Mental health NCRMD vs fitness for trial and Buzziak murder investigation info still secret
This week on Legally Speaking with Michael Mulligan:
All too often, people with serious mental illnesses end up in the criminal justice system when they are not afforded adequate and sustained medical treatment.
In a case discussed on the show, a man who had suffered from multiple mental health issues since he was eight years old was charged with assault with a weapon and aggravated assault after he attacked a relative and an elderly neighbour one day after he was released from jail.
The man suffered from a range of mental health issues, including schizoaffective disorder, bipolar disorder, neurological impairment, traumatic brain injury and the toxic effect of extensive and severe substance use.
For many years he had been convicted of various criminal offences. He was repeatedly incarcerated. He would receive some treatment, be released, re-offend, and go back to jail.
The man first began hearing voices at age 17. He believed that the devil Lucifer had stalked him. He had twice carved “666” into his arm as part of these beliefs and then scratched the numbers out with deeper cuts as he would subsequently become afraid that he could not go to heaven while bearing the marks. For years he believed that by drinking his urine, he could keep evil spirits away. He would also keep feces beneath his bed to trap evil spirits so that he could flush them away.
He attacked an elderly neighbour and his cousin the day after being released from jail because he believed Lucifer had told him they had sexually abused others. He believed that he was an angel working to protect victims of sexual assault.
The elderly neighbour suffered cigarette burns, facial bruising, a broken jaw, and several broken teeth.
The case is a tragic example of the inadequacy of long-term, secure mental health treatment facilities in British Columbia. The legislation to do this exists in the form of the Mental Health Act. What is not available are sufficient, secure, long-term treatment resources.
Putting someone like this man into jail does little to address his lifelong mental health needs and does not protect the public for any longer than each jail sentence.
In the case discussed, the man was initially unfit to stand trial. This means he couldn’t understand basic things, such as the nature of the proceeding.
After seven months of intensive mental health treatment, he was determined to be fit to stand trial.
Then, with the assistance of a lawyer, he admitted that he had committed the offences. The only issue for the judge was whether he should be found not criminally responsible as a result of a mental disorder (NCRMD).
An NCRMD finding can occur when someone is suffering from a mental disorder that prevented them from knowing what they did was wrong at the time.
The judge hearing the case, concluded that the man was NCRMD. As a result, he will remain in a secure mental health facility indefinitely unless he is no longer determined to be a danger.
Also, on the show, an application to unseal documents relating to the investigation of the murder of a Victoria realtor by the name of Lindsay Buziak in February of 2008 is discussed. The application was denied on the basis that the judge concluded the investigation was still active after 14 years and that permitting public access to the material could result in others being placed at serious risk of physical harm.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.
An automated transcript of the show:
Legally Speaking Nov 3, 2022
Adam Stirling [00:00:00] The time for Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:06] I’m doing great. Always good to be here.
Adam Stirling [00:00:08] Some interesting stories and relevant stories, too. Topics that we’ve been discussing on our agenda this week, including a person who’s mentally ill accused of assaulting two people just hours after being released from jail and what it takes to finally find one’s way into the mental health system. Set this up for us.
Michael T. Mulligan [00:00:27] You’re exactly right. And you just cannot be more timely. This is a decision which just came out, and it’s a decision dealing with the issue of whether this person was not criminally responsible for what he did as a result of a mental disorder. That’s the legal issue the court was wrestling with. But the judge points out right at the beginning of the judgement, this individual, judge says, “personifies the all too common and tragic case of individuals before criminal courts who are diagnosed with multiple mental health issues and attendant behavioural problems, but for whom adequate and sustained medical treatment is elusive”. And indeed, it was. And it’s a case which was sort of akin to the assaults on random strangers. It’s very close to what occurred here as a result of that elusive medical treatment. This was an individual who had mental health problems, originally diagnosed when he was eight years of age. They started with hyperactivity disorder, oppositional defiant disorder, adjustment disorder, conduct disorder, learning disorder. Then he was later in age 21, in 2013, diagnosed with schizophrenia, attention deficit disorder, poly substance dependence, traumatic brain injury. On and on it goes. Somebody with very serious challenges who was just never properly treated in a long-term fashion. And he’s somebody who, when you look at this background, it becomes, at least to my eye, an example of why it is so important that people who find themselves in this position, this is somebody who’s dealing with multiple mental health challenges, serious ones, and a connected drug dependency. And often those things go together, right?
Adam Stirling [00:02:18] Yes.
Michael T. Mulligan [00:02:18] You know, somebody who is suffering from, you know, brain injuries, a mental illness, and they wind up using drugs maybe as an escape for that from the challenges that they’re having.
Adam Stirling [00:02:28] Yes.
Michael T. Mulligan [00:02:29] And this case is also an example of how the criminal justice system is often not a solution to those challenges. This was somebody who I had a look, there’s an online system. He’s got a page and a half of criminal convictions through his adult life. And the particular case that this judge was dealing with involved this man, he had been convicted, the judgement doesn’t indicate, but it appears to be the breach conviction where he was sentenced to 15 weeks in jail.
Adam Stirling [00:03:05] hmm.
Michael T. Mulligan [00:03:05] He served the entirety of his custodial sentence before being released. But as we’ve talked about before, when you put a person with serious mental illness and drug addiction into jail, in this case, for 15 weeks, what you get out is a mentally ill person with a drug addiction.
Adam Stirling [00:03:21] Yes.
Michael T. Mulligan [00:03:21] And so he came and the very next day he wound up assaulting his cousin and an elderly neighbour with whom he had no previous difficulties. It appears to have been clearly a function of his mental health challenges. And this will give you some idea of those.
Adam Stirling [00:03:46] Yes.
Michael T. Mulligan [00:03:47] The accused first began hearing voices and visions of bad spirits as early as age 17 and believes that the devil Lucifer stalked him. he twice carved 666 into his arms as part of these beliefs, later scratching him out with deeper cuts, fearing he would not go to heaven if he had more of those marks, he believed that drinking his own urine could keep evil spirits away. By keeping feces under his bed, he could trap the evil spirits within the feces of and carefully flush them away.
Adam Stirling [00:04:15] Oh Dear.
Michael T. Mulligan [00:04:17] And so he believed that these voices were telling him that the neighbour was involved with evil spirits and sexually abusing children. And so, without any that’s the rationale for an assault which resulted in cigarette burns, facial bruising, broken jaw, and broken teeth. And so, the fellow then goes back into the criminal justice system. And at the start of that process, he was found to be unfit to stand trial, which was a concept, that will be relevant to the next case that we’ll talk about. And that idea is that there’s a basic level of mental fitness that a person has to have before the justice system can even engage with them like they need to understand things like that’s the judge, right?
Adam Stirling [00:05:16] Yeah.
Michael T. Mulligan [00:05:17] And you are, and you’re charged with a crime, and they need to be able to, like, understand what does it mean to plead guilty or not guilty. They need to be able to communicate with their lawyer. This fellow couldn’t do any of those things. And so, a judge initially found that he was unfit to even perform those basic functions. And so, at that point, he was sent to a secure psychiatric facility where he spent seven months trying to get him stabilized to the point where he could understand those basic things. During that period of time, he was discovered again to be drinking his own urine and hiding plates of feces under his bed. But eventually they got him stabilized to the point where he was fit. So, he knew those things. Like, That’s the judge and this is your lawyer. Those basic concepts so that they could even proceed. And then the decision which just came out was a decision by the judge, meaning to determine whether this man was criminally responsible for what he did when he heard these voices. Lucifer telling him that he needed to attack the neighbour and the cousin.
Adam Stirling [00:06:29] (Sigh) Yeah.
Michael T. Mulligan [00:06:29] and in order to do that. The judge heard evidence from two psychiatrists and had no trouble at the end of the day, concluding that indeed, no, this man was not criminally responsible. And the reason there was some issue there, even when you hear that factor and say, oh, geez, how could that be more clear? There is a basic concept that that concept of being not criminally responsible as a result of a mental disorder does not apply unless a mental disorder is a disease of the mind and not something which is brought on by involuntary intoxication.
Adam Stirling [00:07:08] hmm.
Michael T. Mulligan [00:07:09] Like a person just takes a bunch of drugs.
Adam Stirling [00:07:12] Yeah.
Michael T. Mulligan [00:07:12] Or drinks, a bunch of alcohol and then does something bizarre. They wouldn’t get the benefit of being found not to be a benefit, not criminally responsible as a result of a mental disorder. And here, this man, in addition to having these profound mental disorders, also apparently use of drugs. And so, the judge a deal as well was his belief in hearing Lucifer telling him we need to attack the neighbour; was that just a function of the drugs he took or ultimately is this man, somebody who was suffering from a disease of the mind such that he couldn’t determine what he was doing was wrong. Right.
Adam Stirling [00:07:52] yeah.
Michael T. Mulligan [00:07:52] When he acted in that way.
Adam Stirling [00:07:53] Yeah.
Michael T. Mulligan [00:07:53] And so that’s what the judge had to deal with. And ultimately, the judge concluded that, well, yes, it does appear the man took drugs. That was not the cause of his behaviour. And so, the result of the case is that this man was found to be not criminally responsible as a result of a mental disorder. And the judge then referred into the review board. And what that means is that now, finally, after waiting for all of this to happen, the man will be kept in a secure facility, unless and until, a review board determines that he’s no longer going to be a danger to the public if he’s released. And that may be never. But when you read this case, what what’s really important about it is the clear background and pattern that page and have of previous convictions in and out of jail.
Adam Stirling [00:08:47] Yeah.
Michael T. Mulligan [00:08:48] Spending months or weeks in jail and being right back out on the street. And it really should cause people to think about whether this is what we should do. Do we wait for the person with profound mental illness and drug addiction to attack their elderly neighbour on the orders of Satan? Or should we be doing something proactively and be proactive response, and there should have been red lights going off all over the place,.
Adam Stirling [00:09:16] Yes.
Michael T. Mulligan [00:09:16] Right. He was previously, it sounds like, on the judge’s description, in and out of the mental health system, in and out of jails his whole life. Right. As you would expect. And if we had adequate resourcing in that system, this is an example of the kind of person that’s going to engage in random stranger attacks.
Adam Stirling [00:09:38] Exactly. Yes.
Michael T. Mulligan [00:09:39] Could it be any more clear when you hear the background I’ve just described?
Adam Stirling [00:09:42] Yes.
Michael T. Mulligan [00:09:43] And to my mind, rather than doing what we have done in this case and in so many cases, which is having the person cycle in and out of in and out of jails.
Adam Stirling [00:09:55] mmm hmm.
Michael T. Mulligan [00:09:55] and getting no better if we have the facilities, inmate applications. Under the Mental Health Act, where there is a place to actually put the person to get treatment. We could skip the step of having him randomly attack the neighbour.
Adam Stirling [00:10:11] Yes.
Michael T. Mulligan [00:10:11] And instead identify somebody like this, of which there are some people in the community. They just are, right.
Adam Stirling [00:10:18] Yeah.
Michael T. Mulligan [00:10:18] We don’t provide. They’re living in tents.
Adam Stirling [00:10:21] yeah.
Michael T. Mulligan [00:10:22] I rather suspect we’ll find out at the end of the day that the tragic death of Constable Yang was somebody dealing with somebody like this man.
Adam Stirling [00:10:31] Yeah.
Michael T. Mulligan [00:10:31] And rather than leaving people in tents and waiting until a tragedy like this or like that occurs, we should be dealing with it proactively. And when we’re dealing with or proactively the other thing to remember is, we should deal with it not getting angry with the person. Right. It is easy after the fact to get angry because of course, the innocent elderly neighbour, right?
Adam Stirling [00:10:54] Yeah.
Michael T. Mulligan [00:10:54] But really, you’re dealing with somebody who just has no grip on reality. Right.
Adam Stirling [00:11:01] Yeah.
Michael T. Mulligan [00:11:01] They think that, you know, Lucifer’s telling them to do this as they’re carving numbers into their arm, and so we shouldn’t deal with them in this somebody in this circumstance in an angry way.
Adam Stirling [00:11:13] hmm.
Michael T. Mulligan [00:11:13] We should deal with it in a way that is proactive and make sure that the public is safe. And that requires money and resources and proactive decision making. Right. You need to be able to make the decision and then you need facilities for people to be. And it’s not a humane thing to have somebody who’s dealing with this kind of profound mental illness just serve their 15 weeks in jail and then released into the community. It is not a humane thing to have somebody suffering from this kind of profound mental illness living in a tent. And so, it is timely, and it is a clear example of the sort of fact pattern which we should deal with before there’s some tragedy or death or serious assault. And we have a mechanism to do so. We just need the resources.
Adam Stirling [00:12:03] Michael Mulligan. I always appreciate the benefit of your knowledge and insight on these cases. We’ll continue this conversation coming up in just a few moments. Legally Speaking, continues right after this.
Adam Stirling [00:12:13] We continue Legally Speaking here on CFAX 1070, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Michael, we were just discussing the case of a man with a history of what, it certainly appears to my eye, to be profound mental illness finding his way into the mental health system. At long last\., I think that many of us can agree that everyone, including this individual, would have been better off if we had or he had found his way into the system sooner somehow. What’s next on our agenda?
Michael T. Mulligan [00:12:42] Next on the agenda is a case dealing with that process that we mentioned in that previous discussion about what happens when somebody is found unfit to stand trial. Right.
Adam Stirling [00:12:57] Yes
Michael T. Mulligan [00:12:57] And so that decision would be initially made by a judge. Right. Who would if the judge determines that a person isn’t fit to stand trial at the time they were in court, it’s not an assessment of what was going on at the time of the allegation, but at the time they show up in front of the judge. A judge, if there is a concern that a person is not able to comprehend things like that’s the judge and they are on trial and able to communicate with their lawyer, doesn’t even have that basic cognitive functioning. There can be an assessment done and ultimately the judge can determine that somebody is unfit to stand trial. And in the next case, that’s what happened. The judge found that a person who was charged with second degree murder was not fit to stand trial. And so, as a result of that, the person was put in a secure forensic facility. And what happens then is that there would be periodic reviews, in this case, they are doing it every 12 months of the person to determine are they now fit to stand trial.
Adam Stirling [00:14:04] hmm.
Michael T. Mulligan [00:14:04] That might change. Maybe they get enough treatment so that they’re able to comprehend those basic things.
Adam Stirling [00:14:10] hmm.
Michael T. Mulligan [00:14:10] And so this was a case where a person had spent a year in secure forensic facility after being found unfit to stand trial and the review board. That made the decision that the person was still unfit to stand trial. They still couldn’t comprehend those basic things despite an additional year of treatment. But the interesting legal issue that arose was that, clearly not the person, it must have been the lawyer on behalf of the person, given they’re not fit to even stand trial, suggested that the review board should redact some personal information from their decision, and in particular, personal information relating to the medical status of the accused person.
Adam Stirling [00:14:57] Interesting.
Michael T. Mulligan [00:14:57] Because otherwise review board decisions are public.
Adam Stirling [00:14:58] Yeah.
Michael T. Mulligan [00:14:59] So the lawyer said, well, you know, you should not include all of this very personal information in your public decision that the person is unfit and remains unfit to stand trial. And the review board sort of came out with their response to that was, first of all, we don’t think we have any authority to do that. And second of all, if we did have authority, we wouldn’t do it on the basis that there needs to be openness.
Adam Stirling [00:15:26] hmm.
Michael T. Mulligan [00:15:26] And so the public can see, you know, how did you reach this continued decision that the person remains unfit to stand trial? And so that was the issue that then went to the B.C. Supreme Court. And the B.C. Supreme Court decision, which just came out, concluded that the tribunal was mistaken in its finding that it didn’t have the authority to redact information that might be very private information, or indeed information that might impact somebody’s right to a fair trial. However, on the facts of this case, there wasn’t a mistake made. Right. So, the decision from the B.C. Supreme Court will be instructive in future cases, telling the review board, yes, you’ve got jurisdiction, you have authority to redact information from your public decisions. Right. On the basis that it might have a profound impact on somebody’s privacy interests, or, for example, that releasing some information might impact on that person’s ability to get a fair trial in the future. But this there’s a strong presumption that the process is an open and transparent one, just like the rest of the criminal justice system, right?
Adam Stirling [00:16:35] Yeah.
Michael T. Mulligan [00:16:35] And just like you presumptively can go and get judges reasons for their decisions, and anyone can go online and read them to make sure that they’re reasonable and fair and made appropriately. There’s a strong presumption of that. But the review board is not powerless, they could in an appropriate case make a decision that something should be removed from the public decision to preserve privacy interests or to ensure somebody is going to have a fair trial. So that brings us to the final case on the docket for today.
Adam Stirling [00:17:08] Yes.
Michael T. Mulligan [00:17:09] Which is a local Victoria one, which also deals with the issue of keeping information from the public. And it’s a case dealing with the tragic murder of Lindsay Buziak, the Victorian real estate agent who was murdered while showing a home back in February of 2008. And this was an application to have some of the investigative material made public. It’s been 14 years. Nobody’s been charged. And so, there’s a whole series of material. I think it was 33 different or 35 different things for which there have been sealing orders put in place.
Adam Stirling [00:17:56] hmm.
Michael T. Mulligan [00:17:56] And those are for things like, for example, if the police apply for a search warrant, for example.
Adam Stirling [00:18:02] Yes.
Michael T. Mulligan [00:18:03] They would have to set out why they believe they have grounds to conduct the search. And unless there’s some order made, once that search is conducted, public would be able to go and access that. Say okay, why did you search Bob’s house? What’s going on there?
Adam Stirling [00:18:20] Yeah.
Michael T. Mulligan [00:18:20] But there can be circumstances where information can be kept secret. And there are 35 such orders in that investigation.
Adam Stirling [00:18:32] 35.
Michael T. Mulligan [00:18:34] And so the judge had to determine whether any of the grounds upon which information can be kept secret should still apply after 14 years to keep them secret. The reasons information can be kept secret include; if the information would reveal the identity of a confidential informant, and in this case, that could include both confidential informants who are known as well as Crimestoppers callers.
Adam Stirling [00:19:03] hmm.
Michael T. Mulligan [00:19:03] You can also keep information secret from the public if it would compromise the nature and extent of an ongoing investigation. I’ll come back to That. You can keep it secret if it would prejudice the interest of an innocent person or if it would reveal and investigative technique, that the police wouldn’t want the public to know about. And one of the interesting things that form part of this decision and of course, this is a case that’s a really high, a high degree of public interest, particularly here in Victoria, is this, it comes from paragraph 108 of the decision. ” Despite years of past investigation is very much active and ongoing. There are a number of police officers and agencies involved. This is one of extraordinary complexity involving many witnesses and thousand pieces of evidence while those responsible for the murder are violent with little regard for human life. Individual involved are justifiably, a free release of information could result in others being placed at serious risk of physical harm. There is a strong possibility of potential harm resulting from the unsealing of the remaining redactions, and such harm would be serious.”
Adam Stirling [00:20:16] 14 years later. Wow.
Michael T. Mulligan [00:20:18] So the, and the judge has reviewed many of these documents. And so, what you can take from that is that this investigation is not done.
Adam Stirling [00:20:28] No.
Michael T. Mulligan [00:20:30] It is ongoing. It is extremely complicated. And the judge has made a determination here that if this information was not kept secret, that there was a strong possibility of potential harm, and that harm would be serious. And there’s a concern here about serious risk of physical harm, which suggests that the judge was persuaded on the evidence that they reviewed, and the submissions they heard, that this isn’t some closed investigation and it is active and ongoing, and indeed that there would be physical risk to people potentially, if this information was unsealed. It doesn’t say what that is or who would be at risk, but it does make clear that the investigation is not finished. The judge also found that disclosure of the police investigation theory and techniques being used would undermine the investigation. And so, what you can draw from that, again, is that this is not a closed case or an investigation which is finished, but a case where the judge has determined, based on the evidence they reviewed and the submissions they heard that this is complex, ongoing. And those things that we talked about is potential reasons why you might keep what is presumptively public information secret are engaged to the extent that there isn’t any other possible remedy here. It is necessary to keep these sealing orders all in place, the 35 of them. And so, it’s a really interesting decision to read from a public perspective as a member of the community.
Adam Stirling [00:22:19] Mm hmm.
Michael T. Mulligan [00:22:20] And it is clear that despite the time that’s going by, this is not now a matter which has been concluded or closed up or they run out of things to do. It’s a case where there is an active, complex police investigation ongoing, and if the information was made public, that could be both interfered with and people could be put in physical jeopardy. And so, despite that strong presumption that these things should be open, the conclusion is that they must remain sealed. And the strong implication here is that there may be more to or more to come.
Adam Stirling [00:22:57] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, thank you for the benefit of your knowledge and insight in all of these segments, Michael. I always learn something new when I get something out of them every single week, and I know that many members of our audience do as well, so it’s much appreciated.
Michael T. Mulligan [00:23:10] Thank you so much. I look forward to doing it every week. It’s been a pleasure.
Adam Stirling [00:23:13] Absolutely. We’ll talk to you next week. Take care.
Michael T. Mulligan [00:23:15] Thank you.
Automatically Transcribed on November 7, 2022 – MULLIGAN DEFENCE LAWYERS