IN THE SUPREME COURT OF BRITISH COLUMBIA
|
Citation: |
R. v. Donnelly, |
|
|
2008 BCSC 137 |
Date: 20080123
Docket: 26875-2
Registry: Terrace
Regina
v.
Blair Evan Donnelly
Before: The Honourable Mr. Justice Groberman
Oral Reasons for Judgment
January 23, 2008
| Counsel for Crown: |
M. Fulmer |
|
| Counsel for Defence: |
P. Pakenham |
|
|
Date and Place of Trial: |
January 21 and 22, 2008 |
|
[1] THE COURT: Blair Evan Donnelly is charged with one count of second degree murder in connection with the death of his sixteen-year-old daughter, Stephanie Joy Donnelly, on November 23, 2006.
[2] Both the Crown and defence agree that Mr. Donnelly killed his daughter and intended to do so. They also agree that he should be found not criminally responsible for the crime by reason of mental disorder pursuant to s. 16 of the Criminal Code. I agree with those submissions, and these are my reasons for reaching that verdict.
[3] The facts of this case are tragic and disturbing. I apologize to members of the family to whom this must be very upsetting, but I do, in order to give these reasons for judgment, have to once again go through some of the factual background.
[4] The accused lived with his wife and the victim in Kitimat, British Columbia, where they had lived for about 10 years. An older daughter had left home to go to the University of Alberta beginning in September 2006.
[5] The fall of 2006 was a stressful time for Mr. Donnelly. It appears that he had been working in a supervisory role on a special project for his employer. He put a great deal of effort into the project and felt unappreciated when it ended, and he was not given a promotion that he had expected. There were also other stresses in his life. I need not detail any of them. Neither these other stresses nor the disappointment at work either individually or in combination amounted to anything more than ordinary burdens that individuals face from time to time in their lives.
[6] It is not surprising that in a time of disappointment Mr. Donnelly, who was a devoutly religious man, turned his attention to religious pursuits and to Christian fellowship. He quit drinking as a sign of his commitment to faith, although I note that the evidence does not suggest he was, in any event, a heavy drinker or an abuser of alcohol. He devoted more time to reading religious material, listening to religious music, and engaging in prayer.
[7] Aside from some difficulty sleeping, he did not notice anything out of the ordinary during that time period. There is some indication in the evidence, however, that he was experiencing difficulty concentrating at work in the weeks prior to the incident and that he had lost a considerable amount of weight in a short time frame.
[8] On November 23, 2006, Mr. Donnelly woke up early, prayed, and read a sermon that he had requested his pastor to email him. From that point on, he acted strangely. He returned to his bedroom and woke his wife up in order to have sex with her. This was not a usual occurrence for the couple, especially at that hour of the day, and it was particularly curious as he was, on that occasion, impotent, which was also an unusual occurrence.
[9] Sometime that morning, and it is not clear whether it was when he first read the sermon or sometime later on rereading it, Mr. Donnelly formed the idea that God wanted him to murder his wife. This idea, it appears, was based on what Mr. Donnelly saw as hidden meaning in the sermon.
[10] At about 7:15 a.m., he sat down to breakfast with his wife and daughter, but he did not eat and said he was not hungry. Mrs. Donnelly describes his demeanour at the time as weird. Mr. Donnelly then left for work but en route considered that he could not go to work. He was distressed by the idea that God wanted him to kill his wife. Evidently he had some doubts, and he decided to purchase a scratch-and-win lottery ticket at a gas station. He decided that if the ticket was a winner, it would serve as a sign from God that he really was to kill his wife.
[11] After purchasing the ticket, however, Mr. Donnelly was ashamed of himself for thinking that way, and considered that he was effectively putting a price on his wife's head and attributing a trivial and humiliating sign to God. He did not, in the event, scratch the ticket.
[12] He returned home, and Mrs. Donnelly reports that he appeared agitated. He went to the kitchen, and unbeknownst to his wife, he took a knife and concealed it inside his jacket. He then went into the bedroom and then later began walking around the house with his hands clasped inside his jacket, holding the knife, unbeknownst to his wife.
[13] Mrs. Donnelly attempted to engage him in conversation to find out what was bothering him, but he did not answer. She asked him to remove his hands from his jacket and he refused. Eventually she insisted that he sit down, and he did, and he found himself unable to move. It appears that Mrs. Donnelly may have feared for her safety and may have told Mr. Donnelly that she was either going to call the police or the pastor. Ultimately she did contact the pastor, who attended at the home. This had not occurred prior to the day in question.
[14] It appears that by the time the pastor attended, Mr. Donnelly was significantly less agitated. Indeed, the pastor did not notice anything untoward in his behaviour and Mrs. Donnelly herself was somewhat embarrassed and wondered whether she had overreacted by summoning the pastor. Neither Mrs. Donnelly nor the pastor, of course, knew that Mr. Donnelly was having homicidal thoughts at the time.
[15] In a private moment with Mrs. Donnelly, the pastor asked her why she had called him, and she explained that she was concerned that Mr. Donnelly was acting in a manner reminiscent of events 10 years earlier when he had been admitted to a psychiatric hospital after having religious delusions. This was the first time that the pastor knew of that event.
[16] It appears, also, that Mr. Donnelly told the pastor at some point that he felt similar to the way he had 10 years previously when things had "flipped" and “what was wrong seemed right and what was right seemed wrong.”
[17] In any event, the pastor stayed for about two hours and was satisfied when he left that Mr. Donnelly was not acting out of the ordinary. Mrs. Donnelly also felt that all was well but was somewhat concerned that Mr. Donnelly should not be alone that evening while she was at work. Because she had to work until 9 o'clock p.m., she suggested that he go over to the residence of some friends, and he agreed. She left for work about 1 p.m.
[18] During the afternoon Mr. Donnelly dropped by his workplace to drop off some material, and he went to pick up skates for Stephanie. It appears that she was disappointed as the skates that he picked up were not the right ones, but nothing much turns on that.
[19] At about 4 o'clock p.m., Mr. Donnelly drove Stephanie to a hair appointment. He then returned home and a co-worker dropped by at about 4:30 p.m. to pick up a cell phone and pager. The co-worker was at the Donnelly residence for about 20 minutes. It appears that Mr. Donnelly acted bizarrely during his visit. The two were not close acquaintances and did not share religious beliefs. Nonetheless, Mr. Donnelly talked about religion throughout the visit and is reported by the co-worker to have had kind of a glazed look in his eyes.
[20] Mr. Donnelly himself described the visit as “mystical” and “surreal.” It is apparent that he considered the spiritual conversation with this visitor to be of great significance.
[21] After the visitor left, Mr. Donnelly became worried about his daughter's safety and fixated on the idea that some harm was going to come to her. There was no reason for either the fear or the fixation. He attributed special meaning to a number of unconnected and objectively unimportant events and concluded that Stephanie's life was in danger.
[22] He contacted Mrs. Donnelly at work, and she contacted the hair salon and determined that Stephanie's appointment would last for another hour. Mr. Donnelly was somewhat calmed by that news and went over to the friends' home for the evening as planned.
[23] It appears that the friends found Mr. Donnelly's demeanour that evening to be somewhat melancholy, distracted, and distant, but not to such an extent as to cause them worry.
[24] For his part, it appears that Mr. Donnelly was reading messages into virtually every occurrence. He interpreted such signs as the dog playing with a skunk toy and his friend choking on tea as being evidence of God's disappointment in him for having failed to kill his wife. He felt that God was upset with him for having lukewarm faith. Eventually he left for home, feeling what he described as "heavy, heavy heaviness."
[25] It appears that Mr. Donnelly arrived home sometime after 9:15 p.m. By that time his daughter Stephanie was back home. When he got home, he noticed that the sermon was still open and on his computer screen. He did not remember leaving it open and saw this as an additional sign from God.
[26] Putting together all of the hidden messages he felt he was receiving, it became clear in Mr. Donnelly's mind that God wanted him to kill his daughter Stephanie and that if he did not do so he would have to kill his wife, Stephanie, and his older daughter at Christmastime.
[27] Mr. Donnelly went to the kitchen and grabbed the same knife he had carried earlier. He stabbed Stephanie several times, first in the chest and then in the neck. The violence and brutality is apparent. Indeed, he cut right through his daughter's throat from the front, all the way down to the spine and into the bone.
[28] Aside from a scratch on Mr. Donnelly's face and a broken fingernail on Stephanie's body, there is no indication of any struggle. Apart from pooling blood, the room was exceptionally neat and all furniture remained in place.
[29] It appears that the initial wounds were three stab wounds to the chest which penetrated the heart and left lung. The huge wound to the neck severed the carotid arteries, internal jugular vein, larynx, and esophagus. While the lack of haemorrhaging around the neck wound suggests that the heart was pumping only weakly, if at all, when it occurred, it is also obvious that the neck wound was simply not survivable.
[30] Mr. Donnelly left the residence. It appears that Mrs. Donnelly arrived home minutes later to the devastating scene of the homicide.
[31] Mr. Donnelly went to the church and prayed. He appears to have fairly quickly realized the horror of what he had done. Almost immediately, he began to recognize that his understanding that God wanted him to murder his daughter was erroneous.
[32] Mr. Donnelly displayed confused and irrational behaviour over the next few hours and in the days following his arrest.
[33] On the agreed facts, it is apparent both that Mr. Donnelly killed Stephanie Donnelly and that he intended to do so. The only question is whether or not he should be found not criminally responsible for murder by reason of mental disorder.
[34] Section 16 of the Criminal Code places the onus on the person seeking to prove a lack of criminal responsibility to show that the accused suffered, at the time of the crime, from a mental disorder that rendered him incapable of appreciating the nature and quality of the act or knowing that it was wrong. Section 16(2) of the Criminal Code provides a presumption to the effect that a person does not suffer from a mental disorder of that nature unless the contrary is proven on the balance of probabilities.
[35] The evidence in this case is primarily by agreed statement of facts, but we have also had the benefit of the testimony of two psychiatrists: the psychiatrist who was in charge of Mr. Donnelly's treatment since December of 2006, Dr. Leeanne Meldrum, and another well-known and experienced forensic psychiatrist, Dr. Shabehram Lohrasbe.
[36] The first issue is whether the accused suffered from a mental disorder or disease of the mind, as the Criminal Code defines it. That issue was canvassed by the Supreme Court of Canada in the case of Cooper v. The Queen (1980), 51 C.C.C. (2d) 129 at 144, where the court summarized the issue as follows:
In summary, one might say that in a legal sense "disease of the mind" embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of insanity [as it was then known] the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.
[37] Both psychiatrists are in agreement that Mr. Donnelly suffers from bipolar mood disorder, or bipolar affective disorder, and both consider that he was in a hypomanic state at the time of the homicide. They describe Mr. Donnelly's bizarre behaviour and his finding signs in routine occurrences as being characteristic of a psychotic episode in which Mr. Donnelly was not grounded in reality.
[38] In my view, their evidence is credible. There is no doubt that Mr. Donnelly was suffering from a mental disorder, or disease of the mind, as it is classically termed, at the time that the crime was committed. There is no evidence to the contrary, and I am satisfied that at the time the crime was committed Mr. Donnelly suffered from a mental disorder.
[39] The next question is whether the other part of the test is met, that is, whether that mental disorder rendered him incapable of appreciating the nature and quality of the acts or of appreciating that they were wrong.
[40] In my view, Mr. Donnelly clearly did appreciate the nature and quality of his acts on the night in question. He recognized that he was stabbing his daughter and that the wounds he was inflicting would kill her. Indeed, that was his purpose. He also clearly understood that Stephanie's death would be permanent.
[41] While Dr. Lohrasbe, in his evidence, postulated that in some very broad sense Mr. Donnelly did not appreciate the nature and quality of his acts, I have difficulty, I must confess, even understanding that proposition. When asked to explain the notion, Dr. Lohrasbe suggested merely that Mr. Donnelly might not have been concentrating or focussing on his acts so much as on what he conceived to be God's will.
[42] The law does not interpret the phrase nature and quality of the act so broadly. It does not require that an accused be devotedly concentrating on his acts so long as he understands and appreciates the consequences of what he is doing. I find that Mr. Donnelly fully appreciated the nature and quality of his acts when he used the knife to stab and slice Stephanie Donnelly's chest and neck.
[43] The other part of the test, though, is whether he appreciated at the time of the offence that what he was doing was wrong. The Supreme Court of Canada considered the definition of that part of the test in R. v. Chaulk, [1990] 3 S.C.R. 1303, 62 C.C.C. (3d) 193. At C.C.C. 231, Mr. Justice Lamer, for the majority, said as follows:
In applying s. 16(2) to a particular set of facts, it may be established that the accused who attempts to invoke the insanity defence is capable of knowing that he ought not do the act because he knows, first, that the act is contrary to the formal law or, secondly, that the act breaches the standard of moral conduct that society expects of its members. In this regard, subject to the qualification discussed below, I approve of the interpretation of s. 16(2) put forward by Professor Alan Mewett in "Section 16 and 'Wrong'" (1976), 18 Crim. L.Q. 413, at pp. 415-16:
The question that ought to be asked, it is submitted, is whether the accused, because of a disease of the mind (first hurdle) was rendered incapable (second hurdle) of knowing that this act was something that he ought not to do (third hurdle). If he was capable of knowing that the act was contrary to law and that he ought not to do an act contrary to law, then the defence should not apply. If he was incapable of knowing that it was contrary to law, but capable of knowing that it was an act condemned by people generally, then again the defence should not apply. But if he was incapable of knowing that the act was contrary to law and incapable of knowing that it was an act condemned by people generally, then the defence should apply. This only leaves a situation where he was capable of knowing that the act was contrary to law but incapable both of knowing that to act contrary to law was condemned by people generally and of knowing that this particular act was condemned by people generally. I would have thought that such an accused (who must be the rarest of all individuals) is precisely one who ought to be found not guilty by reason of insanity.
The qualification that I would make of Professor Mewett's comments is that the insanity defence should not be made unavailable simply on the basis that an accused knows that a particular act is contrary to law and that he knows, generally, that he should not commit an act that is a crime. It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by reason of a disease of the mind, believes that it would be "right" according to the ordinary morals of his society to commit the crime in a particular context. In this situation, the accused would be entitled to be acquitted by reason of insanity.
It is that latter situation, in my view, that applies in this case.
[44] The evidence satisfies me that Mr. Donnelly, at the time of the offence, did not know that it was wrong. To the contrary, he considered himself to be fulfilling God's will in a laudable manner. He was, to quote him, "being a hero for God." In the circumstances, he did not commit the act in the knowledge that it would be seen by members of the community as morally wrong.
[45] I wish to emphasize in reaching this conclusion that I have fully considered the possibility that Mr. Donnelly might be faking his symptoms or malingering, and I am satisfied that the psychiatrists who have testified were also very much alive to that possibility. They both expressed great confidence in their assessments. A number of factors satisfy me that they were justified in doing so. Among those factors are:
(1) Mr. Donnelly has a verified previous history of mental illness consistent with bipolar affective or bipolar mood disorder.
(2) There is independent corroboration of Mr. Donnelly's strange behaviour leading up to the events.
(3) There is no suggestion of any motive for murder. Mr. Donnelly was not an abusive parent nor was he prone to have intense outbursts of anger. There was no suggestion that he was angry with Stephanie on the night in question.
(4) Mr. Donnelly has no history of violence or of crime against anyone.
(5) The delusions involving the will of God mesh with the strong religious beliefs that Mr. Donnelly had. Thus the manifestation of the psychosis here is in keeping with Mr. Donnelly's genuine real world beliefs.
(6) Psychological testing has shown it to be very unlikely that Mr. Donnelly is malingering. Indeed, he has only reluctantly begun to raise the proposition that he might suffer from a mental disorder.
[46] In light of the careful and thorough psychiatric assessments, the confidence of the expert witnesses in their views, and the complete absence of evidence that the defence of mental disorder has been concocted or exaggerated, I fully accept that Mr. Donnelly was, at the time of Stephanie Donnelly's death, not able by reason of mental disorder to appreciate that his actions were wrong. Accordingly, I find Mr. Donnelly to be not criminally responsible for the offence charged on account of mental disorder.
[47] Both Crown and defence have asked that I not hold a disposition hearing under s. 672.45 of the Criminal Code, and I will not do so. Accordingly, the materials from this trial will, in accordance with s. 672.45(1.1), be sent to the Review Board for a disposition hearing.
[48] In terms of detention pending disposition, it seems to me that the status quo should continue pursuant to s. 672.46; that is, Mr. Donnelly will continue to be in detention, that detention being at the Forensic Psychiatric Hospital.
[49] Mr. Donnelly, the B.C. Review Board will hold a disposition hearing as required by s. 672.47 of the Criminal Code as soon as practicable and within 45 days of today's date. The Criminal Code has several provisions that govern the procedure and evidence at that hearing, and s. 672.54 sets out the dispositions that the Board may make. These must always take into account the need to protect the public, your mental condition and needs, and the need for you to be ultimately reintegrated into society. The Board is required to impose the least onerous and restrictive disposition consistent with these considerations.
[50] I am not, of course, prejudging the disposition. The disposition is a task for the Review Board. However, I do think that it is appropriate that you realize that the most likely initial disposition order, given what we have heard from Dr. Meldrum, is continued detention in custody at the hospital.
[51] Counsel, I would like to thank you both for the efforts that you have made in making this matter as easy as it can be under very difficult circumstances.
[52] Are there any further submissions or issues with respect to the court's order?
{Counsel provide a draft Order}
[53] THE COURT: Yes, I will make the order in accordance with this draft then. I will order that Mr. Donnelly be remanded in custody to the Forensic Psychiatric Services hospital located at 70– the draft says “Colony Road”, but it is “Colony Farm Road”, I believe – Colony Farm Road in Port Coquitlam for a disposition hearing by the British Columbia Review Board. That hearing shall commence as soon as practicable and in any event no later than 45 days from the date of this order pursuant to s. 672.45(1.1).
[54] All right. I have endorsed the order. Is there anything further, Counsel?
MR. PAKENHAM: There is just one brief thing, My Lord. Mr. Donnelly has not been able to speak to his wife and family, which must be obvious, since this matter, and I spent fairly limited time with them. He has asked me to convey to his wife and family, and this may be the only forum in which that can be done, his sincere grief of what happened. He's told me repeatedly that he can't believe he did what he did. The depth of his emotion about what occurred is still resonating with him each and every day, and he wishes that he could undo everything that happened and which brought him here and made this whole tragic event ruin him, and first and foremost his family, and he says that but for this mental difficulty that he had and which he didn't realize the significance of, the last thing he would have wanted to do was to hurt anyone, let alone his wife and daughter or daughters. And I just wanted to state that on his behalf. He is, quite frankly, unable to state it himself or he would do so.
The Honourable Mr. Justice H. M. Groberman