not begin until
:lIl11ost two weeks after the accused began to receive the anti-psychotic medication, Olanzapane,
Dr. Wright had available only the material Dr. Rootenberg had, the accused only completed 3
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tests and Dr. Wright did not use the SIRS test, considered the gold standard test for feigned
mental disorders.
[47] It is inconsistent for Dr. Rootenberg to conclude that the accused was not experiencing a
psychotic episode and yet prescribe anti-psychotic medication and continue to prescribe it for the
accused on his discharge from CAMH.
[481 Foundational to Dr. Rootenberg's conclusion that the accused was malingering and that
he knew his conduct was wrong was the accused running from the scene yet Dr. Rootenberg did
not have the videos and witness statements that suggested that the accused may have been
running in response to the people screaming and pointing at"him.
[49] If the Court finds that the accused does not fall within Section 16, the Crown has not
established the specific intention necessary to prove attempt murder.
Crown Submissions
[50] The Crown submits the following:
[5 1] It is conceded that there is evidence the accused suffered from a mental disorder or
disease of the mind as defined in Section 16 but it did not impact on the accused to the extent
that it rendered him incapable of knowing that the acts he committed were morally wrong.
The accused told Dr. Gojer in an interview in August, 2010 that he knew that if he jumped, he
would be dead and that if he pushed the boys onto the tracks they could be hurt. Hence, the
accused was aware of the consequence of his actions and made a choice to save himself.
1~X
[52] Exhibits 5(A),(B) and (C) , being the still pictures of the TTC surveillance tape which
were taken within minutes of the offences, show the accused appearing to be of sound mind. In
one of the pictures he appears to be looking back, suggesting awareness that he had done
something wrong and was trying to get away. He waited until there was an oncoming train and
then gave at least 5 pushes to the victims, suggesting deliberate acts. His nmning from the scene
and his assaults on people chasing him show that he knew what he had done was wrong.
[53] Dr. Gojer agreed that a multi-disciplinary assessment at CAMH over a 45 day period was
the gold standard and the best venue within which to conduct an assessment.
[54 J The evidence supports that the accused was feigning: no reporting of auditory
hallucinations on any prior occasion on which the accused received medical attention; the
accused refusing to talk to Dr. Rootenberg about the acts he committed; the accused giving
contradictory answers about the reported auditory hallucinations; and the accused's readiness to
talk about his diiTiculties.
r55] Dr. Gojer was selective when he attempted to find consistency in the accused’s different
\’crsions of why he committed the offences and attempted to rationalize the inconsistent versions
by saying that the accused was a poor historian. The inconsistent versions cannot be rationalized
and the Crown does not rely on the accused’s various accounts of what occurred.
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[56] To members of the public, the accused appeared to be crazy because of what he had done.
People do not want to think someone normal could do something so awful. Under section 16(2),
the accused is presumed to be sane until the contrary is proved. Dr. Gojer started from the
premise that the acts committed demonstrated mentally m:1behaviour and did not consider that
the acts were committed intentionally or purposively. Dr. Gojer’s February 19, 2009 report was
prepared at the request of the defence and is not objective. The accused’s own words for the
most part have been interpreted by Dr. Gojer. He assumes that the perpetrator of the acts is
psychotic as opposed to a starting assumption that the person is sane.
[57] The accused’s statements while he sat on the rock that he went to the doctor and the
hospital and could not get medication were not irrational-he was announcing his problem and
gi Vll1g excuses. He did not say he heard voices or had hallucinations. His behaviour and
demeanor was not consistent with a psychotic episode. His crying and intense sobbing in the
police car and at the police station can be explained by his being very upset that he had been
arrested for attempt murder. He was able to answer all sorts of questions when he was paraded.
His comment about suicide has to be understood in the context of how unlikely a venue it was
for this to occur. The observation of EDP (“Emotionally Disturbed Person”) in Officer Brian’s
police notes has to be considered in the context of a seasoned police officer working in a division
where there are a lot of mental health issues and her evidence that he was not on the severe end ,1
of EDP. The accused’s refusal to answer questions about the offences at his police interview is
consistent with his evasiveness with Dr.Rootenberg and Dr. Wright and suggests he is aware of
his dire legal predicament.
[58] The Crown called as witnesses Dr. Wright whose psychological testing and Dr. Eid
whose background as the accused’s family doctor were relied upon by Dr. Rootenberg in his
assessment. This reduces the frailty of relying on second hand evidence. In contrast, the
psychologist utilized by Dr. Gojer was not called as a witness and Dr. Gojer relied in large part
upon Dr. Rootenberg’s assessment and upon Ms. Prado. Ms. Prado knew nothing of the
accused’s suicide attempt or subsequent assessment by Dr. Mackenzie. This shows that the
accused can feign normalcy.
[59] Dr. Gojer concluded that the fact Dr. Eid prescribed the anti-psychotic drug Seroquel for
the accused was evidence that the accused was psychotic. Dr. Eid’s evidence, however, was that
he prescribed Seroquel to treat the accused’s depression. The accused did not want to take
ErTexor because of the side effect of impotence and did not ,want to take Cialis because it was too
expenSIve.
[60] Dr. Gojer challenged Dr. Rootenberg’s assessment on a number of grounds:
1) Anti-psychotic medication was prescribed for the accused which potentially masked
symptoms. However, the CAMH assessment had 2 fairly fulsome interviews with the
accused and opportunity to observe him prior to the commencement of the
Olanzapane and the accused was inconsistent in his reporting of hallucinations prior
to starting on Olanzapane.
13
2) Dr. Rootenberg should not have relied upon Dr. Wright’s opinion that the accused
was malingering. However, very little weight should be accorded to Dr. Kalia’s
psychological testing relied upon by Dr. Gojer based on Dr. Wright’s evidence that
the accused could have learned from the prior testing and his disagreement with Dr.
Kalia’s interpretation of one of his tests which overemphasized psychotic symptoms.
3) Dr. Rootenberg did not have all the records prior to rendering his opinion. However,
he has now viewed all the videos, audios, records and read the transcripts of the
witnesses’ evidence from the preliminary inquiry and his opinion remains the same.
Based on Dr. Rootenberg’s evidence, very little weight should be accorded to the
evidence of the civilians.
[61] The intention to murder does not require planning. While his acts may have been
impulsive, he intended to kill and the elements of attem1?,t murder have been made out. The
accused should be convicted of attempt murder. .t
Law
The Legal Question
[62] In R. v. Dammen (1994) 2 S.C.R.507, Justice McLaughlin cites the following passage
from “Insanity as a Defence” (1965-66), 8 Crim.L.Q.240 by G.Arthur Martin, Q.C.(later Martin
lA.) at p.246:
29 In considering whether an accused was, by reason of insanity, incapable of knowing the nature and
quality of the act committed by him, or that it was wrong, the legally relevant time is the time
when the act was committed. The accused may by a process of reconstruction after committing
some harmful act realize that he has committed the act and know that it was wrong, That is not
inconsistent with an inability to appreciate the nature and quality of the act or to know that it was
wrong at the moment of committing it.
,t
A person may have adequate intelligence to know that the commission of a certain act, e.g.
murder, is wrong but at the time of the commission of the act in question he may be so obsessed
with delusions or subject to impulses which are the product of insanity that he is incapable of
bringing his mind to bear on what he is doing and the considerations which to normal people
would make the act right or wrong. In such a situation the accused would be exempt from
criminal liability.
Justice McLaughlin states:
21 A review of the history of our insanity provisions and the cases indicates that the inquiry focuses
not on general capacity to know right from wrong, but rather on the ability to know that a
particular act was wrong in the circumstances. The accused must possess the intellectual ability to
know right from wrong in an abstract sense. But he or she must also possess the ability to apply
that knowledge in a rational way to the alleged criminal acts.
16 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 make a rational choice about whether to do it or not. The
inability to make a rational choice may result from a variety of mental disfunctions; as the
following passages indicate these include at a minlh1um the states to which the psychiatrists
14
testified in this case-delusions which make the accused perceive an act which is wrong as right
or justifiable, and a disordered condition of the mind which deprives the accused of the ability to
rationally evaluate what he is doing.
[63]An accused will be abler to invoke the insanity defence successfully under Section 16(2) if
he can establish that he was incapable of knowing that the act in question was morally wrong in
the particular circumstances. (See R. v. Chaulk [1990] 3 S.C.R.1330, per Cory J. at paras.l11-
114).
I.t
Analvsis
[64J For reasons that I am about to elaborate, I have concluded that the accused has satisfied
me on the balance of probabilities that he is not criminally responsible. My reasons for reaching
this conclusion are these:
[65] Dr. Gojer provided what I found to be a compelling explanation for the accused’s
conduct. The commission of a crime with no motive on strangers in a public place is bizarre
conduct. He described a series of events with the accused cascading more and more out of
control, culminating in a psychotic episode during which the offences occurred. He testified to
the accused’s suffering from a lengthy history of depression, the symptoms of which resumed
and were exacerbated when he discontinued taking his anti-depressant medication, Effexor,
seven or eight months prior to the events on February 13, 2009. On the other hand, Dr.
Rootenberg was unable to provide any cogent explanation for the accused’s conduct.
[66J Both Dr. Gojer and Dr. Rootenberg agreed that the 'accused met the criteria for suffering
a major depressive episode at the time of the offences. In the months leading up to February 13,
2009, family members and his girlfriend observed his condition to deteriorate and his depression
to worsen. In the month preceding the February 13, 2009 offences, he became obsessive and
paranoid about his girlfriend cheating on him as noted by his family doctor. There was no basis
for the accllsed' s belief that Ms. Prado was cheating on him. He was unable to sleep, had panic
attacks and lost weight. His girlfriend testified that he was shaking all over on January 5, 2009
and was taken by ambulance to Humber Hospital for what was diagnosed as a panic attack. The
following day, he lay down on the subway tracks. When he was taken to the emergency
department, he reported that he felt he was going to die, his mind was going crazy and he was
unusually tight in his chest. When he was assessed at the Urgent Care Clinic at the Toronto
Western Hospital, he told hospital authorities that he felt he was going to die and did not care,
that he had knives in his chest, that this was the strongest panic attack he had had and he felt that
his brain was not stopping. In reaching his conclusions, Dr. Gojer was alive to the presumption
of sanity in Section 16. I am satisfied that he approached his assessment with an open mind, and
mindful of the presumption of sanity. He did not begin with a presumption of insanity in
explaining the accused's conduct. ',1
[67] Dr. Gojer and Dr. Blumberger, who saw the accused closest in time after the date of the
offences (6 days and 7 days after respectively), both formulated preliminary diagnoses of a
severe worsening of depression and psychosis associated with it. Dr, Rootenberg acknowledged
that Dr. Gojer’s observations of the accused on February 19,2009 were accurately reported.
15
[68J I have concluded, with respect, that Dr. Rootenberg's approach to analyzing the accused
was f1awed. The accused was treated with anti-psychotic medication 6 days after he was
admitted to CAMH. The accused was assessed while under the ameliorating effects of this
medication, the dosage of which was doubled 4 days later. Dr. Rootenberg acknowledged on
cross-examination that Olanzapane had the potential to alleviate psychotic symptoms. In fact,
after the accused began to receive anti-psychotic medication, he ceased to maintain that he was
hearing voices or auditory commands and his bizarre behaviour ended. I accept as valid the
criticism of Dr. Gojer that the assessment should have been carried out before he was medicated
if one were seeking to understand his condition at the time of the commission of the events.
[69] I also find it inconsistent to assert that the accused was not experiencing a psychotic
episode when the decision was made to treat him with anti-psychotic medication. Dr.
Rootenberg testified that he would not prescribe anti-psychotic medication unless there were
overt psychotic symptoms. On 3 of the 7 occasions Dr. Rootenberg saw the accused, he
prescribed anti-psychotic medication. On February 26, 2009, he saw the accused who talked of
seeing dead people and of the guards and inmates wanting to rape and bum him.
Notwithstanding that he prescribed him 5 mg. of Olanzapine daily at this time, Dr. Rootenberg in
his testimony dismissed this as evidence of paranoia or delusions, stating that guards commonly ,1
threaten inmates. Although in general there may be cases where there are threats of violence by
guards against prisoners, it is much more likely on the facts of this case, in the absence of any
evidence of any actual threats, and considering the accused’s behaviour while in the Don Jail,
that these were paranoid delusions. Four days after starting the accused on anti-psychotic
medication and just before Dr. Rootenberg left for a 2 week period required by other
commitments, he upgraded the dosage to 10 mg. daily. On March 19, 2009, there was a Code
White at CAMH (used where there are staff or patient safety issues) as a result of the accused
becoming very agitated, climbing up and banging his head on the windowsill and stating that he
wanted to die. At that time, Dr. Rootenberg issued instructions for the accused to receive
additional anti-psychotic medication of 5 mg. of Olanzapine every 4 hours on an as needed basis.
On March 31, 2009 Dr. Rootenberg completed his assessment and concluded that the accused
was malingering and should continue to receive antidepressant and anxiety reducing medication
but not anti-psychotic medication. Yet, on his cross-examination, it was disclosed that when the
accused was discharged from CAMH around the same time, Dr. Rootenberg recommended that
the accused continue to receive 10 mg. of Olanzapine daily. The accused did in fact continue to
receive 10 mg. of Olanzapine in the Don Jail until the daily”posage was increased to 12.5 mg. on
July 5, 2009 and to 15 mg. on August 13, 2009. If the view was not seriously held that he had
psychotic symptoms, it seems to me that he would not have been treated with anti-psychotic
medication and he would not have been prescribed an increase in the dosage.
[70] Dr. Rootenbcrg accepted as a diagnostic possibility that the accused was suffering from a
Vfajor Depressive Illness with psychotic features and then rejected it as less likely because of
what he concluded was a clear pattern of malingering demonstrated by the accused during his
~lssessment. FIe testified that he only came to the diagnosis of malingering after Dr. Wright did
the psychological testing later in March, 2009. By the time Dr. Wright met with the accused for
the tirst time, he had been on anti-psychotic medication for approximately 2 weeks.
16
[71) Dr. Rottenberg's reasons for concluding that the accused was malingering can be
summarized as:
1. Upon being admitted to CAMH, the accused reported having hallucinations or hearing
voices telling him to kill himself or kill someone else. He had not reported this
previously to anyone, including his family doctor or Toronto Western Hospital. He was
evasive and gave contradictory answers about the reported auditory hallucinations.
2. The accused was found to be task avoidant in completing the psychological testing.
3. The accused was unable to explain why he ran from the subway platform after pushing
the victims onto the tracks which was inconsistent with responding to hallucinatory
~1 voices.
[72] I found Dr. Gojer’s evidence on the issue of the accused’s malingering and his conclusion
to the contrary to be compelling. He posited reasonable alternate explanations for what Dr.
Rootenberg concluded was malingering by the accused. For example, Dr. Gojer testified that by
the time Dr. Wright performed the psychological testing, the accused had been started for the
first time on Olanzapine, an antipsychotic drug which tends to cause sleepiness and lethargy and
he was re-started on Effexor which he had been off for many months. These facts and the fact
that he was suffering from a major depressive illness could also explain why he did not fully
engage in or complete the psychological testing. Dr. Gojer testified that the fact that the accused
first said he had hallucinations and later described it as thoughts rather than voices can be
attributed to a number of factors other than malingering: his lack of sophistication, lack of
education, language difficulty, inability to describe what was happening to him and to the
masking of symptoms by the drugs he was prescribed during the CAMH assessment. He
testified that it would have been difficult for the accused to feign his behaviour as described by
the various observers at the time the acts were committed. ,1
[73] I find the conclusion that the accused was malingering to defy common sense. The
various witnesses to the offences described the accused as having a blank expression on his face,
eyes glazed, having something wrong with him mentally, mumbling, crying, looking blankly
through the person, showing no emotion, uncoordinated and very unnatural in his movements.
Detective Brian made a notation in her notebook of “EDP”, short for Emotionally Disturbed
Person. Although she attempted to minimize this in her testimony by saying that the accused
was at the low end of the scale, this was not reflected in her notes. The booking video and
interview video show the accused with eyes downcast. Upon admission to the Don Jail
following the offences, he was put on suicide watch. The evidence of those who observed the
accused during and after the attack is relevant to the assessment of his mental state. (R. v. Wade
(1994) 0.1.543 (OnLC.A.) at para.79). I find the witnesses’ impressions are reliable and the
T.T.C. still pictures are not inconsistent with the witnesses’ evidence. It would be mere
speculation to interpret the still pictures in the fashion contended for by the Crown. Dr.
Rootenberg did not take into account the description of the accused’s appearance at the time of
the offences which supports the conclusion of Dr. Gojer. ,Dr. Rootenberg did not factor in the
n.:actions and impressions of the witnesses and the police. These are relevant not only to whether
17
the Section 16 criteria are satisfied but also to the issue of the accused’s feigning. The failure to
consider this evidence militates against the reliability of Dr. Rootenberg’s conclusion.
[74J One might have expected the accused if he was malingering to continue to say he heard
voices. He did not. After initially saying that he heard command voices which told him to
commit the offences, he later denied that he heard voices then or later. When he was first
interviewed by Dr. Gojer, he denied any history of ment&l illness although he had a lengthy
history of depression. When he was interviewed by Dr. Blumberger, he denied any family
history of psychiatric illnesses although he had several family members who suffered from
mental illness including a sister who was institutionalized for schizophrenia and despite using
Olanzapane, showed "auditive delusions and primary delirium". When he was tested by Dr.
Wright and asked the question: "People can put thoughts in my mind against my will", he
answered "False".
[75] I tlnd that the accused’s behaviour leading up to, during and shortly after the February
13, 2009 incident is consistent with the accused suffering from a major depressive illness with a
psychotic episode and is inconsistent with and not explained by a conclusion that the accused
was malingering. Dr. Rootenberg’s conclusion does not explain or account for the accused’s
lengthy history of depression, his family history of schizophrenia and psychosis with its genetic
predisposition, the well-known side-effects of going off anti-depressant medication, the change
in his behaviour described by his significant other, Ms. Prado, his paranoia about her infidelity,
his increased attendances to seek medical help in January and February, 2009, his laying down
on the subway tracks in January, 2009 and his statement to the medical authorities at Toronto
Western Hospital where he was subsequently taken that he “had knives in his chest” and he “felt
desperate for help. My brain is not stopping.”
[76] Dr. Rootenberg chose to infer that the accused’s leaving the scene as awareness of guilt
i.e. he knew what he was doing was morally wrong. However, the other inference that arises is
that the crowd was screaming and pointing at him and he ran away in response to the crowd’s
behaviour which is consistent with witnesses describing him as walking at a normal pace down
the street and sitting on the rock outside the PizzaHut, waiting for the police to arrive. This latter
inference is a rational one. At the time Dr. Rootenberg completed his assessment, he had no
information with respect to the reaction of the crowd or the people screaming. The failure to
consider these facts casts doubt on his conclusion. Additionally, in preparing his assessment, Dr.
Rootenberg did not have relevant and material evidence of the accused’s behaviour in the Don
Jail such as his being uncontrollable and dancing nude on his bed and toilet. Those notes were
available to the Crown and were highly relevant to the accused’s behaviour shortly after the
offence occurred. Dr. Rootenberg chose to render his opinion prior to receiving and reviewing
the notes. I do not give any weight to his testimony that this evidence would not have changed
his opinion when he did not consider it at the appropriate time.
[77] In my respectful opinion, Dr. Eid was shocked by what the accused did and was anxious
to detlect any criticism of his role as his physician. Hence his evidence with respect to
recommending Cialis and offering many times to refer the accused to a psychiatrist. I do not
bel icve this evidence. It is not cOIToborated by his notes which should have reflected a
prescription or a referral. Moreover, it does not seem likely that Cialis would be prescribed to a
18
patient who cannot afford Effexor. It is to be regretted that after the incident in January, 2009
when the accused lay on the subway tracks and the assessment at Toronto Western Hospital, that
he was not referred to a psychiatrist for ongoing monitoring and treatment. Nevertheless, Dr. Eid
did his best. He is not a psychiatrist and as I have noted he was very busy. He did not fully
understand the accused’s condition which was complicated and confusing because of its
multifaceted aspect: adjustment disorder; depression; anger; paranoia; hallucinations, psychosis,
dc. He had no reason to anticipate that the accused would commit these acts and what happened
is not his fault. Dr. Eid’s evidence does not detract from the conclusions of Dr. Gojer.
[78] I formed the impression in listening to Dr. Wright’s evidence that he approached his task
with a bias, namely that he believed that most people who presented with major depression with
a psychotic episode were feigning. His rejection of the standard test for determining malingering
was based on his view that too many malingerers escape. This reasoning is circular. Section 16
issues are extremely important both to the accused and the public. A fact specific inquiry is
necessary. All relevant facts must be considered. In this case, Dr. Wright did not consider all
relevant facts. His refusal to recognize the impact of the medication and of the accused’s illness
on his ability to perform the tests seemed to me to flow frdin his bias that persons with a major
depressive illness and a psychotic episode are malingering. Those facts which militate against
his preconceived view are ignored. For example, he concluded that the CAMH staff had
overreacted to the accused’s behaviour in calling a Code White. He refused to acknowledge that
anti-psychotic medication which was being administered to the accused is designed to relieve the
symptoms of psychosis, an uncontrovertible fact. While conceding that bizarre behaviour
observed during the assessment period would have been important and could have affected his
opinion of malingering, he did not take into account the accused’s bizarre behaviour at the Don
Jail because he was completely unaware of it.
[79] Dr. Wright also fastened on the accused’s conclusion that the anti-psychotic medication,
Seroquel, had caused the voices. Dr. Wright’s opinion was that because Seroquel did not cause
the voices, therefore the accused is malingering. This reasoning is flawed. The fact that the
accused drew an inaccurate connection about the cause of the voices does not mean that these
voices did not exist. It is not uncommon for people to search to explain phenomena such as their
medical conditions. For the accused to conclude that the,yoices were caused by the Seroquel
because the voices occurred after he took it is typical human reasoning which is often mistaken.
j’\ conclusion 0 f malingering from a mistaken self-diagnosis of causation is plainly wrong. All in
all, I was left with the impression that Dr. Wright did not have an open mind and that his
conclusions about malingering were not reliable.
Conclusion
[801 I find that at the time he committed these acts, the accused's mind was devoid of any
thoughts other than pushing the victims or killing himself. His thought processes were impacted
at that time to such an extent that he was unable to weigh the pros and cons of his actions and
was incapable of appreciating that what he was doing was morally wrong.
181] In the result, although the accused committed the acts alleged against him, he has
satisfied me on a balance of probabilities that he was at the time suffering from a mental disorder
19
so as to be exempt from criminal responsibility on all charges pursuant to section 16(1) of the
Criminal Code.
Released: October 25,2010
20
CITATION: R. v. De Oliveira, 2010 ONSC 5847
COURT FILE NO.: 0491
DATE: 2010110/25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
-and-
ADENIR De OLIVEIRA
Accused
Reasons for Judgment of Backhouse, J. delivered October 25,2010
Released: October 25,2010