Regina v. Allan Dwayne Schoenborn

8/31/2017 2017 BCSC 1556 R. v.
Schoenborn
IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: R. v. Schoenborn,
2017 BCSC 1556
Date: 20170831
Docket: X078569
Registry: New Westminster
Regina
v.
Allan Dwayne Schoenborn
These Reasons have been drafted to comply with existing

publication restrictions
Before: The Honourable Madam Justice Devlin
Reasons for Judgment
Counsel for Crown: W. Dawson, Q.C.

M. Booker
T. Shaw
Counsel for Accused: P.J. Wilson, Q.C.

R. Gill
E. Purtzki
J.M. Fedorikw, Articled Student
Place and Dates of Trial: New Westminster, B.C.

May 2-6, 9-13, 31, 2016
June 6-8, 21-23, 2016
August 29, 30, 2016
September 1, 2, 6-9, 2016
February 6, 7, 20-24, 2017
March 6-10, 13-15, 24, 2017
April 24, 2017
May 1, 2017
June 2, 12-16, 26-30, 2017
Place and Date of Judgment: New Westminster, B.C.

August 31, 2017
Table of Contents
http://www.courts.gov.bc.ca/jdb-txt/sc/17/15/2017BCSC1556.htm 1/86
8/31/2017 2017 BCSC 1556 R. v. Schoenborn
I. INTRODUCTION
II. THE NCRMD REGIME - PART XX.1 OF THE CODE
III. THE HIGH RISK ACCUSED REGIME
IV. STATUTORY INTERPRETATION OF THE HRA REGIME
A. What do ss. 672.64(1) and (2) of the Code Require?
(1) Substantial likelihood in s. 672.64(1)(a)
(2) Violence that could endanger the life or safety of another person in s. 672.64(1)(a)
1) Force based or harm based definition of violence
2) Threats and psychological harm
3) Severity of the potential harm
(3) Brutal nature in s. 672.64(1)(b)
(4) Risk in s. 672.64(1)(b)
(5) Grave physical or psychological harm in s. 672.64(1)(b)
(6) Pattern of repetitive behaviour of which the offence forms a part in s. 672.64(2)(b)
V. BACKGROUND FACTS
A. Childhood and Early Years
B. Criminal Record
C. Family History and Relationship with Darcie Clarke
D. History of Mental Illness
E. 2007 and 2008: Separation from Ms. Clarke and declining mental health
F. The Murders
G. The NCRMD Verdict
H. Review Board hearings and time at FPH
VI. THE HRA APPLICATION
1. Consideration of the s. 672.64(2) Factors
(a) Nature and circumstances of the offence
Nature of the Offences
Circumstances of the Offences
Did anger play a role in the murders?
(b) Is there any pattern of repetitive behaviour of which the offence forms a part?
(i) Do the three murders establish a pattern of repetitive behaviour?
(ii) Do the murders form part of a large pattern of chronic aggressive behaviour?
(iii) Do the murders form part of a pattern of serious physical violence associated with psychotic
symptoms and psychosis?
(c) Mr. Schoenborns current mental condition
Opinion of Dr. Hediger
Opinion of Dr. OShaughnessy
(d) The past and expected course of Mr. Schoenborns treatment, including his willingness to
follow treatment
Evidence of Ms. Lee
Opinion of Dr. Cooper

Opinion of Dr. Cook
Expected Course of Mr. Schoenborns Treatment
(e) The opinions of experts who have examined Mr. Schoenborn
Opinion of Dr. Lohrasbe
Opinion of Dr. Brink
(f) Other evidence
Risk Assessments using the HCR-20 Violence Assessment Tool
Opinion of Dr. Semrau
Opinion of Dr. Hart
VII. ANALYSIS
1. s. 672.64(1)(a)
2. s. 672.64(1)(b)
VIII. CONCLUSION
EXECUTIVE SUMMARY
I. INTRODUCTION
[1] The Crown applies to have Allan Dwayne Schoenborn found a high-risk accused (HRA)
pursuant to s. 672.64(1)(a) or, in the alternative, s. 672.64(1)(b) of the Criminal Code, R.S.C. 1985,
c. C-46 [Code]. As discussed further below, these provisions enable the court to find an accused to be
a HRA if he or she has been found not criminally responsible on account of mental disorder
(NCRMD) for a serious personal injury offence, committed while the accused was 18 years of age or
older, and if certain other criteria as set out in ss. 672.64(1)(a) and (b) are established. The result of
such a finding is that the HRA will be detained in a hospital under stricter terms than those that apply
to other not criminally responsible (NCR) accused.
[2] By way of brief contextual overview, on February 22, 2010 Powers J. found Mr. Schoenborn
NCRMD for the first degree murders of his three children, in reasons indexed at 2010 BCSC 220 (the
trial decision). Mr. Schoenborn has been under the jurisdiction of the BC Review Board and detained
at the Forensic Psychiatric Hospital (FPH) since that time. The HRA regime in the Code was enacted
through the Not Criminally Responsible Reform Act, S.C. 2014, c. 6 [NCR Reform Act], which received
Royal Assent on April 11, 2014 and came into force on July 11, 2014. On September 4, 2015, the
Crown applied to have Mr. Schoenborn found to be a HRA under s. 672.64(1). On December 2, 2015,
in reasons indexed at 2015 BCSC 2254 (the retrospectivity decision), I determined that the HRA
regime applied retrospectively, such that the Crown could proceed with the application despite
Mr. Schoenborn having been found NCRMD before the regime came into force.
[3] Mr. Schoenborn opposes the application on its merits, and also challenges the constitutionality
of the HRA regime, arguing it infringes s. 7 of the Canadian Charter of Rights and Freedoms, Part I of
the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. He
also argues that the application of the HRA regime to individuals who, like himself, were found
NCRMD before the regime came into force infringes s. 11(h) of the Charter.
[4] This is one of the first applications to be brought under s. 672.64(1). As a result, the application
raises numerous issues of statutory interpretation in respect of the criteria in ss. 672.64(1)(a) and (b),
and the factors in s. 672.64(2) that must be considered in determining whether those criteria have
been made out.
[5] In these reasons I will begin by reviewing the legislative backdrop of the NCRMD regime in Part
XX.1 of the Code, and then discuss the provisions of the more recently enacted HRA regime. Next I
will analyze and interpret the provisions in s. 672.64 dealing with the prerequisites for a HRA finding,
and then apply them to the Crowns application to have Mr. Schoenborn found a HRA.
[6] For the reasons given below, I do not find that Mr. Schoenborn meets the criteria for a HRA
designation, and I dismiss the Crowns application. These reasons will therefore not address
Mr. Schoenborns applications under ss. 7 and 11(h) of the Charter.
II. THE NCRMD REGIME - PART XX.1 OF THE CODE
[7] I begin with a discussion of Part XX.1 of the Code, since an understanding of this legislation is
necessary to appreciate the statutory context that will inform much of the statutory interpretation of the
HRA regime that follows.
[8] In 1991, Parliament established a new legislative regime to deal with offenders whose mental
illness rendered them incapable of appreciating the nature and quality of their criminal behaviour, or of
knowing that it was wrong, by enacting Part XX.1 of the Code. McLachlin J. (as she then was), writing
for a majority of the Court, reviewed the history, structure, and purpose of Part XX.1 at paras. 17-43 of
Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 [Winko], a seminal
decision in which that regime was found not to infringe ss. 7 or 15(1) of the Charter. She also
discussed the wording and function of s. 672.54, which governs the legal dispositions available in
respect of NCR accused, at paras. 44-63. At paras. 20-21, McLachlin J. wrote:
20 Part XX.1 reflected an entirely new approach to the problem of the mentally ill
offender, based on a growing appreciation that treating mentally ill offenders like other offenders
failed to address properly the interests of either the offenders or the public. The mentally ill
offender who is imprisoned and denied treatment is ill-served by being punished for an offence
for which he or she should not in fairness be held morally responsible. At the same time, the
public facing the unconditional release of the untreated mentally ill offender was equally ill-
served. To achieve the twin goals of fair treatment and public safety, a new approach was
required.
21 Part XX.1 rejects the notion that the only alternative for mentally ill people charged with
an offence are conviction or acquittal; it proposes a third alternative. Under the new scheme,
once an accused person is found to have committed a crime while suffering from a mental
disorder that deprived him or her of the ability to understand the nature of the act or that it was
wrong, that individual is diverted into a special stream. Thereafter, the court or a Review Board
conducts a hearing to decide whether the person should be kept in a secure institution, released
on conditions, or unconditionally discharged. The emphasis is on achieving the twin goals of
protecting the public and treating the mentally ill offender fairly and appropriately.
[9] Part XX.1 sets out a comprehensive regime to implement the approach described by
McLachlin J.
[10] Section 672.38 provides for the establishment of Review Boards in each province, consisting of
not fewer than five members appointed by the Lieutenant Governor in Council of the province, to
make or review dispositions concerning NCR accused. The quorum of a Review Board consists of the
chairperson (who must be a judge of the Federal Court or of a superior, district or county court of a
province, or a person qualified for appointment to or who has retired from such a judicial office); a
member who is entitled under the laws of a province to practice psychiatry; and any other member:
ss. 672.4(1) and 672.41(1). Where only one Review Board member is entitled to practice psychiatry
under the laws of a province, at least one other member must have training and experience in the field
of mental health and be entitled under the laws of a province to practice medicine or psychology:
s. 672.39. A decision of a majority of the members present and voting is a decision of a Review Board:
s. 672.42.
[11] Where a verdict of NCRMD is rendered, the court may of its own motion, and must on
application by the accused or prosecutor, hold a disposition hearing, and must make a disposition in
respect of the accused if satisfied that it can readily do so and that a disposition should be made
without delay: s. 672.45(1) and (2). If the court does not hold a hearing under s. 672.45(1), it must
send the Review Board any transcript of the proceedings, any other document or information related
to the proceedings, and all exhibits filed with it without delay: s. 672.45(1.1). In that case, the
accuseds release or detention order continues in force until the Review Board renders a disposition,
unless the court otherwise orders: s. 672.46. If the court has not made a disposition with respect to an
accused after the NCRMD verdict, the Review Board must hold a hearing and make a disposition
within 45 days of the verdict, or 90 days in exceptional circumstances: s. 672.47(1) and (2). Where a
court makes a disposition other than an absolute discharge, the Review Board must hold a hearing
and make its own disposition not later than 90 days after the courts disposition: s. 672.47(3).
[12] Section 672.5 establishes the procedure to be followed by a court or Review Board in holding a
hearing to make or review a disposition in respect of a NCR accused. The hearing may be informal:
s. 672.5(2). The accused has the right to be present during the whole of the hearing except in certain
specified circumstances: s. 672.5(9) and (10). The court or Review Board may designate as a party
any person who has a substantial interest in protecting the interests of the accused, and may on
application designate as a party the Attorney General of the province where the designation is to be
made and, where an accused is transferred from another province, the Attorney General of that
province: ss. 672.5(4) and (3). The accused or any other party has the right to be represented by
counsel: s. 672.5(7). Any party may adduce evidence, make oral or written submissions, call
witnesses and cross-examine any witness called by the other party, and on application may cross-
examine any person who made an assessment report that was submitted to the court or Review
Board in writing: s. 672.5(11). Any party may request that the court or Review Board compel the
attendance of a witness: s. 672.5(12). The court or Review Board may adjourn the hearing for a period
of up to 30 days if necessary to ensure that relevant information is available or for any other sufficient
reason: s. 672.5(13.1). Any victim of the offence for which the accused was found NCRMD may
prepare and file a written statement describing the harm done or loss suffered as a result of the
offence, and may read the statement or present it in any other manner the court or Review Board
considers appropriate, unless doing so would interfere with the proper administration of justice:
ss. 672.5(13.2) to (16). As noted in Winko at paras. 52 and 62, the proceeding before the court or
Review Board is not adversarial. The court or Review Board must seek out the evidence required to
make a disposition if the parties do not present sufficient information. A Review Board with jurisdiction
over a NCR accused may order an assessment of the accuseds mental condition of its own motion or
on application if it has reasonable grounds to believe that such evidence is necessary to make a
disposition in certain circumstances: s. 672.121(b).
[13] Section 672.54 sets out the three possible dispositions available to the court or Review Board
following a hearing. They are: (a) absolute discharge; (b) discharge subject to conditions the court or
Review Board considers appropriate; or (c) detention in a hospital, subject to such conditions as the
court or Review Board considers appropriate. The court or Review Board may not direct as a condition
that the NCR accused submit to psychiatric or other treatment, or that such treatment be carried out,
unless the accused has consented to the condition and the court or Review Board considers it to be
reasonable and necessary in the interests of the accused: s. 672.55(1). The court or Review Board
may also delegate to the person in charge of the hospital where the NCR accused is detained in
custody the authority to direct that the restrictions on the NCR accuseds liberty be increased or
decreased within any limits and subject to any conditions set out in the disposition: s. 672.56(1). If
there is a significant increase in the restrictions on the NCR accuseds liberty under this delegated
authority, the person who increases the restrictions must give notice of the increase to the accused as
soon as practicable and, if the increased restrictions remain in force for more than seven days, must
give notice to the Review Board: s. 672.56(2).
[14] NCR accused who are discharged absolutely are no longer subject to the jurisdiction of the
court or Review Board under Part XX.1 and are no longer within the criminal justice system in respect
of the offence for which they were found NCRMD: R. v. Conway, 2010 SCC 22 at para. 92. In making
a disposition, the court or Review Board is to take into account the safety of the public as the
paramount consideration, as well as the mental condition of the accused, the reintegration of the
accused into society, and the other needs of the accused, and must make the disposition that is
necessary and appropriate in the circumstances: s. 672.54. The requirement that the disposition be
necessary and appropriate has been interpreted to mean that the disposition must be the least
onerous and least restrictive one available in the circumstances (as the language of s. 672.54 used to
provide), having regard to the considerations the court or Review Board must take into account: see
Ranieri (Re), 2015 ONCA 444 at para. 20; Carrick (Re), 2015 ONCA 866 at para. 15; and Nelson v.
British Columbia (Adult Forensic Psychiatric Services), 2017 BCCA 40 at para. 26.
[15] Restrictions on the liberty of a NCR accused will only be constitutional when necessary to
protect the public from significant threats to its safety: Winko at para. 47, citing R. v. Swain, [1991] 1
S.C.R. 933. Section 672.54(a) provides that the court or Review Board must direct that the NCR
accused be discharged absolutely if it is of the opinion that the accused is not a significant threat to
the safety of the public. A significant threat to the safety of the public means a risk of serious physical
or psychological harm to members of the public resulting from conduct that is criminal in nature but not
necessarily violent: s. 672.5401. The threat posed must be supported by evidence, not speculative,
and must be significant both in the sense that it represents a real risk of physical or psychological
harm to members of the public, and in the sense that the potential harm must be serious - it is not
enough that there be a low risk of grave harm or a high risk of trivial harm: Winko at para. 57.
[16] As noted at paras. 58-59 of Winko, evaluating whether a NCR accused poses a significant
threat to public safety is an extremely difficult and context-specific task. At para. 62 of Winko,
McLachlin J. provided the following guidance:
5. The court or Review Board may have recourse to a broad range of evidence as it seeks to
determine whether the NCR accused poses a significant threat to the safety of the public. Such
evidence may include the past and expected course of the NCR accuseds treatment, if any, the
present state of the NCR accuseds medical condition, the NCR accuseds own plans for the
future, and the assessments provided by experts who have examined the NCR accused. This list
is not exhaustive.
6. A past offence committed while the NCR accused suffered from a mental illness is not, by
itself, evidence that the NCR accused continues to pose a significant risk to the safety of the
public. However, the fact that the NCR accused committed a criminal act in the past may be
considered together with other circumstances where it is relevant to identifying a pattern of
repetitive behaviour, and hence to the issue of whether the NCR accused presents a significant
threat to public safety.
[17] There must be evidence to support a positive finding of a significant risk to the public before the
court or Review Board can restrict a NCR accuseds liberty by making a disposition under s. 672.54(b)
or (c) - that is, by directing anything other than an absolute discharge: Winko at para. 49. Where the
court or Review Board finds the NCR accused is not a significant threat to public safety, it must order
an absolute discharge: Winko at para. 52. Otherwise, it must order a discharge or detention in
hospital, subject to conditions the court or Review Board considers appropriate. In deciding whether to
direct that the NCR accused be discharged on conditions or detained in custody in a hospital following
a finding that he or she poses a significant threat to public safety, and in formulating the conditions to
which the NCR accused will be subject in either case, the court or Review Board must consider the
factors set out in s. 672.54 and make the order that is necessary and appropriate in the
circumstances, in the sense of being the least onerous and least restrictive to the NCR accused:
Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20 at para. 45.
Essentially, the court or Review Board must balance the NCR accuseds liberty interests against the
need to protect the public, and attempt to craft a disposition that achieves the appropriate balance, in
fashioning any disposition, including the imposition of conditions in respect of a discharge or detention
in custody.
[18] If the court or Review Board directs a disposition other than an absolute discharge, the Review
Board must hold a hearing to review the disposition no later than 12 months after that disposition, and
every 12 months thereafter, for as long as the disposition remains in force: s. 672.81(1). The Review
Board may extend the time for holding a hearing to review a NCR accuseds disposition up to a
maximum of 24 months under certain conditions: s. 672.81(1.1) to (1.5). The Review Board must hold
a hearing to review any disposition other than an absolute discharge as soon as practicable after
receiving notice that the person in charge of the place where the accused is detained or directed to
attend requests the review, or as soon as practicable after receiving notice that a decision has been
made to significantly increase restrictions on the accuseds liberty pursuant to any authority delegated
in s. 672.56: s. 672.81(2) and (2.1). The Review Board may also hold a discretionary review at any
time, either on its own motion or at the request of the accused or any other party: s. 672.82. At a
hearing under s. 672.81 or s. 672.82, the Review Board must review the disposition previously made
in respect of the NCR accused and make any disposition it considers to be appropriate in the
circumstances.
[19] At para. 59 of Winko, McLachlin J. wrote the following about the Review Boards difficult role in
continuously assessing the status of NCR accused:
59 although it has allowed courts to make an initial determination, Parliament has created
a system of specialized Review Boards charged with sensitively evaluating all the relevant
factors on an ongoing basis and making, as best it can, an assessment of whether the NCR
accused poses a significant threat to the safety of the public. This assessment is not a
guarantee, but it is unrealistic to expect absolute certainty from a regime charged with evaluating
the impact of individual, human factors on future events. As La Forest J. wrote in R. v. Lyons,
[1987] 2 S.C.R. 309, at p. 364, in the context of the dangerous offender provisions of the Code:
the life of the law has not been logic: it has been experience. The criminal law must
operate in a world governed by practical considerations rather than abstract logic and, as
a matter of practicability, the most that can be established in a future context is a
likelihood of certain events occurring.
[20] In addition to these mandatory reviews, any party may appeal against a disposition made by a
court or Review Board to the Court of Appeal of the province where the disposition was made on a
question of law or fact or mixed law and fact: s. 672.72(1). The Court of Appeal may allow an appeal
against a disposition and set aside an order made by the court or Review Board where it is of the
opinion that the disposition is unreasonable or unsupported by the evidence, based on a wrong
decision on a question of law, or resulted in a miscarriage of justice: s. 672.78(1). Where the Court of
Appeal allows an appeal against a disposition, it may make any disposition under s. 672.54 that the
Review Board could have made, or refer the matter back to the Review Board for rehearing, or make
any other order that justice requires: s. 672.78(3).
[21] McLachlin J. concluded her review of Part XX.1 as follows at paras. 42-43 of Winko:
42 By creating an assessment-treatment alternative for the mentally ill offender to supplant
the traditional common law conviction-acquittal dichotomy, Parliament has signalled that the
NCR accused is to be treated with the utmost dignity and afforded the utmost liberty compatible
with his or her situation. The NCR accused is not to be punished. Nor is the NCR accused to
languish in custody at the pleasure of the Lieutenant Governor, as was once the case. Instead,
having regard to the twin goals of protecting the safety of the public and treating the offender
fairly, the NCR accused is to receive a disposition that is the least onerous and least restrictive
one compatible with his or her situation, be it an absolute discharge, a conditional discharge or
detention: s. 672.54.
43 In summary, the purpose of Part XX.1 is to replace the common law regime for the
treatment of those who offend while mentally ill with a new approach emphasizing individualized
assessment and the provision of opportunities for appropriate treatment. Under Part XX.1, the
NCR accused is neither convicted nor acquitted. Instead, he or she is found not criminally
responsible by reason of mental illness at the time of the offence. This is not a finding of
dangerousness. It is rather a finding that triggers a balanced assessment of the offenders
possible dangerousness and of what treatment-associated measures are required to offset it.
Throughout the process the offender is to be treated with dignity and accorded the maximum
liberty compatible with Part XX.1s goals of public protection and fairness to the NCR accused.
III. THE HIGH RISK ACCUSED REGIME
[22] The NCR Reform Act, which came into force on July 11, 2014, provided for numerous
amendments to Part XX.1 of the Code, including the creation of the HRA designation in s. 672.64.
That section provides as follows:
672.64 (1) On application made by the prosecutor before any disposition to discharge an accused
absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused
if the accused has been found not criminally responsible on account of mental disorder for a serious
personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or
more at the time of the commission of the offence and
(a) the court is satisfied that there is a substantial likelihood that the accused will use
violence that could endanger the life or safety of another person; or
(b) the court is of the opinion that the acts that constitute the offence were of such a
brutal nature as to indicate a risk of grave physical or psychological harm to another
person.
(2) In deciding whether to find that the accused is a high-risk accused, the court shall consider all
relevant evidence, including
(a) the nature and circumstances of the offence;
(b) any pattern of repetitive behaviour of which the offence forms a part;
(c) the accuseds current mental condition;
(d) the past and expected course of the accuseds treatment, including the accuseds
willingness to follow treatment; and
(e) the opinions of experts who have examined the accused.
(3) If the court finds the accused to be a high-risk accused, the court shall make a disposition under
paragraph 672.54(c), but the accuseds detention must not be subject to any condition that would
permit the accused to be absent from the hospital unless
(a) it is appropriate, in the opinion of the person in charge of the hospital, for the accused
to be absent from the hospital for medical reasons or for any purpose that is
necessary for the accuseds treatment, if the accused is escorted by a person who is
authorized by the person in charge of the hospital; and
(b) a structured plan has been prepared to address any risk related to the accuseds
absence and, as a result, that absence will not present an undue risk to the public.
(4) A decision not to find an accused to be a high-risk accused is deemed to be a disposition for the
purpose of sections 672.72 to 672.78.
(5) For greater certainty, a finding that an accused is a high-risk accused is a disposition and
sections 672.72 to 672.78 apply to it.
[23] As can be seen, s. 672.64(1) provides that a NCR accused can be found a HRA on application
by the prosecutor to the court (not the Review Board) if the following criteria are met: (1) he or she
was found NCRMD for a serious personal injury offence as defined in s. 672.81(1.3) of the Code; (2)
he or she was 18 years of age or older at the time of the commission of that offence; (3) he or she has
not been discharged absolutely; and (4) the court is either:
(a) satisfied there is a substantial likelihood the accused will use violence that could endanger the
life or safety of another person; or
(b) of the opinion that the acts that constitute the offence were of such a brutal nature as to
indicate a risk of grave physical or psychological harm to another person.
[24] The main test, set out in s. 672.64(1)(a) and (b), relates to the NCR accuseds dangerousness,
or the threat he or she poses to public safety. Sections 672.64(1)(a) and (b) are disjunctive, meaning
the court may find the NCR accused to be a HRA if the criteria in either one of these alternative tests
are established. Pursuant to s. 672.64(2), in deciding whether to find the accused a HRA under
s. 672.64(1)(a) or (b), the court must consider all relevant evidence, including the following factors:
(d) the past and expected course of the accuseds treatment, including the accuseds willingness to
follow treatment; and
[25] Pursuant to s. 672.64(3), if the court finds the accused to be a HRA, it must direct that he or
she be detained in a hospital under s. 672.54(c), and this detention must not be subject to any
condition that would allow the accused to be absent from the hospital unless the person in charge of
the hospital is of the opinion that the accuseds absence is appropriate for medical reasons or for any
purpose necessary for the accuseds treatment, the accused is escorted by a person authorized by
the person in charge of the hospital, and a structured plan has been prepared such that the accuseds
absence will not present an undue risk to the public. This restriction on the accuseds ability to be
absent from the hospital continues to apply where the Review Board has delegated authority to
decrease the restrictions on the accuseds liberty to the person in charge of the hospital where the
accused is detained: s. 672.56(1.1).
[26] As I found in the retrospectivity decision at para. 16, the purpose of this new regime is to
ensure the protection of the public against NCR accused who are considered dangerous and present
an unacceptable risk to society based on an assessment of current dangerousness. Clearly the threat
posed by such accused must be greater than that which is necessary to make one of the dispositions
that are already in place in s. 672.54(b) and (c) for accused who present a significant threat to the
safety of the public.
[27] Sections 672.64(4) and (5) provide that a HRA finding may be appealed to the appropriate
Court of Appeal pursuant to the provisions in ss. 672.72 and 672.78.
[28] A HRA finding is also subject to mandatory review by the Review Board pursuant to the
provisions in ss. 672.47, 672.81, and 672.84 of the Code. Under s. 672.47(3), if the court makes a
disposition under s. 672.64(3) in respect of a HRA, the Review Board must hold a hearing and make a
disposition under s. 672.54(c). The court may extend the time for such a hearing to a maximum of 90
days if satisfied there are exceptional circumstances that warrant it: s. 672.47(4).
[29] Pursuant to s. 672.81(1), further reviews must generally occur every 12 months as long as the
disposition remains in force; however the Review Board may extend the time for holding a review
hearing in respect of a HRA to a maximum of 36 months if the accused is represented by counsel and
both the accused and the Attorney General consent to the extension, or if the Review Board is
satisfied on the basis of any relevant information that the accuseds condition is not likely to improve
and that detention remains necessary for the period of the extension: ss. 672.81(1.31) and (1.32). The
latter type of extension may be appealed to the court of appeal: s. 672.81(1.5).
[30] If the Review Board is satisfied after a review hearing that there is not a substantial likelihood
the accused will use violence that could endanger the life or safety of another person - whether he or
she found to be a HRA under s. 672.64(1)(a) or (b) - it must refer the HRA finding for review to the
superior court of criminal jurisdiction: s. 672.84(1). If the Review Board is not so satisfied, it must
review the conditions of the accuseds detention, if any, under s. 672.54(c), which remain subject to
the restriction in s. 672.64(3): s. 672.84(2). The Review Board may order an assessment of the HRAs
mental condition of its own motion or on application if it has reasonable grounds to believe such
evidence is necessary to determine whether to refer the HRA finding to the court for review:
s. 672.121(c).
[31] The court to which a HRA finding is referred by the Review Board must revoke the finding if
satisfied there is not a substantial likelihood that the accused will use violence that could endanger the
life or safety of another person, and must then make a disposition under s. 672.54, which may include
an absolute discharge: s. 672.84(3). If the court to which a HRA finding is referred by the Review
Board does not revoke the HRA finding, it must send a transcript of the hearing, any other document
related to the hearing, and all exhibits filed with it to the Review Board, which must hold another
review hearing to review the conditions of the accuseds detention as soon as practicable and not later
than 45 days after the court decides not to revoke the finding: s. 672.84(5).
[32] A decision by the Review Board under s. 672.84(1) about referring the HRA finding to the court
for review, or a decision by the court under s. 672.84(3) about revoking the finding, may be appealed
to the appropriate Court of Appeal: s. 672.84(6).
IV. STATUTORY INTERPRETATION OF THE HRA REGIME
[33] Before I begin my consideration of the Crowns application, I must determine how the
provisions in s. 672.64 dealing with the criteria for a HRA finding should be read. In particular, the
following points of statutory interpretation must be determined:
(1) What is the meaning of substantial likelihood in s. 672.64(1)(a)?
(2) What is the meaning of violence that could endanger the life or safety of another person in
s. 672.64(1)(a)?
(3) What is the meaning of brutal nature in s. 672.64(1)(b)?
(4) What is the meaning of risk in s. 672.64(1)(b)?
(5) What is the meaning of grave physical or psychological harm in s. 672.64(1)(b)?
(6) What is the meaning of a pattern of repetitive behaviour of which the offence forms a part in
s. 672.64(2)(b)?
[34] In answering these questions, I must apply the modern approach to statutory interpretation
described in Elmer A. Driedger, The Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at
87, and adopted by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R.
27 at para. 21. Under that approach, the words in an Act must be read in their entire context and in
their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament. In the criminal context, the application of the modern approach may
involve looking at the grammatical and ordinary sense of the words, their place within the Code, the
provisions legislative history and evolution, if any, and any jurisprudence interpreting the words: R. v.
Borowiec, 2016 SCC 11 at para. 18.
[35] Mr. Schoenborn argues through his counsel that the meaning of the term substantial
likelihood in s. 672.64(1)(a) is the same as the meaning of the term significant threat in ss. 672.54
and 672.5401. He submits that both terms refer to a risk or threat that is real or likely, not speculative
or illusory. (It will be recalled that the Court in Winko clarified that a significant threat in s. 672.54
means a threat that is not speculative, but rather based on evidence, and that represents a real risk.)
In support of this submission, counsel referred me to R. v. Young, 2010 ONSC 4194 [Young] at
para. 20 and R v. Morrison, 2012 ABQB 619 [Morrison] at paras. 32-43, in which the courts discussed
the concept of a significant likelihood as it appears in other parts of the Code. These cases generally
support the proposition that the term substantial likelihood, at least as it is used in other parts of the
Code (specifically in relation to the secondary ground for pretrial detention under s. 515(10)(b) and the
judicial screening threshold for bringing an application to reduce an offenders parole ineligibility under
s. 745.61), does not require a finding that a future event is more likely to occur than not. A real or
tangible possibility may be enough in these contexts.
[36] Counsel also referred me to R. v. Ferguson, 2010 ONCA 810 [Ferguson] at para. 43, where
Doherty J.A., writing for the court, held that the evidence before the Ontario Review Board did not
suggest a significant likelihood of physical violence, and accordingly concluded there was no basis
for the Review Boards finding that the accused in that case posed a significant threat to the public
(there had been no suggestion of a risk of psychological harm). It is argued that this indicates the
threshold for a significant threat in s. 672.5401 is equivalent to a significant likelihood, which is
indistinguishable from a substantial likelihood. Mr. Schoenborn argues that all of these terms refer to
the same thing - a risk that is real or likely.
[37] Counsel submits that what distinguishes s. 672.5401 from s. 672.64(1)(a) is the type of threat
the NCR accused poses, not the degree of likelihood or probability that the threat will in fact
materialize. In particular, as discussed further below, Mr. Schoenborn argues that s. 672.64(1)(a)
requires a finding that the accused poses a significant threat to commit acts of physical aggression or
violence, such that he or she poses a threat to the life or physical safety of members of the public. A
risk of psychological harm, according to this submission, is insufficient under s. 672.64(1)(a). Thus,
Mr. Schoenborn argues that s. 672.64(1)(a) requires the same level of risk as s. 672.54, applied to a
more narrowly defined type of harm, being the infliction of physical harm.
[38] Leaving aside for the moment the submissions regarding the requirement of a risk of physical
rather than psychological harm in s. 672.64(1)(a), I do not agree with the submission that a
substantial likelihood in that section refers to the same degree of likelihood or probability as involved
in a significant threat in s. 672.5401. Instead, I agree with the Crown that a substantial likelihood in
s. 672.64(1)(a) refers to a level of risk that is greater than a significant threat within the meaning of
s. 672.5401. I reach this conclusion for a number of reasons.
[39] First, the grammatical and ordinary sense of the words. The adjective substantial means of
real importance, value, or validity, of large size or amount, and having substance, real: The
Concise Oxford Dictionary of Current English, 9th ed. (C.O.E.D.), s.v. substantial. The noun
likelihood means probability; the state or fact of being likely: C.O.E.D., s.v. likelihood. The
adjective likely means probable, such as might well happen or be true and to be reasonably
expected: C.O.E.D., s.v. likely. Probability means the state or condition of being probable and a
probable or most probable event: C.O.E.D., s.v. probability. Probable means that may be
expected to happen or prove true; likely: C.O.E.D., s.v. probable.
[40] In comparison, the adjective significant means having a meaning; indicative and
noteworthy; important; consequential: C.O.E.D., s.v. significant. The noun threat means an
indication of something undesirable coming and a person or thing as a likely cause of harm etc.:
C.O.E.D., s.v. threat. The noun risk, which is used in the definition of a significant threat to the
safety of the public in s. 672.5401, means a chance or possibility of danger, loss, injury, or other
adverse consequences: C.O.E.D., s.v. risk.
[41] In my view, while there appears to be little that can be made of the difference between the use
of the words likelihood and threat, the use of the word substantial in s. 672.64(1)(a), as compared
to significant in s. 672.54, indicates a greater level of risk that the threatened harm will actually
materialize. As noted, the meaning of the word substantial includes of large size or amount, while
the dictionary definition of the word significant contains no reference to an elevated quantum or
proportion of any property. Further, the use of the word likelihood in s. 672.64(1)(a) as compared to
risk in s. 672.5401 appears to signify a probability rather than a mere possibility of the threatened
harm materializing.
[42] Second, the statutory context and legislative history support the conclusion that Parliament
intended to require a finding of a greater level of risk for a HRA designation under s. 672.64(1)(a) than
is necessary to keep a NCR accused under Review Board jurisdiction under s. 672.54. The purpose of
the HRA regime is to protect the public from NCR accused who are considered to present an
unacceptably high risk, requiring a further reduction in their liberty in the form of mandatory custodial
detention and other restrictions. It would be illogical to ground these liberty deprivations in the same
level of risk that is already required to maintain Review Board jurisdiction over a NCR accused in the
pre-existing NCRMD regime, which already provides for custodial detention in a hospital where
necessary. To do so would unduly broaden the scope of the HRA criteria and result in an interpretation
that would not properly reflect the scheme or object of the legislation. It would not reflect the object of
the legislation because it would potentially capture those who do not pose an unacceptably high risk to
members of the public. It would not reflect the scheme of the legislation because it would not clearly
distinguish between the basis for a HRA finding as opposed to a finding that a NCR accused should
remain under the jurisdiction of the Review Board pursuant to an order under s. 672.54(b) or (c).
[43] Moreover, and more simply, if Parliament had intended substantial likelihood in s. 672.64(1)(a)
to be synonymous with significant threat in s. 672.54(a), then it could easily have chosen to use the
same words in both sections, such that s. 672.64(1)(a) required the court to be satisfied there was a
significant threat that the accused will use violence that could endanger the life or safety of another
person. The choice of different words in the same Part of the Code, in the same context of
determining the threat posed by a NCR accused, implies a different meaning, and given the elevated
deprivation of liberty flowing from a HRA finding in s. 672.64, the only sensible difference is that a
substantial likelihood entails a greater probability of occurrence than a significant threat.
[44] I am supported in this conclusion by the following comments of the former Minister of Justice in
his remarks in the Senate, Proceedings of the Standing Senate Committee on Legal and
Constitutional Affairs, Issue No. 3 (27 February 2014) at 3:34 (Hon. Peter MacKay):
After hearing evidence, a court could make a high-risk NCR accused finding in one of two
circumstances. First, the first circumstance is if the court is satisfied that there is a substantial
likelihood that the accused would use violence that could endanger the life or safety of the
public. The standard of substantial likelihood in the high risk designation process is higher than
significant threat - so we are raising the threshold - which is the test in the disposition-making
provision. This distinction serves to differentiate the two processes and ensure that the high-risk
NCR accused designation applies only to the most dangerous of individuals.
[Emphasis added.]
[45] And further, at 3:35:
I want to be clear that a high-risk NCR designation is not permanent. The designation can be
revoked once the elevated risk level has been mitigated
[Emphasis added.]
[46] Finally, there is the jurisprudence concerning the term substantial likelihood. As mentioned,
this concept appears in other provisions of the Code. In the bail context, the detention of an accused
in custody before trial is justified where necessary to protect the public in all of the circumstances,
including any substantial likelihood the accused will commit an offence or interfere with the
administration of justice if released: Code, s. 515(10)(b). Also, an offender serving a life sentence may
only bring an application to reduce the period of his or her parole ineligibility under s. 745.6(1) if,
among other things, he or she can establish, on a balance of probabilities, that there is a substantial
likelihood that the application will succeed: Code, ss. 745.61(1), (3), and (5). These were the
respective subjects of the discussions of the term substantial likelihood in the Young and Morrison
cases referred to above. I do not disagree with the general proposition in these cases that a
substantial likelihood can be satisfied by a real or tangible risk or prospect of something happening,
and does not necessarily involve a finding that something is more probable than not. However, for the
purposes of this analysis I respectfully adopt the following comment by Martin J. (as she then was) at
para. 40 of Morrison:
While the term substantial likelihood is thus used in many areas of law, in the case at bar, it must
be read in the context of this particular Criminal Code provision
[47] For the reasons set out above, in the context of s. 672.64(1)(a), a substantial likelihood must
be interpreted to mean a higher level of risk than a significant threat under ss. 672.54 and 672.5401.
The seeming equivalence in the Ferguson decision between a significant threat in s. 672.54 and a
significant likelihood does not detract from this conclusion. That decision was made before the
enactment of the HRA regime, and in any event it is reasonable to distinguish between a significant
likelihood and a substantial likelihood given the foregoing grammatical and contextual statutory
analysis.
[48] In my view, then, s. 672.64(1)(a) requires an elevated level of risk over and above that which is
involved in a significant threat for the purposes of s. 672.54, as defined in s. 672.5401. A substantial
likelihood in s. 672.64(1)(a) requires a high degree of probability. I turn next to the separate issue of
what type (as opposed to level) of risk is required by this provision.
(2) Violence that could endanger the life or safety of another person in
s. 672.64(1)(a)
[49] As mentioned, Mr. Schoenborn argues that the violence referred to in s. 672.64(1)(a) should
be interpreted to refer to physical violence according to a force based definition, rather than physical
or psychological violence according to a harm based definition. In the alternative, he proposes a
harm based definition of violence that includes only physical and not psychological harm, and thus
does not include threats. He relies on the cases of R. v. C.D.; R. v. C.D.K., 2005 SCC 78 [C.D.] and R.
v. Steele, 2014 SCC 61 [Steele], in distinguishing the concept of force based violence from that of
harm based violence (these cases and concepts will be discussed further below). Mr. Schoenborn
essentially submits that violence in s. 672.64(1)(a) should not include violence that would cause only
psychological harm, but should be limited to the actual infliction of bodily harm, or attempts to do so.
(While an attempt might not actually cause bodily harm and thus result in psychological harm only,
Mr. Schoenborns position reasonably accounts for the fact that it is impossible to meaningfully
distinguish between attempted and successful infliction of bodily harm when assessing future
dangerousness; an accused who is at risk of attempting to inflict bodily harm is generally at risk of
actually doing so.) Thus, on the interpretation suggested by Mr. Schoenborn, threats of violence by
word or gesture would not be included in the concept of violence in s. 672.64(1)(a).
[50] Mr. Schoenborn submits that violence that would cause only psychological harm is insufficient
because the violence in s. 672.64(1)(a) must be capable of endangering the life or safety of another
person. Implicit in this submission is the argument that psychological harm does not pose a danger to
a persons life or safety.
[51] Mr. Schoenborn also points out that psychological harm is specifically mentioned in
ss. 672.64(1)(b) (the alternative route to a HRA designation whereby the brutal nature of the index
offence indicates a risk of grave physical or psychological harm) and 672.5401 (the codification of the
term significant threat for the purposes of s. 672.54(a) as a risk of serious physical or psychological
harm). It is submitted that the omission of psychological harm from the language of s. 672.64(1)(a) is
a clear indication that this provision is only concerned with physical harm.
[52] Finally, Mr. Schoenborn refers to the definition of serious personal injury offence (SPIO) in
s. 672.81(1.3)(a)(ii), which tracks the language used in s. 752 in defining the same term for the
purposes of the dangerous offender and long-term offender regime in Part XXIV of the Code. Under
these provisions, a SPIO is defined in part as an indictable offence involving conduct endangering or
likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological
damage upon another person (in s. 752 such an offence must also be punishable by ten or more
years imprisonment to qualify). Mr. Schoenborn submits that if conduct endangering a persons life or
safety included conduct causing psychological harm then there would be no need to refer separately
to the infliction of severe psychological damage in this definition of SPIO. Thus, he submits, there is a
conceptual difference between conduct that represents a danger to life or safety and conduct that
represents a risk of psychological harm, and the omission of the latter from the language of
s. 672.64(1)(a) suggests the provision is concerned only with the former.
[53] The Crown argues that violence in s. 672.64(1)(a) should be interpreted according to a harm
based definition that includes the infliction of psychological harm, arguing that this accords with
contemporary jurisprudence concerning the term violence, and pointing out that while s. 672.64(1)(a)
does not refer specifically to psychological damage, nor does it explicitly restrict its application to a
substantial likelihood of the actual or attempted infliction of physical harm.
[54] The interpretation of violence that could endanger the life or safety of another person requires
three separate determinations: (1) whether violence should be interpreted according to a force based
or harm based definition; (2) if violence is interpreted according to a harm based definition, whether
violence that could endanger the life or safety of another person should be interpreted so as to
include threats and the infliction of psychological harm; and (3) whether violence that could endanger
the life or safety of another person entails the risk of a particular level of force, physical harm, and/or
psychological harm. I will deal with these questions in turn.
[55] Violence is not a defined term in the Code. Its primary dictionary definition as a noun is the
quality of being violent, which adjective is in turn defined primarily as using or tending to use
aggressive physical force and involving physical force: C.O.E.D., s.v. violence and violent. While
this tends to support a force based definition of violence, the jurisprudence is clear that the ordinary
meaning of violence is defined in relation to its effects as well as the means by which it is employed:
see C.D. at paras. 28-30; Steele at paras. 42-44. In my view this accords with common usage of the
term violence in keeping with evolving social mores.
[56] As the analysis in C.D. and Steele makes clear, interpreting the meaning of violence in the
context of the Code and other legislation will depend in large measure on prior judicial consideration of
the term.
[57] In C.D., the Supreme Court of Canada grappled with the definition of violence in the context of
interpreting the term violent offence in s. 39(1)(a) of the Youth Criminal Justice Act, S.C. 2002, c. 1
[YCJA], which provides that a young person must not be committed to custody unless, among other
things, he or she has committed a violent offence. Bastarache J., writing for the majority at para. 53,
differentiated between definitions of violent offence that identified violence where force is exerted
(force based), and those that identified violence where harm is suffered (harm based). Ultimately the
Court rejected the force based interpretation of violence in that particular statutory context, favouring a
harm based interpretation whereby a violent offence meant an offence in the commission of which a
young person caused, attempted to cause, or threatened to cause bodily harm: C.D. at para. 87. The
meaning of bodily harm for the purposes of this interpretation would appear to be the same as the
definition of that term in s. 2 of the Code, which is any hurt or injury to a person that interferes with
the health or comfort of the person and that is more than merely transient or trifling in nature: see
C.D. at para. 20. At para. 85, Bastarache J. held that a definition of violent offence that included
threats of violence was preferable because it accorded with the commonly held view that a threat to
cause bodily harm is, at base, an act of violence, relying in part on R. v. McCraw, [1991] 3 S.C.R. 72
[McCraw]. Based on the Courts adoption of the aforementioned harm based definition of violence in
interpreting the meaning of violent offence in s. 39(1)(a), the custodial sentences imposed on the
appellants for the offences of arson to property and dangerous driving were found to have been
improper. Clearly much of the analysis in C.D. was specific to the particular statutory context of
sentencing under the YCJA. However, the general discussion of the concepts of force based and
harm based violence, and the cogent reasons for preferring the latter, provide useful guidance - in
particular, as discussed below, the Court in C.D. identified the fact that a force based definition of
violence might fail to capture some murders, attempted murders, and manslaughters as a fatal flaw
associated with such a definition.
[58] In Steele the Court was again tasked with interpreting the concept of violence, this time in
relation to one of the definitions of a SPIO under s. 752 of the Code, specifically its definition as an
indictable offence, punishable by ten or more years imprisonment, involving the use or attempted use
of violence against another person. The particular issue in the case was whether a robbery under
s. 343(a) of the Code that involved the threat but not the actual use of force qualified as an offence
involving the use or attempted use of violence against another person. Ultimately the Court adopted
the harm based definition of violence from C.D. and concluded that such a robbery did involve the use
of violence for the purposes of the relevant definition of a SPIO because bodily harm was threatened.
[59] Writing for the Court at para. 42, Wagner J. held:

42 The question of what constitutes violence is as old as the criminal law itself. It is a moral
question as much as a legal one, and no doubt society's answer to it has changed in tandem
with evolving social mores. I will not attempt -- nor am I required -- to answer it definitively.
However, in interpreting the words "use or attempted use of violence" in subpara. (a)(i) of the
definition of an SPIO, I must endeavour to ascertain their "plain meaning". In this regard, I am
aided by dictionary definitions as well as by judicial interpretations from a variety of contexts
involving both the Criminal Code and other legislation. I will explain a conflict that exists between
harm-based definitions of violence that focus on acts by which a person causes, attempts to
cause or threatens to cause harm, and force-based definitions that focus on the physical nature
of the act. Building upon this Court's reasoning in C.D. and subsequent cases, I conclude that
the prevailing definition of violence is a harm-based one.
[Emphasis added.]
[60] At paras. 46-50, Wagner J. endorsed the observation in C.D. that threats of bodily harm are
commonly considered to be violent acts, and noted that the harm based approach articulated in C.D.
draws additional support from several recent decisions rendered by this Court in a variety of contexts,
including those of the offence of uttering threats, the violent exception to freedom of expression, and
the offence of robbery, citing R. v. McRae, 2013 SCC 68; R. v. Khawaja, 2012 SCC 69; and C.D. At
para. 51 Wagner J. held:
51 This brief survey of judicial interpretations of the term "violence" suggests that the focus
is on the harm caused, attempted or threatened rather than on the force that was applied. I do
not suggest that the definition of violence must be a harm-based one in every case. Context will
be paramount. As I mention below (see para. 65), there may be situations in which the
presumption of consistent expression is clearly rebutted by other principles of interpretation and,
as a result, the intended meaning of violence may vary between statutes and even, in some
circumstances, within them: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008),
at p. 222. However, unless the context or the purpose of the statute suggests a different
approach, the prevailing definition of "violence" is a harm-based one that encompasses acts by
which a person causes, attempts to cause or threatens to cause harm.
[Emphasis added.]
[61] Based on these comments, I agree with the Crown that a harm based definition of violence for
the purposes of s. 672.64(1)(a) would be most consistent with contemporary jurisprudence
surrounding that term.
[62] Moreover, I am satisfied that the concept of violence in s. 672.64(1)(a) must be interpreted
according to a harm based rather than a force based approach based on the type of violence required
by the plain language of the provision itself. The violence with which s. 672.64(1)(a) is concerned must
be capable of endangering the life or safety of another person. As discussed at paras. 58-60 of C.D.,
the offences of murder, attempted murder, and manslaughter - offences that unquestionably involve
the endangerment of a persons life and that the vast majority of people would surely consider violent -
will not always require the actual or attempted application of physical force. Rather, the focus of the
provisions in the Code creating these offences is on the harm caused or attempted (i.e., death): C.D.
at para. 59. Indeed, it is possible that the actus reus for a culpable homicide, including murder, may in
some circumstances be satisfied by an omission rather than a positive act that results in a persons
death: C.D. at para. 60, citing R. v. Younger, 2004 MBCA 113. Thus, the adoption of a force based
definition of violence for the purposes of s. 672.64(1)(a) would result in the absurdity that certain types
of murder, attempted murder, and manslaughter would not be captured by the concept of violence
that could endanger the life or safety of another person. In order to avoid this result, violence for the
purposes of s. 672.64(1)(a) must be interpreted according to a harm based approach.
[63] That does not end the matter, however; the scope of the harm inherent in the expression
violence that could endanger the life or safety of another person, including whether that harm is only
physical or can also be psychological, must be determined with regard to the statutory context in
which it is used: Steele at para. 52, citing C.D. at para. 33.
[64] The harm based definition of violence adopted in C.D. and Steele encompasses both physical
and psychological harm and, as noted, includes threats of bodily harm: Steele at para. 45; C.D. at
para. 66. Wagner J. noted at para. 41 of Steele that the concept of violence in the definition of SPIO at
issue in that case did not entail an objectively minimum qualitative level of violence. The same is true
of the concept of violence at issue in C.D.; there is no requirement in s. 39(1)(a) of the YCJA that the
violence involved in the violent offence for which a young person has been convicted must rise to a
particular level. That is not true of s. 672.64(1)(a); the violence in this provision must be capable of
endangering the life or safety of another person. This raises the question of whether and to what
extent threats of violence and the infliction of psychological harm can be said to endanger a persons
safety or perhaps even life.
[65] I do not accept Mr. Schoenborns argument that mere threats of bodily harm or other acts that
result only in psychological damage cannot be said to endanger a persons life or safety. It is
noteworthy that the Code contemplates that a person may cause death by exactly these means.
Section 222(5)(d) creates a form of culpable homicide whereby a person causes the death of a child
or sick person by wilfully frightening such a person: s. 222(5)(d). Similarly, a person commits
culpable homicide where he or she causes a person, by threats, fear of violence, or deception, to do
anything that causes that persons death: s. 222(5)(c). In neither case can it be reasonably said that
death results from the infliction of physical harm; rather physical harm in the form of death results from
the infliction of psychological harm only. Clearly, then, threats and the infliction of psychological harm
can endanger a persons life or safety.
[66] Nor do I accept Mr. Schoenborns arguments about the significance of the lack of a specific
reference to psychological harm in s. 672.64(1)(a), as compared to ss. 672.64(1)(b), 674.5401,
672.81(1.3)(a)(ii), and the definition of SPIO in s. 752.
[67] With respect to the mention of psychological harm in s. 672.64(1)(b), a somewhat similar
argument was made in Steele. There the respondent (the accused at trial) argued that the words
conductinflicting or likely to inflict severe psychological damage in one definition of SPIO in s. 752
meant that the phrase use or attempted use of violence in another definition should be interpreted
narrowly to exclude threats of violence. For ease of reference I will reproduce the relevant parts of
s. 752:
serious personal injury offence means
(a) an indictable offence, other than high treason, treason, first degree murder or second
degree murder involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or
inflicting or likely to inflict severe psychological damage upon another person,
and for which the offender may be sentenced to imprisonment for ten years or more
[68] The respondent in Steele argued that if subpara. (a)(i) were interpreted broadly so as to include
threats of violence, it would apply to less serious instances the very conduct to which subpara. (a)(ii)
applies, thereby rendering the severe psychological damage portion of the definition redundant:
Steele at para. 55. Wagner J. rejected this argument, holding as follows at para. 56:
56 As a preliminary matter, there is no indication that the various parts of the definition of
an SPIO in s. 752 are mutually exclusive: see R. v. J.Y. (1996), 141 Sask. R. 132 (C.A.) at
para. 22. On the contrary, I can think of many scenarios in which an offence causing the harms
outlined in subpara. (a)(ii) would clearly also involve the use or attempted use of violence.
The fact that a proposed interpretation would bring some offences within the ambit of more than
one part of the definition in s. 752 should not, in itself, justify narrowing the definition to avoid
such overlaps.
[69] In my view the same reasoning applies to the inclusion of the words psychological harm in
s. 672.64(1)(b) but not s. 672.64(1)(a). There is nothing in s. 672.64, nor any other part of the HRA
regime, to indicate that the two routes to a HRA finding in ss. 672.64(1)(a) and (b) were intended to be
mutually exclusive of each other in the sense that if an accused was captured by one subsection he or
she could not also fall within the ambit of the other. If anything the opposite is true - as mentioned, the
basis for revoking a HRA finding under s. 672.84 is the conclusion, first by the Review Board and then
the court, that there is no substantial likelihood the accused will use violence that could endanger the
life or safety of another person. This applies whether the accused was found a HRA under
s. 672.64(1)(a) or (b), suggesting there must be considerable overlap in the criteria under each
subsection. Indeed, it would be extremely difficult to make sense of this feature of the HRA regime
unless the risk of grave physical or psychological harm in s. 672.64(1)(b) could also be characterized
as a substantial likelihood of using violence that could endanger a persons life or safety under
s. 672.64(1)(a). Otherwise, the failure to make a finding under s. 672.64(1)(a) would render otiose the
exercise of making a finding under s. 672.64(1)(b); the finding would simply be revoked on the first
review under s. 672.84. (The relationship between the provisions in ss. 672.64 and 672.84 will be
discussed further below in relation to the interpretation of the criteria in s. 672.64(1)(b).)
[70] Further, in my view the definition in s. 672.5401 of a significant threat to the safety of the
public, for the purpose of s. 672.54, as meaning either a risk of serious physical or psychological
harm, militates in favour of including the infliction of psychological harm in the concept of violence
that could endanger the life or safety of another person in s. 672.64(1)(a). If the prospect of
psychological harm represents a threat to public safety, what basis is there to conclude that it cannot
endanger the safety of another person? The inclusion of both physical and psychological harm in the
definition of significant risk in s. 672.5401 undermines rather than supports Mr. Schoenborns
submission on this point.
[71] Finally, the fact that the definitions of SPIO in ss. 672.81(1.3) and 752 appear to distinguish
between conduct endangering or likely to endanger the life or safety of another person and conduct
inflicting or likely to inflict severe psychological damage upon another person does not suggest that
the violence endangering a persons life or safety in s. 672.64(1)(a) should not include the infliction of
psychological harm. These provisions of the Code defining SPIO are conceptually and structurally
distinct from s. 672.64(1)(a). Crucially, the definition of SPIO in ss. 672.81(1.3) and 752 distinguishes
between the use or attempted use of violence in subpara. (a)(i), and conduct endangering or likely to
endanger life or safety, or inflicting or likely to inflict severe psychological damage on another person
in subpara. (a)(ii). As discussed in C.D. at para. 79 and Steele at paras. 58-59, these different
subparagraphs distinguish between the use of violence, which requires a particular intention behind
an offence, and dangerous conduct, which accounts only for the effect of an offence and therefore
includes offences involving negligence. In s. 672.64(1)(a) there is no such distinction; rather there
must be a substantial likelihood of violence (which requires intent) that poses a certain type of danger
(the required effect). Because s. 672.64(1)(a) requires both violent intent and dangerous effects,
rather than one or the other, the interpretation of what constitutes a danger to life or safety may be
understood differently here than in ss. 672.81(1.3) and 752. Specifically, this type of danger must be
interpreted having regard to the violence on which it is based. I have discussed how the Code itself
contemplates that a person might cause another persons death via the infliction of only psychological
harm. It follows that the exclusion of conduct causing only psychological harm from the concept of
violence that could endanger the life or safety of another person in s. 672.64(1)(a) would result in an
unacceptable absurdity; culpable homicide under ss. 222(5)(c) and (d) would not qualify. More
generally, such an interpretation would not account for threats and other conduct causing
psychological harm that are widely understood to be violent and to affect peoples safety. I have
already discussed the prevailing definition of violence from C.D. and Steele, and how it includes
threats and the infliction of psychological harm. For these reasons, it is my view that violence that
could endanger the life or safety of another person in s. 672.64(1)(a) must be interpreted differently
than conduct endangering or likely to endanger the life or safety of another person in ss. 672.81(1.3)
and 752, and in particular must be interpreted to include threats and the infliction of psychological
harm.
[72] The context and purpose of the HRA regime do not suggest an approach other than to adopt
the prevailing definition of violence as a harm based concept that encompasses acts by which a
person causes, attempts to cause, or threatens to cause bodily harm. I am therefore satisfied that the
concept of violence in s. 672.64(1)(a) must be interpreted using a harm based approach that
includes the threat of bodily harm and the infliction of psychological harm. Section 672.64(1)(a)
therefore requires the court to be satisfied that there is a high degree of probability that the accused
will cause, attempt to cause, or threaten to cause bodily harm.
[73] A question remains, however, as to the severity of the potential harm required for a HRA finding
under s. 672.64(1)(a). In other words, what level of harm must be involved in the danger the accused
is substantially likely to cause by using violence as defined above? Is it the same or greater than the
potential harm involved in a significant threat to the safety of the public in s. 672.54? This question
applies to violence resulting in both physical and psychological harm, and must be answered with
regard to the specific statutory context of s. 672.64(1)(a). Indeed, the language of s. 672.64(1)(a)
provides that the violence the accused is substantially likely to use must be capable of endangering
the life or safety of another person. It is the meaning of this phrase - endanger the life or safety of
another person - in this statutory context which must be determined.
[74] As shown above, the definitions of SPIO in ss. 672.81(1.3) and 752 contain substantially the
same phrase, referring to conduct endangering or likely to endanger the life or safety of another
person. Indeed, the severity of the potential harm involved in these sections of the Code at first
appears to be greater than that suggested by the language of s. 672.64(1)(a), which requires only that
a persons life or safety could be endangered, rather than requiring that a persons life or safety
actually be endangered, or at least that this be likely (these distinctions are perhaps not particularly
important given the concept of endangerment already involves an element of chance or likelihood in
that it only entails exposure to risk rather than actual harm: see R. v. Goulet, 2011 ABCA 230 at
para. 18 and R. v. Griffin, 2011 NSCA 103 at para. 17). I note that our Court of Appeal found it
unnecessary to address the meaning of endangering or likely to endanger the life or safety of another
person in s. 752 in R. v. Armstrong, 2014 BCCA 174 [Armstrong] at para. 26, because the question
was moot in the circumstances of that case. Other courts have generally interpreted the phrase rather
broadly. However, as I will discuss below, I conclude that the broad interpretation of the meaning of
endangering or likely to endanger the life or safety of another person in s. 752 should not be adopted
for the purposes of determining the severity of the potential harm required for a HRA finding under
s. 672.64(1)(a). Instead, as I will explain, in my view the severity of the potential harm involved in
s. 672.64(1)(a) must be the same or greater as that involved in a significant threat to public safety in
s. 672.54, as defined in s. 672.5401.
[75] First I consider the ordinary and grammatical sense of the relevant words in the phrase. The
verb endanger means to place in danger, which noun is in turn defined as liability or exposure to
harm, and a thing that causes or is likely to cause harm: C.O.E.D., s.v. endanger and danger.
Harm is defined as hurt, damage: C.O.E.D., s.v. harm. The noun safety means the condition of
being safe; freedom from danger or risk, while the adjective safe means free of danger or injury:
C.O.E.D., s.v. safety and safe.
[76] These definitions suggest a relatively broad range of potential harm encompassed by the
concept of violence that could endanger the life or safety of another person. It might be thought,
based only on the plain and ordinary meaning of the words used, that exposure to any level of harm,
as defined above, constitutes endangerment of life or safety.
[77] Indeed, turning to the judicial treatment of the same language in the definition of SPIO in
s. 752, in R. v. Lebar, 2010 ONCA 220 [Lebar] at para. 49, Epstein J.A. noted that the far-reaching
meaning of the word safety suggests Parliament intended to cover a very expansive range of
dangerous behaviour within this term. In R. v. Goforth, 2005 SKCA 12, leave to appeal refd [2005]
SCCA No. 456 [Goforth], the court dealt with the issue of whether a particular degree of violence or
endangerment was required before an offence could amount to a SPIO under s. 752, and ultimately
concluded that it was not. As summarized by Epstein J.A. at para. 63 of Lebar, the court in Goforth
found that the words of the section do not invite a qualitative assessment of the degree of violence or
endangerment in the predicate offence. Epstein J.A. approved of this approach: Lebar at para. 65.
This court has also found Goforth to be persuasive on the question of whether the court must engage
in a qualitative assessment of the seriousness of the violence involved in the predicate SPIO on a
dangerous offender application: see R. v. D.J.B., 2012 BCSC 1391 at paras. 23-37. However, the
markedly different statutory context in which the term SPIO operates in s. 752 makes this conclusion
inapplicable for the purposes of s. 672.64(1)(a).
[78] As discussed at paras. 25-38 of Goforth, the legislative context in which the term SPIO
operates in s. 752 is that it is a precondition to the potential availability of a further statutory option that
engages a more fulsome and forward-looking assessment. That option is the dangerous offender
application, which requires a consideration of the nature and extent of the risk of future harm posed by
the offender: see Goforth at para. 37. The finding that the offender was convicted of a SPIO is merely
a precondition to the availability of that option; it is not what Cameron J.A., writing for the court in
Goforth, called the hallmark of the scheme - that is, a dangerous offender designation cannot be
made on the basis of a SPIO conviction only, or even primarily, but rather depends on the criteria set
out in s. 753(1). The finding of a conviction for a SPIO simply enables the court to remand the offender
for an assessment under s. 752.1, after which the dangerous offender application may be heard.
Although the finding of a SPIO conviction continues to function as a prerequisite to a dangerous

offender finding under s. 753(1)(a), the substantive basis for a dangerous offender designation is the
establishment of one of the criteria in s. 753(1)(a)(i) to (iii) or (b). The finding of a SPIO conviction is
therefore a touchstone but not a cornerstone on the path to a dangerous offender designation:
Goforth at para. 80. As a result, the court in Goforth concluded at para. 51 that the requirement of a
particular degree of violence or endangerment in the definition of SPIO in s. 752 would frustrate the
object of the dangerous offender regime, and Parliaments intention, by reducing the number of
offenders for whom a dangerous offender designation would be possible based on the degree of
violence or endangerment involved in the offence committed by the offender - the predicate offence -
rather than on the risk the offender poses to public safety in the future based on the offenders past
and present behaviour.
[79] Conversely, in s. 672.64(1)(a), the inquiry into whether the accused is substantially likely to use
violence that could endanger the life or safety of another person is the cornerstone or hallmark of the
scheme, involving an assessment of the risk the NCR accused poses to public safety in the future
based on his or her past and present behaviour. It operates in the context of a consideration of the
nature and extent of the risk of harm posed by the offender in the future as the substantive basis for a
HRA finding, as opposed to the characterization of the index offence as a precondition to engaging
that inquiry. Thus, it is not appropriate to adopt the expansive definition of conduct endangering or
likely to endanger the life or safety of another person under s. 752 when considering the scope of
violence that could endanger the life or safety of another person in s. 672.64(1)(a). Here we are
concerned with the substance of the application, which is to determine whether the NCR accused
poses an unacceptable danger to society such that he or she should be subject to the increased
liberty deprivation that follows a HRA finding.
[80] As a result of this particular statutory context, the meaning of endanger the life or safety of
another person must be construed more narrowly in s. 672.64(1)(a) than elsewhere in the Code, so
that only those who present a heightened threat to public safety are captured by the HRA regime. It is
obvious that a HRA finding requires an elevated threat beyond the significant threat required to
maintain Review Board jurisdiction under s. 672.54. The increased threat may relate to the likelihood
or the severity of the potential harm, or both. I have already determined that s. 672.64(1)(a) involves a
more likely or probable threat of harm. As noted in Winko at para. 57, the threat required to maintain
Review Board jurisdiction under s. 672.54 must be significant both in the sense that there must be a
real risk of physical or psychological harm occurring to individuals in the community and in the sense
that this potential harm must be serious a high risk of trivial harm will not meet the threshold. Thus,
while s. 672.64(1)(a) entails an elevated degree of probability or likelihood of harm, it cannot also
involve a reduction in the severity of the potential harm below that which is involved in a significant
threat for the purpose of s. 672.54, which must be serious in the sense of going beyond the merely
trivial or annoying: Winko at para. 62. To hold otherwise would frustrate the object of the legislation by
potentially capturing those who do not pose an unacceptably high risk to members of the public, and
would also fail to reflect the scheme of the legislation by not clearly or meaningfully distinguishing
between the basis for a HRA finding as opposed to a finding that a NCR accused should remain under
the jurisdiction of the Review Board pursuant to s. 672.54(b) or (c).
[81] I am therefore of the view that s. 672.64(1)(a) requires a finding that there is a greater likelihood
the accused will cause harm to members of the public than is necessary to establish a significant
threat in s. 672.54, although the severity of the potential harm is the same or greater; in other words,
at least a serious physical or psychological harm as set out in s. 672.5401. This interpretation is
consistent with the scheme and object of the legislation - to protect the public from those NCR
accused who pose an unacceptable risk to the public, over and above what is necessary for detention
in a hospital under s. 672.54(c) - and with the actual words used in the provision, since the threat of
serious physical or psychological harm clearly represents a danger to a persons life or safety.
[82] To combine the previous two points of statutory interpretation, then, and provide a summary of
s. 672.64(1)(a), this branch of the HRA test requires a finding that there is a high degree of probability
the NCR accused will cause, attempt to cause, or threaten to cause bodily harm, and in so doing
expose another person to serious physical or psychological harm. I turn now to an interpretation of the
relevant terms in s. 672.64(1)(b).
[83] Section 672.64(1)(b) is the alternative route to a HRA finding for an accused found to be
NCRMD for a serious personal injury offence committed at the age of 18 or older. It requires the court
to be of the opinion that the acts that constitute the offence for which the accused was found NCRMD
were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another
person.
[84] The first point of statutory interpretation under this provision is the meaning of the word brutal
in considering the nature of the acts constituting the offence.
[85] The adjective brutal means savagely or coarsely cruel and harsh, merciless: C.O.E.D., s.v.
brutal.
[86] In terms of the scheme and object of the HRA regime, the idea in s. 672.64(1)(b) appears to be
that some offences resulting in a verdict of NCRMD are so severe or egregious that the prospect of
the accused repeating the same type of behaviour in the future raises a risk of grave physical or
psychological harm. Thus the concept of brutality in this provision should relate to the degree of harm,
either physical or psychological, suffered by the victim of the index offence.
[87] Once again this language appears in the dangerous offender regime in Part XXIV of the Code,
specifically s. 753(1)(a)(iii), which requires the court to find an offender to be a dangerous offender if
satisfied, among other things, that the offender constitutes a threat based on evidence establishing
any behaviour by the offender, associated with the offence for which he or she has been convicted,
that is of such a brutal nature as to compel the conclusion that the offenders behaviour in the future is
unlikely to be inhibited by normal standards of behavioural restraint. In this provision, as in

s. 672.64(1)(b), the concern is whether the brutality associated with past conduct indicates a risk of
future dangerousness.
[88] The meaning of behaviour of a brutal nature in what is now s. 753(1)(a)(iii) was considered in
R. v. Langevin, [1984] O.J. No. 3159 (C.A.). At para. 34 of that decision, Lacourciere J.A., writing for
the court, held that [c]onduct which is coarse, savage and cruel and which is capable of inflicting
severe psychological damage on the victim is sufficiently brutal to meet the test.
[89] More recently, in R. v. Dorfer, 2013 BCCA 223 at para. 49, our Court of Appeal endorsed the
discussion of the term brutal in s. 753(1)(a)(iii) from the case of R. v. Campbell, [2004] O.J. No. 2151
(S.C.) [Campbell]:
[49] Hill J. [the judge in Campbell] concluded that a review of the authorities demonstrated a
settled approach to the interpretation of brutal as describing cruel, savage, inhuman conduct:
[56] Depending on case-specific circumstances, many of the cases have
involved one or more of the following features: extreme violence inflicting
horrendous physical injuries, causing continuing emotional distress, sadistic or
inhuman behaviour, gratuitous or unnecessary violence, torture or
degrading conduct, prolonged violence, multiple acts of violence, unprovoked
violence, leaving the victim semi-conscious or unconscious or persisting in
violence despite the victim being in such a state, and attacks on vulnerable
victims such as an elderly person.
[90] In my view the approach laid out in Campbell is equally appropriate in interpreting the term
brutal as it relates to the nature of the acts constituting the index offence in s. 672.64(1)(b). The
concern is whether the brutal nature of the index offences indicates a risk of grave physical or
psychological harm in the event that the NCR accused reoffends, and this type of harm is exactly what
is contemplated in the features listed above.
(4) Risk in s. 672.64(1)(b)
[91] The next point of statutory interpretation in relation to s. 672.64(1)(b) is the meaning of the term
risk - specifically the level of risk involved, in the sense of the degree of likelihood or probability that
the risk of grave physical or psychological harm will actually materialize.
[92] The noun risk is defined as a chance or possibility of danger, loss, injury, or other adverse
consequences and a person or thing causing a risk or regarded in relation to risk: C.O.E.D., s.v.
risk.
[93] This suggests a relatively moderate degree of probability; according to its dictionary definition,
a risk involves only a chance or possibility of harm. Of course, the term risk appears elsewhere in
Part XX.1, specifically in the definition of significant threat to the safety of the public in s. 672.5401
as a risk of serious physical or psychological harm to members of the public The law is clear that
the risk involved in this section must be real and supported by evidence, not speculative: Winko at
para. 57; Calles v. British Columbia (Director of Adult Forensic Psychiatric Services), 2016 BCCA 318
at para. 15. The use of the word risk in both ss. 672.5401 and 672.64(1)(b) might suggest an
equivalent degree of probability that the potential harm will materialize.
[94] The difficulty with this interpretation, as alluded to earlier, is the HRA review provisions in
s. 672.84, which provide that the Review Board must refer a HRA finding to the Superior Court for
review if it is satisfied that there is not a substantial likelihood that the accused - whether found to be
a high-risk accused under paragraph 672.64(1)(a) or (b) - will use violence that could endanger the life
or safety of another person: s. 672.84(1). Similarly, the court must revoke the HRA finding and make
a disposition under any of paragraphs 672.54(a) to (c) only if satisfied that there is not a substantial
likelihood that the accused will use violence that could endanger the life or safety of another person:
s. 672.84(3). The review provisions in s. 672.84 do not mention the standard of a risk of grave
physical or psychological harm in s. 672.64(1)(b). It is not possible for the Review Board to refer a
finding to the court, or for the court to revoke a HRA finding, based on there no longer being such a
risk in a case where a NCR accused was found to be a HRA under s. 672.64(1)(b). Instead, the
existence of a substantial likelihood the accused will use violence that could endanger the life or
safety of another person - the threat articulated in s. 672.64(1)(a) - is explicitly stated to be the
standard on a review of a HRA finding made under either s. 672.64(1)(a) or (b).
[95] In my view, s. 672.64(1)(b) must be interpreted in light of the review provisions in s. 672.84.
Parliament drafted s. 672.84(1) and (3) such that the only basis for revoking a HRA finding is for the
Review Board, and then the court, to be satisfied that there is not a substantial likelihood the accused
will use violence that could endanger the life or safety of another person. That is true whether the
accused was found to be a HRA under s. 672.64(1)(a) or (b). Therefore, the only way for an accused
found to be a HRA under s. 672.64(1)(b) to have his or her designation revoked is to satisfy the
Review Board and then the court that he or she does not meet the criteria for a HRA finding under s.
672.64(1)(a) - that is, he or she is not substantially likely to use violence that could endanger the life or
safety of another person. In order to give effect to these review provisions, the risk in s. 672.64(1)(b)
must be interpreted as involving the same degree of probability as the substantial likelihood in s.
672.64(1)(a). Otherwise, if s. 672.64(1)(b) involved a lower degree of probability, an accused found to
be a HRA under s. 672.64(1)(b) and not s. 672.64(1)(a) would be immediately eligible to have the
HRA finding revoked, rendering s. 672.64(1)(b) essentially inoperative. Put differently, the clear
wording of the review provisions in s. 672.84 seems to require an interpretation of s. 672.64(1)
whereby a risk of grave physical or psychological harm in s. 674.64(1)(b) includes, by definition, a
substantial likelihood the accused will use violence that could endanger the life or safety of another
person in s. 672.64(1)(b). If not, then a NCR accused found to be a HRA under s. 672.64(1)(b) but not
(a) would immediately be entitled to have the finding revoked. This result renders s. 672.64(1)(b) futile.
In order to give effect to the review provisions in s. 672.84, the risk in s. 672.64(1)(b) must involve
the same heightened degree of probability as the substantial likelihood in s. 672.64(1)(a). While the
use of violence is not specifically mentioned in s. 672.64(1)(b), its inclusion in the criteria under that
section is necessary for the same reason that the risk in the section must be seen to involve the
same degree of probability as s. 672.64(1)(a): failure to do so would render a finding under the latter
paragraph and not the former pointless. Moreover, because the risk of grave physical or psychological
harm is tied to the brutal nature of the index offence, and because brutal nature has been interpreted
according to the discussion in Campbell detailing intentional, violent behaviour, it is logical that the risk
of harm in s. 672.64(1)(b) should relate to intentional violence and not negligent conduct.
[96] I note that the Crowns position with respect to this issue is that s. 672.64(1)(b) requires a
degree of probability that is proportional to the increased severity of the potential harm (discussed in
the next section), such that s. 672.64(1)(b) requires a serious probability of serious harm. I accept
that submission, for the reasons given above. Therefore, I conclude that s. 672.64(1)(b) requires the
court to find that the brutality of the index offence, considered along with and in light of the factors in
s. 672.64(2), indicates that there is a high degree of probability that the accused will use violence that
will cause grave physical or psychological harm to another person. I turn now to the meaning of grave
physical or psychological harm.
[97] There can be no dispute that the grave physical or psychological harm in this paragraph
involves an increased severity of harm beyond that required for a significant threat to the safety of the
public and conduct endangering the life or safety of another person in ss. 672.5401 and 672.64(1)
(a). The adjective grave means, in relation to danger, extremely serious or threatening: C.O.E.D.,
s.v. grave. An interpretation of grave physical or psychological harm that involves an elevated
degree of potential harm reflects Parliaments objective of protecting the public from those accused
who pose a heightened threat to public safety, and with the legislative scheme whereby such
individuals are identified by reference to the criteria for dangerousness set out in s. 672.64(1)(a) and
(b). This context, and the use of the word grave rather than serious as in s. 672.5401, compel an
interpretation that involves a greater severity of potential harm than necessary to maintain Review
Board jurisdiction under s. 672.54. Further, it is logical that the severity of the potential harm should
reflect the brutal nature of the index offence, since that brutality is what indicates the risk of grave
physical or psychological harm in this paragraph.
[98] The Crown submits that the harm must be significant, and argues the requisite threshold is akin
to the meaning of serious bodily harm set by the Supreme Court of Canada in McCraw: that is, any
hurt or injury, whether physical or psychological, that interferes in a substantial way with the physical
or psychological integrity, health or well-being of the complainant. I accept that this language
approximates the degree of the potential harm that is required in s. 672.64(1)(b). This interpretation of
grave physical or psychological harm represents a conceptually clear step up from the level of harm
required for a significant threat to the safety of the public. Indeed, the level of harm involved there, as
set out in s. 672.5401, is quite similar to the level of harm involved in the definition of bodily harm
which the Court in McCraw recognized had to be lower than the serious bodily harm it sought to
interpret: see paras. 17-23. As discussed above, the potential harm in a significant threat to the safety
of the public must be serious in the sense of being more than trivial or annoying, whereas the
standard for bodily harm in McCraw was interference with the health or comfort of the complainant
that was more than merely transient or trifling in nature. The standard of substantial interference with
physical or psychological integrity, health, or well-being thus gives meaningful effect to the plain and
ordinary meaning of the word grave as a modifier of the physical or psychological harm of which
there must be a risk in s. 672.64(1)(b), and is consistent with the scheme and object of the legislation
in that it sets an intelligible standard by which to identify NCR accused who pose a heightened and
unacceptable threat to members of the public by virtue of the more serious type of harm they are likely
to cause.
[99] As indicated in McCraw at para. 21, the standard of substantial interference with physical or
psychological integrity, health, or well-being does not require the same degree of physical harm as an
aggravated assault in s. 268 of the Code - that is, wounding, maiming, disfiguring, or endangering life.
That is true of grave physical harm in s. 672.64(1)(b) as well. With respect to the degree of potential
psychological harm required, I would adopt the comments of Bennett J.A. in Armstrong at para. 53
where, in interpreting the meaning of severe psychological damage in the definition of SPIO in
s. 752, she held that it was not necessary for the complainant to be debilitated or crippled by fear or
terror. Rather, psychological harm is severe where it is serious and prolonged, and significantly
affects the victims day-to-day activities. In my view this distinction also applies to the concept of
grave psychological harm in s. 672.64(1)(b). Thus, whether the court is considering the potential for
grave physical or psychological harm in s. 672.64(1)(b) or both, the question is not whether the
potential harm is on the highest order of magnitude. It must, however, be decidedly more serious than
the beyond merely trivial or annoying standard of serious physical or psychological harm standard
in s. 672.5401.
[100] To summarize, then, the inquiry in s. 672.64(1)(b) is whether, having regard to the brutality of
the index offence, considered in light of and along with the factors in s. 672.64(2), there is a high
degree of probability the accused will use violence that will result in grave physical or psychological
harm that interferes in a substantial way with the physical or psychological integrity, health or well-
being of the complainant.
(6) Pattern of repetitive behaviour of which the offence forms a part in

s. 672.64(2)(b)
[101] As stated earlier, section 672.64(2)(b) requires the court to consider whether the index offence
forms a part of a pattern of repetitive behaviour in deciding whether to make a HRA finding. This factor
corresponds to the summary of the duties of a court or Review Board making a disposition under
s. 672.54 of the Code found at para. 62 of Winko, in which McLachlin J. wrote that:
...
threat to public safety.
[102] This raises the question of what constitutes a pattern of repetitive behaviour in s. 672.64(2)
(b).
[103] The noun pattern, as it is used in this context, means a regular or logical form, order, or
arrangement of parts: C.O.E.D., s.v. pattern. The adjective repetitive means characterized by
repetition, which in turn means the act or an instance of repeating or being repeated: C.O.E.D., s.v.
repetitive and repetition. The verb repeat means say or do over again and recur; appear again,
perhaps several times: C.O.E.D., s.v. repeat. Thus the ordinary and grammatical sense of a pattern
of repetitive behaviour of which the offence forms a part is that there must be a regular or logical form
or order in the accuseds behaviour, done over again or recurring, perhaps several times, and
involving the index offence as a component part.
[104] In terms of this factors place within the Code, and particularly its relationship to the scheme
and object of the HRA regime, it is clear that Parliament intended the courts to consider whether the
index offence was linked to an identifiable and recurring pattern of behaviour so as to indicate a risk of
future dangerousness resulting from the anticipated continuation of that behaviour, following the logic
in the excerpt from Winko above.
[105] The language of a pattern of repetitive behaviour of which the offence forms a part is found in
the dangerous offender regime in Part XXIV of the Code, specifically in s. 753(1)(a)(i), which requires
the court to find an offender to be a dangerous offender if satisfied, among other things, that the
predicate offence formed a part of a pattern of repetitive behaviour showing a failure by the offender to
restrain his or her behaviour, and a future likelihood that the offender will cause death or injury or inflict
severe psychological damage on other persons as a result of the persistence of that failure.
[106] Clearly, the pattern of repetitive behaviour in s. 753(1)(a)(i) is more narrowly defined than the
one in s. 672.64(2)(b); it requires not only that there be a pattern of repetitive behaviour of which the
predicate offence forms a part, but that this pattern shows the offenders failure to restrain his or her
behaviour and a likelihood of causing death or injury to other persons, or inflicting severe
psychological damage on other persons, through the same failure in the future. However, statutory
interpretation of s. 753(1)(a)(i) at the appellate level has revealed an approach whereby the courts
must first determine whether a pattern of repetitive behaviour is established, and then go on to
determine whether the additional criteria in s. 753(1)(a)(i) regarding lack of restraint and future risk are
also established. Moreover, the purposes underlying the identification of a pattern s. 753(1)(a)(i) and
s. 672.64(2)(b) are quite similar, in that they are both fundamentally concerned with identifying future
danger or risk based on an individuals past behaviour. Section 753(1)(a)(i) simply collapses this
fundamental inquiry into one subsection, albeit with three discrete criteria, whereas the pattern in
s. 672.64(2)(b) is one of a number of relevant factors the court must consider in assessing the NCR
accuseds level of future dangerousness under s. 672.64(1). In both sections, the reason for searching
for a pattern of repetitive behaviour is to identify whether that pattern is likely to persist, creating a
threat to public safety. In my view, the guidance in the authorities regarding the requirements of a
pattern of repetitive behaviour under s. 753(1)(a)(i) is therefore relevant and helpful in determining
what constitutes a pattern of repetitive behaviour under s. 672.64(2)(b).
[107] Our Court of Appeal reviewed these requirements in the recent case of R. v. Walsh, 2017
BCCA 195 [Walsh]. The issue in Walsh, over which the court was divided, was the degree of similarity
required between events said to constitute a pattern of repetitive behaviour where the number of
events is small (in Walsh, the number was two). In the majority decision, which determined that there
must be a remarkable or very high degree of similarity in order to draw a pattern from so few incidents,
Bennett J.A. reviewed several cases dealing with the legal requirement for a pattern of repetitive
behaviour in s. 753(1)(a)(i). Two of those cases, R. v. Dow, 1999 BCCA 177 [Dow] and R. v. Neve,
1999 ABCA 206 [Neve], are of particular assistance in determining what is required to establish this
criterion.
[108] Lambert J.A., writing for the court in Dow, held at paras. 21-24 that the first element under what
is now s. 753(1)(a)(i) is that there must be a pattern of repetitive behaviour revealed in the offences
and that the pattern be present in the offence which gave rise to the dangerous offender proceeding. I
note that this description of the element essentially encapsulates the factor contained in s. 672.64(2)
(b), except that the words dangerous offender proceeding would be replaced by high-risk accused
application. What is required in s. 672.64(2)(b) is a consideration of whether there is a pattern or
repetitive behaviour and, if so, whether that pattern is present in the offence giving rise to the HRA
proceeding. Lambert J.A. went on to hold at para. 25 that:
it is the very essence of a pattern that there be a number of significant relevant similarities
between each example of the pattern that is being considered, but that, at the same time, there
may be differences between each example, some of them quite distinctive, so long as the
differences leave the key significant relevant elements of the pattern in place. That is, after all,
what is meant by a patternThe aspects of the object [or behaviour] which are relevant to a
description of the pattern must all be similar in their essential characteristics. But other aspects
of the items, which are not essential to a description of the relevant pattern itself, may be
markedly different from one example to another.
[Emphasis added.]
[109] At para. 27, Lambert J.A. held that the pattern of repetitive behaviour, and the other elements
under s. 753(1)(a)(i), should be described at a level of generality which gives individuality to the
pattern, but beyond that it is not necessary that all of the parts of the most recent offence must be like
all parts of the earlier offences, though further similarities may add vividness to the pattern. In that
particular case, the details of which I will not review here, Lambert J.A. held at para. 26 that it was
sufficient that all the victims were female and were violently assaulted in generally similar
circumstances.
[110] In Neve, the Alberta Court of Appeal confirmed at para. 107 that the first two criteria under
s. 753(1)(a)(i) are (1) the establishment of a pattern of repetitive behaviour, (2) of which the predicate
offence forms a part. At para. 109, the court held that the type of past behaviour encompassed by
these sections is criminal behaviour since the predicate offence, a criminal one by definition, must
form part of the pattern of conduct.
[111] At para. 111, the court found that:

repetitive behaviour can be established on two different bases The first is where there are
similarities in terms of the kind of offences; the second where the offences themselves are not
similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the
victims. Either will do. Thus, the mere fact that an offender commits a variety of crimes does not
mean that no pattern exists. There is no requirement that the past criminal actions all be of the
same or similar form, order or arrangement; though if this has occurred, it may well suffice.
[112] At para. 113 the court continued:

evidence of one episode of violence or aggression will not suffice This does not mean that it
will always be necessary that the offender have a lengthy history of violence or aggression. To
the contrary. Depending on the facts, a pattern sufficient to form the basis for predicting future
behaviour which threatens others may be found on very few such incidents Generally,
however, in order to meet the requirements of a pattern, the fewer the incidents, the more similar
they must be We do not suggest that the offences must be of the same kind, that is, for
example, a number of robberies. Similarity, as noted, can be found not only in the types of
offences but also in the degree of violence or aggression threatened or inflicted on the victims
[113] At para. 118, the court underscored the significance of the context in which the previous
behaviour occurred, including its significance to the identification of a pattern of repetitive behaviour:
the context in which an offender committed past criminal conduct will be relevant to this part of
the analysis. Without understanding that context, it would not be possible for a judge to make an
informed, reliable assessment on whether the offenders past behaviour will be likely to lead to
harm in the future. After all, whether something is likely to be repeated in the future is linked not
only to what happened in the past but why it happened. This being so, it will be evident that if the
analysis of past behaviour is undertaken without reference to the surrounding circumstances,
this can lead to an undermining of a judges conclusion on two different levels - first, in terms of
assessing which past conduct goes on the pattern scale; and second, in assessing the likelihood
of that behaviour continuing in the future as a result of the offenders failure to restrain
[Emphasis added.]
[114] Neve was discussed at length in the recent decision of R. v. Shea, 2017 NSCA 43 [Shea]. In
that case, Bourgeois J.A., writing for the majority at paras. 125-128, held that, contrary to the
application judges apparent interpretation of Neve, a pattern of repetitive behaviour in s. 753(1)(a)(i)
does not require that the past conduct be objectively serious, or that there be comparative
seriousness between the predicate offence and the past conduct. She relied in part on the following
words of Karakatsanis J. (as she then was) in R. v. Tremblay, 2010 ONSC 486 [Tremblay] at
paras. 97-98:
[97] There is no requirement that the past conduct that makes up a pattern involve objectively
serious offences, offences that are more or less serious, or even that they be serious personal
injury offences: R. v. Currie [[1997] 2 S.C.R. 260] at paras. 24-26; R. v. Newman, [1994] N.J.
No. 54 (C.A.) at para. 79. Even two incidents with similarities are sufficient to form a pattern: R.
v. Langevin [(1984), 45 O.R. (2d) 705 (C.A.)] at para. 29.
[98] To determine whether there is a pattern sufficient to predict future conduct, a trial judge
may consider evidence of:
(i) what type of conduct was involved,
(ii) who, generally, the victims were, and
(iii) what motivated the offender to commit the offences.
[]
[115] I accept that the same is true of a pattern of repetitive behaviour in s. 672.64(2)(b); there is no
requirement of objective seriousness or a comparative level of seriousness between the behaviour in
the pattern. Rather, the objective level of seriousness of the past behaviour and the index offence are
among the many factors the court can consider in determining whether the types of conduct involved
in the various incidents alleged to comprise a pattern are sufficiently similar to be considered as such.
[116] The majority decision in Shea also considered the discussion in Neve about the context
surrounding past conduct. The application judge in Shea had considered the institutional setting of the
offenders past offending behaviour to be important to the pattern analysis. At para. 131,
Bourgeois J.A. indicated that in her view the application judge relied on this factor as a way of
mitigating the offenders behaviour, and injecting into the analysis a consideration of his moral
blameworthiness, rather than using context as a means of determining whether similarity existed
among the various behaviours, or whether it reflected on risk. At paras. 132-133, Bourgeois J.A. held:
[132] With respect, the application judges contextual approach was erroneous. On its face,
s. 753(1) does not require the injection of context as used by the application judge into the
determination of what behaviours may or may not properly fall within a pattern of repetitive
behaviour or a pattern of persistent aggressive behaviour.
[133] There are many contexts in which problematic (and sometimes criminal) behaviour is
commonwith youthful offenders; with those living in poverty; with those suffering from addiction
or other mental health difficulties; and with those in historically marginalized groups, to name but
a few. The dangerous offender caselaw is replete with pattern analysis which finds as part of a
pattern of behaviour youthful conduct, behaviour under the influence of drugs or alcohol,
behaviour prompted by the effects of poverty and behaviour while incarcerated. Other than
Neve, I have been unable to find any clear support for the use of the circumstances surrounding
behaviour as a means of excluding it from a pattern analysis. These contexts may be
explanations for criminal choices, but they are not justifications or legal excuses.
[Emphasis in original.]
[117] I do not think these final comments are applicable to s. 672.64(2)(b). The fact of a NCRMD
verdict means the accuseds mental illness is not only an explanation but a legal excuse for his or her
criminal behaviour. The court in Shea appeared to accept that context may be used as a means of
determining whether similarities exist among incidents in an alleged pattern, and whether this reflects
on risk. Also, as noted in Tremblay, the motivations behind the incidents in the pattern are relevant to
the analysis. Clearly the NCR accuseds mental disorder will in many cases have a major impact on
the motivations behind the index offence, because it will have rendered the accused incapable of
appreciating the nature and quality of the offending behaviour or of knowing that it was wrong. The
NCR accuseds mental illness is therefore a critical part of the context surrounding the index offence,
and is more than merely an explanation for criminal choices. The court should therefore consider
whether the same context applied to the previous behaviour in the alleged pattern. This can be a
means of excluding behaviour from the pattern (if the accuseds mental state was different at the time
of past behaviour than it was at the time of the offence for which the accused was found NCRMD) or
including it (if the accuseds mental state was the same or similar). This is not to suggest that the
presence or absence of symptoms of mental illness during various incidents in an alleged pattern will
be determinative; it is simply a relevant factor to consider in the pattern analysis. It may be that,
despite changes in the accuseds mental state between various incidents in an alleged pattern, the
incidents are nevertheless sufficiently similar in respect of other relevant, essential characteristics that
a pattern can be identified.
[118] After reviewing these authorities regarding the identification of a pattern of repetitive behaviour
in the dangerous offender context, I have concluded that the following principles should guide the
consideration of whether there is such a pattern in s. 672.64(2)(b). First, the pattern should relate to
behaviour that is criminal rather than merely antisocial in nature, since the index offence will by
definition involve criminal conduct and must form part of the pattern of behaviour being considered.
There must be significant similarities between each example in the alleged pattern of behaviour in
respect of their essential characteristics, since that is implicit in the definition of a pattern. In general,
the fewer the number of incidents in the alleged pattern, the more similarity is required between their
essential characteristics. These similar characteristics must be described with a degree of generality
that gives individuality to the pattern. The court should consider the type of conduct involved, who the
victims generally were, and what motivated the accused. There is no requirement that the behaviour in
the pattern be objectively serious or comparatively serious. In comparing different incidents in an
alleged pattern of repetitive behaviour, the court must consider the context and surrounding
circumstances in which the behaviour occurred. In particular, the court should consider the accuseds
mental state at the time of the index offence and at the time of the other incidents alleged to comprise
the rest of the pattern.
V. BACKGROUND FACTS
[119] Before applying the statutory criteria to determine whether Mr. Schoenborn should be found a
HRA, it is first necessary to set out the factual background in this case, including Mr. Schoenborns
personal and family history, the evidence concerning his mental health, the circumstances of the
offences, and his conduct and treatment at FPH since he was found NCRMD.
[120] During this application, extensive evidence has been tendered, consisting of viva voce
testimony from a number of witnesses including several medical experts regarding Mr. Schoenborns
diagnosis, treatment, and risk assessments, together with volumes of documentary evidence including
Review Board decisions, reports from treatment staff, medical reports, and other related material.
[121] The Crown called 25 witnesses including Mr. Schoenborns family members, a family friend,
and many of those who encountered him in the days and weeks leading up to the murders. The
Crown also called several psychiatrists including Dr. Hediger, Mr. Schoenborns treating psychiatrist;
Dr. Lohrasbe, a forensic psychiatrist who assessed Mr. Schoenborn in 2009; and two other
psychiatrists who conducted risk assessments of Mr. Schoenborn at the request of the Crown -
Dr. Semrau and Dr. Hart. I also heard testimony from Dr. Cooper and Dr. Cook, two psychologists who
provided treatment to Mr. Schoenborn at FPH.
[122] Mr. Schoenborn called Dr. OShaughnessy, a psychiatrist who conducted an assessment
shortly after the murders and again in 2016, and Dr. Brink, who was Mr. Schoenborns original treating
psychologist at FPH.
A. Childhood and Early Years
[123] Mr. Schoenborn was born in Winnipeg on March 7, 1968 and is presently 49 years old. He was
40 years old when the murders occurred. He is a middle child with an older sister and a younger
brother. The family lived in Winnipeg until the parents separated when Mr. Schoenborn was about 12
years old. Mr. Schoenborn lived with his mother for two years and then both he and his brother moved
to live with their father in Camrose, Alberta. Mr. Schoenborns siblings testified that their father was an
angry man who drank to excess. Mr. Schoenborn and his siblings would often have physical fights and
his sister recalls Mr. Schoenborn would get in fights with other children at school. She testified that it
was normal stuff with teenage boys and there was nothing remarkable about these events.
Mr. Schoenborn dropped out of school in grade 10 and thereafter worked at a variety of jobs.
[124] According to Mr. Schoenborns brother Derek Schoenborn and his childhood friend Kelvin
Miller, Mr. Schoenborn drank to excess as a teenager and into his early twenties. Mr. Schoenborn
started drinking at about age 14 or 15. It was not unusual for Mr. Schoenborn to spend an entire
weekend drinking along with his father, his brother and sometimes Mr. Miller. Inevitably, these drinking
binges would result in arguments, which would often lead to physical fights amongst the Schoenborns.
Mr. Schoenborn occasionally used marihuana and may have tried other drugs including cocaine but
alcohol was his first choice. Derek Schoenborn testified that when drinking, Mr. Schoenborn could be
argumentative and belligerent but when sober he was a decent guy. When Mr. Schoenborn went to
the local bars he would often get into bar fights. Mr. Miller said he never had a physical fight with
Mr. Schoenborn but they did wrestle.
B. Criminal Record
[125] During his teenage years and early twenties, Mr. Schoenborn had numerous encounters with
the criminal justice system as reflected in his criminal record. Between 1984 and 1993,
Mr. Schoenborn acquired 19 criminal convictions ranging from break and enter, mischief, resisting
arrest, obstructing a police officer, assault with intent to resist arrest, escaping lawful custody, theft,
causing a disturbance, assault causing bodily harm, failure to appear, and impaired driving. I do not
have sufficient detail to conclude precisely what occurred for many of the convictions. The following
details are derived from witness testimony:
1985 convictions for break and enter and theft - According to Derek Schoenborn, this incident
was when his brother was 16 and stole canteen money from his place of work.
Mr. Schoenborns criminal record indicates he was sentenced to 14 days in jail and 13 months
probation.
1989 assault causing bodily harm - the only details of this incident are from Mr. Schoenborns
description to Dr. OShaughnessy during their August 2016 meeting. Mr. Schoenborn said there
was an incident at a party where another male insulted his girlfriend. Mr. Schoenborn struck the
other male in the mouth and when the male pursued him Mr. Schoenborn hit him with a guitar,
causing some injuries. The criminal record indicates Mr. Schoenborn was sentenced to six
months in jail.
1987 convictions for obstructing a police officer; assault with intent to resist arrest, and
escaping lawful custody - the Crown called Cst. Thomsen, a retired member of the Camrose
Police department who described his encounter with Mr. Schoenborn in July 1986. While Cst.
Thomsen was conducting a search of a motor vehicle for liquor, Mr. Schoenborn confronted him
and began yelling at him. Cst. Thomsen described Mr. Schoenborn as aggressive and agitated;
and said he was yelling and blocking the police car door. When Cst. Thomsen attempted to
arrest Mr. Schoenborn for obstructing him, they got into a physical altercation and then two
others joined in to assist Mr. Schoenborn. As Cst. Thomsen tried to handcuff Mr. Schoenborn a
female pulled him off and Mr. Schoenborn and the others left the scene. Cst. Thomsen testified
that he had to fight for his survival. Eventually, Mr. Schoenborn was arrested, convicted and
sentenced to a 30 day custodial sentence in January 1987.
[126] After his conviction in November 1989 for impaired driving, there is a gap in Mr. Schoenborns
record until January 2008 when he acquired another impaired driving conviction. Then, as will be
discussed later in this section, Mr. Schoenborn pleaded guilty to breach of recognizance in February
2008 in relation to an incident involving Ms. Clarke in mid-2007.
C. Family History and Relationship with Darcie Clarke
[127] Mr. Schoenborn met Ms. Darcie Clarke in 1993 after he moved from Alberta to BC. They began
a common law relationship shortly after they met. According to family members testimony,
Mr. Schoenborn and Ms. Clarke had a good relationship and appeared very happy. Mr. Schoenborn
was providing for Ms. Clarke by working as a roofer, and they were described as being as close as
two peas in a pod. The couple lived for a time on Moss Street in Vancouver.
[128] However, problems emerged in their relationship around the time of the birth of their first child,
Kaitlynne, in May 1998 and persisted through the births of their other two children, Max and Cordon.
According to family members as well as the testimony of Ms. Clarke at trial, Mr. Schoenborn became
increasingly jealous and suspicious that Ms. Clarke was being unfaithful. These suspicions evolved
into an obsession which influenced Mr. Schoenborns behaviour and contributed to the break-down in
the relationship.
[129] Some insight into the dynamics of their relationship was provided by Ms. Clarkes brother, Mike
Clarke. Mr. Clarke testified he was present when Mr. Schoenborn would verbally abuse Ms. Clarke by
calling her names and swearing at her. On one occasion, sometime after 1998, Mr. Clarke described
Mr. Schoenborn going crazy on her because he was not happy with the type of nails she had
purchased for a roofing repair on their home. Mr. Clarke testified that Mr. Schoenborn could be polite
and soft-spoken when he was not drinking but he got a look in his eyes when he drank.
[130] Mr. Clarke also testified as to physical incidents between himself and Mr. Schoenborn. He
testified that one evening in 1998 while he was staying at his mothers residence, Mr. Schoenborn
came to the house extremely intoxicated and requested help in locating Ms. Clarke. Mr. Clarke said as
they were about to go down the stairs Mr. Schoenborn tried to push him down the stairs. Mr. Clarke
grabbed his arm and it was Mr. Schoenborn who ended up falling down the stairs. When they got
outside Mr. Clarke warned Mr. Schoenborn not to do that again and Mr. Schoenborn apologized and
said he had an argument with Ms. Clarke.
[131] Mr. Clarke described two other peculiar encounters in which Mr. Schoenborn pulled his hair. In
1999, prior to Maxs birth, Mr. Clarke said Mr. Schoenborn arrived home when Mr. Clarke was visiting.
Mr. Clarke was sitting on the couch holding Kaitlynne when Mr. Schoenborn came and sat down
beside him and suddenly grabbed his hair with pretty good force. A few months later, Mr. Clarke was
chatting with Mr. Schoenborn when suddenly he grabbed Mr. Clarkes hair. Mr. Schoenborn had
consumed a few beers when the incident occurred. When Mr. Clarke told him to stop, Mr. Schoenborn
did so and apologized.
[132] There is also evidence of confrontations between Mr. Schoenborn, his sister, and her husband,
who I will refer to as Mr. H. It is evident from the testimony of several witnesses that Mr. Schoenborn
did not have a good relationship with his brother-in-law, Mr. H. The two had a long history of verbal
hostility which at one point escalated to physical aggression. Mr. H. testified he punched
Mr. Schoenborn and broke some of his ribs because he was fed up with his drinking, smoking, and
antics in general. In Mr. Hs words he decided to clean [Mr. Schoenborns] clock. Mr. H. testified that
after this incident Mr. Schoenborn, his brother Derek and their father threatened to kill him, although
there were no specific details regarding the nature of the threat or who specifically made it. Mr. H.
testified that many of their conflicts occurred when Mr. Schoenborn had been drinking and appeared
to be unglued. Mr. Schoenborns sister and her husband described another incident in the parking
lot of a hockey rink where Mr. Schoenborn was angry at them because he was not invited to watch
one of their sons play hockey. His sister testified that Mr. Schoenborn grabbed her shoulders and she
told him to never man handle her again. Mr. H. testified that Mr. Schoenborn had been drinking and
raised a beer bottle towards the window of the car. While I accept there was an incident with
Mr. Schoenborn it is not entirely clear from the testimony what exactly occurred so it is difficult to
access the nature or gravity of the encounter. The incident was never reported to the police.
D. History of Mental Illness
[133] When he was about 19 years old, Mr. Schoenborn was admitted to St. Marys Hospital in
Camrose, Alberta for acute psychosis. He was treated for symptoms of psychosis that included
auditory hallucinations. According to both Dr. OShaughnessy and Dr. Brink this incident may have
been the first emergence of a major mental illness.
[134] As mentioned, in the late 1990s Mr. Schoenborn developed strong suspicions about
Ms. Clarkes infidelity. Eventually he began to have paranoid, delusional thoughts about his children
being in danger from drugs, poison, or sexual abuse, which resulted in very concerning behaviour and
culminated in a psychotic episode that led to Mr. Schoenborn being briefly hospitalized. These matters
were thoroughly canvassed at paras. 44-55 of the trial decision:
[44] Problems began when Ms. Clarke told Mr. Schoenborn that she was pregnant with their first
child, Kaitlynne. She made this announcement in the presence of a mutual friend.
Mr. Schoenborn immediately became suspicious because he thought this was a private matter
and the announcement of the pregnancy should have been in private. He began to suspect that
Ms. Clarke was announcing the pregnancy in the presence of the friend because the friend was
the father. There was no basis for the suspicions.
[45] Mr. Schoenborns suspicions about Ms. Clarke and other men became an obsession. He
suspected co-workers and neighbours. He began to read meaning into innocuous events. He
tried to catch Ms. Clarke with somebody else by parking his vehicle away from the house and
sneaking up on her. She was not with anyone else.
[46] Mr. Schoenborn accused her many times of being unfaithful and refused to believe her
denials. Many of these accusations were made in an angry and threatening manner.
[47] In 1999, when Kaitlynne was less than two years old, Mr. Schoenborn began to suspect that
Ms. Clarke had a lover who was involved in drugs. He believed that she and her lover were
trying to poison Kaitlynne or drug her. He believed they were doing this through the childs
Orajel. In order to prove that the Orajel had been poisoned or drugged, he consumed the entire
tube. The Orajel had not been drugged or poisoned. However, his suspicions remained.
[48] He believed that Ms. Clarke and her mother were whispering about him in the home. He
stated in his evidence he does not allow whispering in the home. He believed they were trying to
keep things from him. He became upset and took Kaitlynne for a drive in order to calm his
thoughts. Kaitlynne fell asleep in her car seat and would not wake up. He concluded that she
had been poisoned and began driving at high speed toward the hospital. He was involved in a
motor vehicle accident and the police and the ambulance attended. In his testimony, he gave
evidence about a woman that he believed was trying to take the child on the pretence of caring
for the child at the accident scene. He also gave evidence that a man had made some rude
comment to him about his driving, and Mr. Schoenborn was going to go after him. The reference
to this woman and this man first occurred in cross-examination and does not appear to have
been mentioned anywhere else. It is hard to tell whether this is an event that Mr. Schoenborn
recalls or whether it is something he has reconstructed in his mind.
[49] Mr. Schoenborn and Kaitlynne were taken to the Eagle Ridge Hospital. Mr. Schoenborn
insisted that the child be tested for drugs and for sexual abuse. He said he suspected foul play,
but gave no real basis for that. There was no evidence of any drugs or sexual abuse with regard
to the child, Kaitlynne. The documents indicate Mr. Schoenborn believed he smelled semen on
one of his hats and suspected Ms. Clarkes lover may have put it there. Mr. Schoenborn can only
say that he was excited at the time, in a panic and that he needed assurance from the doctor
that everything was alright.
[50] Mr. Schoenborn was taken to the Royal Columbian Hospital to have his mental state
assessed. He was there approximately ten days. He was subsequently released against the
wishes of the treating psychiatrist. However, one of the other doctors concluded that he was no
longer psychotic and that he could not be held. Mr. Schoenborn left the hospital, but did not
continue with the medication which had been prescribed, nor did he take any further treatment.
He did tell one of the doctors that he had been mistaken about his concerns for the child and that
he understood that. It is not clear what role drugs or alcohol may have played in his condition.
There is some indication that he had been consuming drugs or alcohol and also some indication
in the records that he had not been.
[51] Ms. Clarke was present with Mr. Schoenborn when he was released from the hospital.
Mr. Schoenborns brother-in-law gave them a ride home. On the way past a pub, the brother-in-
law said to Ms. Clarke That was quite a night. Mr. Schoenborn said these words had a
significant impact on him and he believed that they must have been partying while he was in the
hospital. He would not accept Ms. Clarkes assurances that she did not know what the brother-
in-law was talking about.

[53] Mr. Schoenborn repeated a number of instances in which he became suspicious of

Ms. Clarke, including the belief that he heard a neighbour saying, in reference to her, that he
had a piece of that. Mr. Schoenborn did not confront the neighbour, but subsequently
confronted Ms. Clarke. She denied it and he said he accepted that, however, he continued to be
suspicious. He even questioned whether he was the father of their children.
[54] He mentioned an incident on Moss Street when he smelled Maxs hair. He said that he
thought Maxs hair smelled like semen. It had a sour smell. I am satisfied he never told
Ms. Clarke it smelled like semen. He mentioned to her that Maxs hair smelled bad, but she said
that he was being treated for a scalp condition. He said that he suspected the worst of his
neighbours and would not allow Max to go there anymore. He believed the neighbours were
smuggling small children in and out of the residence in their luggage.
[55] Mr. Schoenborn continued to be suspicious of Ms. Clarke and fearful of the drug culture and
the people involved in drugs. He himself was a heavy user of marihuana and alcohol.
[Emphasis added.]
E. 2007 and 2008: Separation from Ms. Clarke and declining mental health
[135] Mr. Schoenborns behaviour appears to have stabilized for a number of years until it again
became increasingly concerning in the months leading up to the murders. Powers J. reviewed the
evidence in respect of this time period at paras. 56 to 93 of the trial decision. Ms. Clarke testified that
Mr. Schoenborn was drinking heavily during 2007 and that he started losing his mind at that time. He
continued to work and provide for the family but he would also berate and incessantly question
Ms. Clarke about her suspected infidelity. On one occasion he hit the wall in an attempt to intimidate
Ms. Clarke when he thought she was lying, and on another he struck her, breaking her nose, although
he claimed he was trying to hit the wall and that she moved into the way.
[136] Mr. Schoenborns preoccupation with scents continued and he would smell Ms. Clarke to try to
determine whether she had been with anyone else. In May 2007 he believed he detected the odour of
a co-worker on Ms. Clarke when they were engaged in foreplay; in response Mr. Schoenborn raised
his fist and threatened Ms. Clarke if she did not perform oral sex on him. The next day, during another
argument, Mr. Schoenborn broke a window to get Ms. Clarkes attention. Ms. Clarke called the police,
who attended at the house and arrested Mr. Schoenborn; he was ultimately charged for the previous
days sexual assault. The charge was resolved when Mr. Schoenborn entered into a peace bond with
a condition not to have any contact with Ms. Clarke while under the influence of alcohol. In August
2007 he breached that condition by attending at Ms. Clarkes residence with beer and wine.
Ms. Clarke poured the wine down the drain, which caused Mr. Schoenborn to become angry. The
police attended and Mr. Schoenborn was charged with breach of a recognizance. In February 2008 he
pleaded guilty to that offence and received a fine.
[137] At the end of August 2007 Ms. Clarke moved to Merritt to be closer to her mother.
Mr. Schoenborn helped with the move and made regular visits to spend time with the children,
however he remained and continued to work in the Lower Mainland. Ms. Clarke and the children
ultimately moved into a rental home at Mr. Schoenborns insistence (he believed the motel where they
had been staying was filled with drug users). For his part, Mr. Schoenborn had nowhere to live. He
spent a few days living at his sisters house but she asked him to leave. For a time he lived in his
truck, however he ultimately lost his drivers license and could no longer use the vehicle. Thereafter
he would take the bus to Merritt to visit the children. Occasionally his brother would drive him.
Sometimes he slept in a tent while he was working in the Lower Mainland.
[138] In late 2007 Mr. Schoenborns mental health deteriorated dramatically. He began hearing
voices and believed a transmitter had been placed in his teeth or brain. He thought he heard
Ms. Clarke talking to people in the washroom and that there were people outside listening, and he
tried unsuccessfully to find these people. He believed his cell phone was bugged and that Ms. Clarke
was patching her lovers or other people into their calls. Ultimately he stopped using his cell phone
entirely. He began to believe Ms. Clarke was involved in the drug trade or controlled by drug dealers.
Mr. Schoenborn revealed some of this to Ms. Clarke, who told him at least once that he should see a
doctor, but he refused and said there was nothing wrong with him. He continued to accuse Ms. Clarke
of being unfaithful and argued with her about his suspicions often: see paras. 62-66 of the trial
decision.
[139] In the spring of 2008, although Mr. Schoenborn and Ms. Clarke were living separately, he
continued to be involved with the children. Mr. Schoenborn still visited and spent time with the family,
and spent most of March 2008 living with Ms. Clarke and the children in the rented house. Despite
their marital discord, Ms. Clarke viewed Mr. Schoenborn as a good father who was close to all his
children. Ms. Clarke had no concerns leaving the children alone with him. This was a view shared by
various family members who testified at this hearing.
[140] However, in the days prior to the murders Mr. Schoenborns delusions around the childrens
safety caused him to act out in an increasingly erratic fashion. Mr. Schoenborn became so concerned
over the well-being of his children that he attended at their school on April 1, 2008 to check on them.
On that same day he also attended at the office of the Ministry of Children and Families (as it was
then called) in Merritt to discuss his childrens well-being. While at that office he was arrested on an
outstanding warrant for driving while prohibited. Mr. Schoenborn was transported to Kamloops,
processed and released on bail the following day. He was provided a bus ticket to return to Merritt. By
the time Mr. Schoenborn arrived at the bus station in Kamloops he had consumed several beers.
While loading onto the bus Mr. Schoenborn got into a scuffle with another passenger which resulted in
the bus driver requesting that Mr. Schoenborn leave the bus and wait for a later one. The bus driver
described Mr. Schoenborn as looking stressed and acting like the whole world was against him. The
driver advised the dispatcher on duty that evening about his encounter with Mr. Schoenborn, who
remained in the lobby of the bus station.
[141] The dispatcher described Mr. Schoenborn as unshaven, angry, and under the influence. He
testified that Mr. Schoenborn became increasingly angry and stood in the lobby of the bus station
yelling in a loud voice about needing to get on the bus. Mr. Schoenborn followed the dispatcher into
his office and demanded he be allowed to get back on the bus to Merritt. Although Mr. Schoenborn
was very upset at first, the dispatcher testified that he seemed to calm down and ultimately left without
incident. Mr. Schoenborn wound up on an early morning bus to Merritt and arrived at 2:30 or 3:00 am.
[142] In the early morning hours of April 3, 2008, Cst. Weise of the Merritt RCMP encountered
Mr. Schoenborn in the parking lot outside the local detachment. Mr. Schoenborn appeared intoxicated
and looked thin and dishevelled. Mr. Schoenborn was arrested for being intoxicated and released the
following morning.
[143] I also heard testimony from a number of individuals who encountered Mr. Schoenborn on April
3, 2008 when he attended at the childrens school and was subsequently arrested. It is evident from
this testimony that Mr. Schoenborn was exhibiting disturbing behaviour which, according to
Dr. OShaughnessy, was consistent with someone suffering from a paranoid psychotic disorder (the
medical opinions regarding Mr. Schoenborns mental state at this time will be discussed more fully
below). I adopt the summary of the witnesses testimony regarding the events of April 3, 2008 as set
out by Powers J. in the trial decision at paras. 73-84:
[73] Mr. Schoenborn attended the school to confirm the children were still there. The school
secretary confirmed that the computer showed the children were present, but this did not satisfy
Mr. Schoenborn. He asked if she had seen them. He asked to see the children himself. He
spoke with Kaitlynne. Mr. Schoenborn was concerned about how the children were doing. He
was assured that they were doing fine. He asked to be contacted if there were any concerns
about the children, but had no way for the school to contact him except through the children. The
school secretary described him as more anxious and dishevelled than on April 1st, very, very
concerned [sic]. He was overreacting and his conversation did not make sense. She thought he
was falling apart.
[74] Mr. Schoenborn returned to the school at noon. He was on his way to the Ministry office.
The children were out playing. He did not see Kaitlynne on the school grounds and became
concerned she was not there. When he did find her, he did not accept her statement that she
had been on the school grounds. He left and then returned a short time later. He believed that
Kaitlynne was being bullied by another child and he yelled at that child. He accused the
playground supervisor of being daft for not seeing it and not doing anything about it. The
playground supervisor thought he was overreacting and being improper. He scared the young
child.
[75] Mr. Schoenborn spoke with the principal, Ms. OFlaherty. Mr. Schoenborn said that Kaitlynne
had been picked on and that he snapped and berated the child who was picking on her.
[76] Mr. Schoenborn told the principal he had a number of concerns, including:
Kaitlynne being behind academically. She was not. She was an A+ student, but
Mr. Schoenborn did not accept that;
drugs in the school. The principal assured him that there were no concerns with drugs at
the school and that they had a policy in place and had no problems for two years.
Mr. Schoenborn did not accept that. He said she was not being straight with him;
Kaitlynne being off the school grounds and the principal said she would look into it;
he said that someone had tried to sell a cell phone to Kaitlynne and the principal said
that she could not control everything that occurred off the school grounds.
[77] Mr. Schoenborn wanted the principal to make a police report. He was agitated, he smelled
of alcohol and she felt unsafe. She allowed Mr. Schoenborn to call the RCMP. She also had a
staff member call the RCMP about Mr. Schoenborn.
[78] Mr. Schoenborn called the RCMP and afterwards told the principal that the police believed
he was overreacting. He spoke to Kaitlynne before leaving and told her that everything he was
doing was to protect her. He told the principal he was not sure what his next move would be.
[79] The principal said at times his speech was disjointed, short and choppy. He would say that
he was not sorry for shouting at the child in the school grounds, that he would do it again and
then he apologized. He jumped from topic to topic and his thoughts were not connected. At one
point, he said it was not really important and then thought about it and said maybe it was
important.
[80] She tried to reassure him, but he did not accept her reassurances. He said he was
concerned about drugs but would not give the principal any specifics. She believed he was not
being rational and told him so. He did say he would not tolerate anything going wrong with his
children.
[81] When Mr. Schoenborn called the RCMP, he spoke to Ms. Matthews, a telecommunications
operator. She had worked in that position for 25 years. She described him as agitated, yelling,
and there was heavy breathing and grunting. There was a mishmash of words which did not
connect. He would calm down, mention his daughter being off the school grounds and then he
went off again, or flipped again. She told the RCMP officer, Constable McDiarmid, that he
sounded nuts.
[82] Constable McDiarmid spoke to Mr. Schoenborn and calmed him down. Mr. Schoenborn was
concerned about his child being off the school grounds and being inadequately supervised. He
complained that she had been picked on. He was agitated, upset and frustrated. Constable
McDiarmid had no difficulty understanding him.
[83] When Mr. Schoenborn left the school building, he spoke to Jacquie Hermann outside. He
asked her How do you think the children are doing? She told him they were doing very well and
that they were beautiful kids. Mr. Schoenborn said that he was not sure and he did not know
what he was going to do next.
[84] The police had been called by the school staff because they were concerned about
Mr. Schoenborns conduct. When the police arrived, Mr. Schoenborn approached the police and
appeared to be relaxed.
[Emphasis added.]
[144] Cst. McDiarmid arrested Mr. Schoenborn for uttering threats in relation to events at the school.
He described his dealings with Mr. Schoenborn, in which Mr. Schoenborn continued to behave
strangely. After being booked into custody Mr. Schoenborn unsuccessfully attempted to flee the
detachment, although he was in a secure area. He was also very demanding after he was granted bail
at a teleconference hearing before a Judicial Justice of the Peace. Eventually Mr. Schoenborn
perfected his bail and was released from custody.
[145] On April 4, 2008 Mr. Schoenborn went to spend the weekend with his children while Ms. Clarke
stayed at her mothers. Ms. Clarke testified that she told Mr. Schoenborn she did not want to reconcile
with him; however he denied hearing her say so: see para. 90 of trial decision.
F. The Murders
[146] On April 5, 2008 Mr. Schoenborn left the children with Ms. Clarke for a while and became upset
when he believed she was late in returning them: see para. 91 of trial decision. Although he did not
express any anger towards Ms. Clarke, his evidence at trial was that he believed Ms. Clarke was
being pressed by low-lives to fill the kids with drugs and a life of prostitution: see para. 102.
[147] During the evening of April 5, and into the early morning of April 6, Mr. Schoenborn killed the
three children. Kaitlynne was ten years old, Max was eight, and Cordon was five. Mr. Schoenborn
gave the following evidence about what happened, as set out at paras. 104-121 of the trial decision:
[104] Mr. Schoenborn said that when he put the children to bed he could smell Maxs hair. He
said it smelled like semen. He said I was gone. It really fucked me up; brought back what I was
worried about the molesting. He said he could not sleep and called Ms. Clarke and asked her
to come over, but she would not come over. He claimed he was being careful about what he said
to her because he thought the telephones might be monitored.
[105] Mr. Schoenborn said he was convinced the children were being molested and he tried to
communicate this to Ms. Clarke, but she would not listen. He concluded it was not in his head.
Everywhere he went he was running into brick walls.
[106] He said that he asked himself what he could do. He could not walk away and killing himself
would not help the children. He decided all he could do was give them up. He could not let them
go through this; that a parent could not take that.
[107] After a considerable amount of time he separated the children. He killed Kaitlynne first. He
struck her with a cleaver a number of times, and when that did not work he said he smothered
her. He stopped to consider what he had done and how badly it had gone. He said next he
smothered Cordon with a pillow and his hand. Again, he said this was much more difficult and
took longer than he thought it would. He reconsidered and killed Max by placing a piece of
plastic and his hand over Maxs mouth. He said that when Max died he heard the TV say Thats
the last of the white ones. He had separated the children so they would not interfere with what
was occurring. He also placed the dog in the games room and closed the door.
[108] Mr. Schoenborn cleaned up and positioned the children so that they would look as if they
were sleeping. He wrote on the wall in the living room with soya sauce the words Forever
Young. He wrote in blood on a pillowcase Forever Young and on the other side Gone to
Neverland.
[109] He said when he was doing these things he was thinking about Ms. Clarke and did not
want it to be worse for her. He said he did not leave a note or letter because those could be lost
and he wanted her to know what had happened. He said he was giving up the children to a
better place.
[110] Mr. Schoenborn said that he then attempted suicide; first with a razor blade and a cleaver.
He also placed an electric cord in the bathtub and tried to electrocute himself without success.
Daylight was coming and he said he was afraid Ms. Clarke would arrive. He was concerned she
would fall apart and call the police. He did not want somebody to stop him from killing himself.
He wanted to kill himself to be with the children.
[111] Mr. Schoenborn dressed, took the cleaver and the dog and left the residence. He did not
take his wallet or any money with him. He said his intention was to kill himself. He gave evidence
about his attempts to kill himself, including by cutting himself and by lying in a snow bank.
Eventually he changed his mind. He said he was overcome by hunger and decided that he
wanted to get to Ms. Clarke so he could tell her why he killed the children. He attempted to avoid
being captured. He was going to a farmhouse to look for food for the dog, but did not when
people arrived in a vehicle. He did not go very far if he was trying to escape.
[112] Ten days later when he was found, he lied to Mr. Robinson, who first confronted him. He
denied who he was and gave a false story about where he was going. Subsequently, when
further confronted by Mr. Robinson, he admitted his identity and that he had killed his children.
He said he did it to save them from a life of humility. In his evidence, he explained that was the
word he used, but he meant humiliation.

[116] Mr. Schoenborn said that after he smelled Maxs hair that the light came on. He asked
himself if he were fooling himself and realized there were way too many things in his life to be a
coincidence. He said there was no other way to protect the children and he believed he would be
hushed. He decided he would completely stop it and he would give them over to God.
[117] He denies acting out of anger towards Ms. Clarke.

[119] He said that he killed the children to save them and that he did the right thing. He then said
that he could be wrong, but he thinks he did the right thing.
[120] Mr. Schoenborn mentioned seeing Kaitlynnes spirit while he was in the prison yard. He
said she told him that she forgave him. He said this brought him comfort because he was
worried about that. If she forgave him then the boys would. He said then it was just between he
and God.
[121] He was asked in cross-examination that if he had done nothing wrong, why he needed
forgiveness from the children and from God. He said it was because the law says not to take a
life.
G. The NCRMD Verdict
[148] The Crowns theory at trial was that Mr. Schoenborn killed the children as retaliation against
Ms. Clarke for their separation. The defence argued that Mr. Schoenborn was psychotic when he
killed the children and that his actions were motivated by his psychosis and delusions. Each side
called expert medical evidence from a qualified forensic psychiatrist - Dr. Lohrasbe for the Crown and
Dr. OShaughnessy for the defence. Dr. OShaughnessy identified Mr. Schoenborns psychotic
incidents in 1987 and 1999 as evidence of an ongoing delusional disorder. He testified at the trial that
a delusional disorder is typified by a fixed, firm, false belief that defies any kind of challenge or logic:
see para. 129 of the trial decision. In particular, he noted that Mr. Schoenborns olfactory
hallucinations - the odours he detected - led to crazy beliefs of his wifes infidelity and of abuse of the
children: para. 129. He opined that Mr. Schoenborns psychosis motivated him to kill the children. As
summarized by Powers J. in para. 135 of the trial decision, Dr. OShaughnessy testified that
Mr. Schoenborn had a moment where in his own mind all of his suspicions came together and he
reached what was an irrational conclusion, but this explains his conduct. Dr. OShaughnessy was
also of the opinion that Mr. Schoenborns extreme jealousy of Ms. Clarke was irrational to the point of
delusion.
[149] Dr. Lohrasbe diagnosed Mr. Schoenborn as having a major mental disorder, but said he could
not make a clear connection between this disorder and Mr. Schoenborns actions in killing the
children. He agreed Mr. Schoenborn was psychotic when he attended at the childrens school, and
that he was mentally disordered when he killed the children. However, he testified that
Mr. Schoenborn may have been motivated by something other than his delusions or psychosis.
Dr. Lohrasbe presented two alternate hypotheses for the motivation behind the murders, one
altruistic and the other retaliatory.
[150] Dr. Lohrasbe agreed that Dr. OShaughnessys opinions were reasonable. Powers J. noted at
para. 164 that both Dr. Lohrasbe and Dr. OShaughnessy agreed that if the altruistic hypothesis was
dominant when Mr. Schoenborn killed his children, in other words if he was in a psychotic state at that
time and motivated by that psychosis and the delusions, then he would lack awareness of the
wrongfulness of his conduct.
[151] Powers J. discussed the central issue of whether s. 16 of the Code applied such that
Mr. Schoenborn should be found NCRMD for the murders at paras. 234-246 of the trial decision:
[234] I have considered all of the evidence and the careful arguments of counsel for the Crown
and defence. I find, on a balance of probabilities; that is, that it is more likely than not, that when
Mr. Schoenborn killed his children he was suffering from a disease of the mind. This disease of
the mind was a delusional disorder with some symptoms of schizophrenia. The weight of the
evidence supports this finding. That evidence is the history of psychosis beginning in 1987, but
certainly in 1999. I note that in 1999 the delusions and fears he suffered from related to
Kaitlynne and drugs, and potential sex abuse. In addition, there is the evidence of his
deteriorating condition in the weeks and months before he killed his children. This includes the
hearing of voices, increased delusions with regard to his spouse and the increased anxieties
regarding the safety of the children. The psychotic episodes certainly include the April 3rd
episode at the school. There is evidence that at times Mr. Schoenborn did not display any
psychotic symptoms. This is consistent with the very marked fluctuations that Dr. Lohrasbe noted
from the prison records.
[235] Mr. Schoenborn had a consistent theme throughout his psychosis being delusions about
infidelity on the part of his spouse and her involvement with the people in the drug culture. He
has had a persistent fear of the drug culture, although he certainly abused drugs himself. This is
all part of the history of his psychosis. Both psychiatrists referred to the aha moment, when a
paranoid delusional like Mr. Schoenborn for some reason suddenly concludes that all of their
fears are real. This is probably what happened with Mr. Schoenborn on the night he killed his
children.
[236] I have seriously considered the concerns raised by the Crown and by Dr. Lohrasbe about
the changes in Mr. Schoenborns explanations over time. I find that there is a certain amount of
reconstruction in his evidence. Dr. Lohrasbe, however, was clear that this was not evidence of an
intentional fabrication. I have considered the hypothesis that Mr. Schoenborn may have acted
out of anger towards Ms. Clarke. However, there was no demonstration of anger in the week
before the children were killed. I also find it unlikely that Mr. Schoenborn would have killed his
children out of anger given the close and caring relationship that he had with his children.
Mr. Schoenborn was, if anything, over protective of his children. The irony is that the real danger
to the children was Mr. Schoenborn himself and none of the dangers that he imagined in his
mind. It is possible that he acted out of anger, but it is more likely than not that his actions were
as a result of his psychosis.
[237] Did Mr. Schoenborn appreciate that it was wrong to kill his children? Wrong means more
than simply contrary to the law. Wrong means contrary to the ordinary moral standards of
reasonable men and women. No reasonable or rational person would believe that it was right for
Mr. Schoenborn to kill his children, even if they were actually being abused or subjected to a life
of drugs and sexual abuse.
[238] The question, however, is whether Mr. Schoenborns mental disorder so obstructed his
thought process as to render him incapable of knowing that his acts would, under all the
circumstances, be considered wrong by the ordinary moral standards of reasonable men and
women? Whether his mental state was so disordered that he was unable to rationally consider
whether his actions were right or wrong in the way a normal person would? Did he have the
capacity to know that his acts were something he ought not to do in the eyes of ordinary
reasonable people? Section 16 may apply even though a person knows in the general sense
that they should not commit a crime. They may still believe, because of the mental disorder, that
their actions are right according to the ordinary morals of society in the particular circumstances.
[239] The psychiatric evidence is that a paranoid delusional person who is psychotic at the time
they are acting may appear to be acting in a deliberate way, but still be operating under their
delusions.
[240] Dr. OShaughnessy for the defence and Dr. Lohrasbe for the Crown were very clear in their
opinions. They are both of the opinion that if Mr. Schoenborn was psychotic at the time he killed
his children then because of his psychosis he would not be able to rationally consider whether
his actions were right or wrong. I take from this that he may try to reason the matter out, but
because of his break with reality, disordered thinking and delusional beliefs, he would not be
able to make a rational choice between right and wrong.
[241] I rely on these opinions more than simply the comments made by Mr. Schoenborn after the
fact.
[242] The Crown suggests that Mr. Schoenborn knew that Ms. Clarke would be upset by the
killings. I agree, but that is somewhat equivocal. Mr. Schoenborn himself was upset with the
killings. His staging of the bodies afterwards is more likely a result of his psychotic delusions and
break with reality than any intent to cause harm to Ms. Clarke or to hide what he had done.
Mr. Schoenborn did make a genuine attempt at suicide, although fairly shortly after these
attempts he changed his mind. I find it is more likely than not that when he left the residence he
did intend to continue his efforts at suicide, although it is uncertain how long he held that intent.
He tried to avoid capture, but did not make much of an effort to get far from the scene. He was
found within four kilometres of the childrens home. He did not take any money with him or his
wallet. I was referred to Mr. Schoenborns need for forgiveness expressed at the trial.
Dr. Lohrasbe said he would expect a persons perceptions of their actions to change over time.
In other words, they may not always believe that what they did was correct. They may begin to
question their beliefs. I take it this is as a result of their psychosis being more or less severe from
time to time. This is what probably happened with Mr. Schoenborn.
[243] Based on the evidence, and particularly the evidence of the psychiatrists, I find that it is
more likely than not that Mr. Schoenborn was unable to appreciate that at the time he killed his
children that it was wrong in the sense that reasonable people would think it was wrong.
[244] As I said earlier, clearly any reasonable or rational person would know that it was wrong
and would know that other reasonable people would believe it was wrong. However, due to
Mr. Schoenborns psychosis at the time, he was not able to make that decision.
[245] In reaching my decision I have not accepted everything Mr. Schoenborn says. Much of
what he says is probably the result of reconstruction to put himself in a better light. I accept
Dr. Lohrasbes evidence that this reconstruction is not made with the intention to deceive.
Mr. Schoenborn is a person that is extremely self-absorbed and self-centred. He sees himself as
the major part of every event that goes on around him. He is a man concerned about himself and
his feelings more than anything else I agree with Dr. OShaughnessy and Dr. Lohrasbe that he
lacks insight into himself and his illness. In his initial interview with Dr. OShaughnessy, he
denied some of the symptoms of psychosis that Ms. Clarke gave evidence about. He tends to
downplay his own mental illness or to disguise it. This may a product of his personality or his
psychosis, especially the paranoid elements of both. I accept Dr. OShaughnessys opinion that
he will be almost impossible to treat. I suspect it will be extremely difficult to treat and know
whether his illness is actually under control or whether he is merely suppressing the symptoms.
[246] However, despite my concerns about Mr. Schoenborn, I do accept the essential portions of
his evidence dealing with his fears for the children and his motivation for killing them.
[Emphasis added.]
H. Review Board hearings and time at FPH
[152] Powers J. delivered judgment on February 22, 2010. On April 6, 2010, the BC Review Board
convened an initial hearing to make a disposition under s. 672.54 of the Code. Mr. Schoenborn was
ordered detained in custody on strict conditions: Schoenborn (Re), [2010] B.C.R.B.D. No. 19. The
panel noted that Mr. Schoenborns treating psychiatrist at the time, Dr. Brink, recommended his
ongoing detention. Dr. Brink gave evidence about Mr. Schoenborns sense of entitlement, continued
delusional thoughts, and lack of insight into his mental illness. Dr. Brink indicated that Mr. Schoenborn
was suffering from a psychotic disorder, likely a delusional disorder, and advised the panel that
Mr. Schoenborn had agreed shortly before the Review Board hearing to commence treatment with
Olanzapine, an antipsychotic medication.
[153] On April 5, 2011, the Review Board convened a hearing to review the previous disposition and
ordered Mr. Schoenborns continued detention in custody: Schoenborn (Re), [2011] B.C.R.B.D.
No. 86. Dr. Brink gave evidence once again, testifying that Mr. Schoenborn was compliant with his
medication and that the symptoms of his delusional disorder had been in remission for some time. In
addition to the diagnosis of delusional disorder (in remission), Dr. Brink diagnosed cannabis and
alcohol dependence (in controlled remission at FPH without access to these substances), cocaine
abuse (in remission), and paranoid personality traits. Mr. Schoenborn continued to show anger in
response to frustration at feeling unfairly treated or suspected of wrongdoing, and demonstrated an
underlying sense of grandiosity as part of his paranoid personality. In his testimony at the hearing of
this application, Dr. Semrau explained that delusions are fixed false beliefs that cannot reasonably be
true and that do not change even in the face of evidence to the contrary. By contrast, paranoid
personality traits entail a milder and more generalized sense of mistrust as opposed to fixed
delusions. The psychiatric experts agree that Mr. Schoenborn has both problems. Thus even with
Mr. Schoenborns delusional disorder in remission, Mr. Schoenborn required a great deal of further
treatment.
[154] At the April 5, 2011 hearing Dr. Brink indicated that Mr. Schoenborn could benefit from
supervised, escorted access to the community. The Review Board panel included a clause in the
custodial disposition permitting Mr. Schoenborn to have access to the community at the discretion of
the Director of FPH, with the expectation that any outing would be closely and appropriately
supervised and escorted, and would be for a proper purpose and a specific duration.
[155] That disposition resulted in significant media attention after it came to light that Ms. Clarke was
residing in the community in which FPH is located. The Review Board convened a hearing of its own
motion, at which Mr. Schoenborn indicated he was content to remain detained in the hospital on a
strict custodial order. The Review Board therefore imposed a strict custodial disposition on April 21,
2011, with no provision for any form of community access.
[156] Mr. Schoenborn subsequently requested and was granted an eight-month extension of that
custodial order, on the same terms and conditions, to be reviewed on or before December 21, 2012. A
review hearing was scheduled for November 23, 2012; however Mr. Schoenborn requested another
extension and, on November 16, 2012, the Review Board extended the strict custodial disposition
such that it would be reviewed on or before February 28, 2013: Schoenborn (Re), [2012] B.C.R.B.D.
No. 85.
[157] On February 15, 2013 the Review Board held another full review hearing. By this time
Dr. Hediger had replaced Dr. Brink as Mr. Schoenborns treating psychiatrist. Mr. Schoenborn
consented to a further custodial disposition on the same terms as the previous order, and the panel
made that disposition in an unreported decision. Mr. Schoenborns diagnoses of delusional disorder,
substance abuse disorders, and paranoid personality traits were unchanged. Dr. Hediger reported that
Mr. Schoenborn remained free of psychotic symptoms and continued to be compliant with treatment.
The symptoms of his delusional disorder had therefore been in remission for a number of years.
However, Mr. Schoenborn continued to have difficulties with anger management when taunted or
provoked by other patients, in addition to other problems relating to his underlying personality. In
addition, Mr. Schoenborn experienced significant difficulties with the other patients at FPH as a result
of his notoriety following the murders. In April 2011 he had been seriously assaulted by two other
patients in a deliberate and orchestrated attack. As a result he was transferred to a more secure and
restricted unit - the geriatric unit at FPH - for his own protection.
[158] At a review hearing held in February and April of 2015, the Director recommended that
Mr. Schoenborns custodial disposition be renewed, but that a condition be added allowing him
escorted community access at the Directors discretion. The Review Board heard evidence from
Dr. Hediger, who remained Mr. Schoenborns treating psychiatrist. He testified that Mr. Schoenborns
diagnoses of delusional disorder, substance abuse disorder, and paranoid personality traits remained
the same. He indicated that the administration of antipsychotic medication had been effective in
treating Mr. Schoenborns delusional disorder, that substance use had not been an issue in the
hospital (where access to intoxicants is extremely limited but not completely shut off due to the
occasional smuggling of contraband into the hospital), and that there had been some improvement in
Mr. Schoenborns paranoid personality traits.
[159] Dr. Cooper also gave evidence at the 2015 Review Board hearing; he is a psychologist who
had been providing anger management therapy to Mr. Schoenborn since the summer of 2013. He
indicated that Mr. Schoenborn had progressed well, gained insight, and succeeded in reducing the
frequency and intensity of his outbursts of anger, although there was still considerable room for
improvement.
[160] The Review Board panel ultimately accepted the Directors recommendation and, in an
unreported decision dated April 30, 2015, ordered Mr. Schoenborns continued detention at FPH with
escorted community access at the Directors discretion. I am informed that despite this disposition, to
date Mr. Schoenborn has not been recommended for escorted community access. Further,
Mr. Schoenborn has consented to his continued detention at FPH pending the outcome of this
hearing.
[161] Considerable evidence was presented at the hearing of this application with respect to
Mr. Schoenborns most recent conduct and treatment at FPH. Dr. Hediger testified in June and
September of 2016 and February of 2017. He testified that when Mr. Schoenborn first arrived at FPH
he was in acute psychosis and had no insight into his mental illness; however he shortly began to
receive treatment via antipsychotic medication and now has reasonable or good insight into his
delusional disorder. Dr. Hediger testified that Mr. Schoenborn recognizes that he was ill when he
committed the murders and that his delusions caused him to misperceive the world around him. He
has always complied with his medication at FPH. In September 2016 Dr. Hediger testified that in
general Mr. Schoenborn had made significant improvements, one of the most important of which was
that his psychosis was under control. Continued medication was the key to that improvement,
according to Dr. Hediger. There appeared to be a possible return of Mr. Schoenborns delusions, or at
least an increase in the intensity of his paranoia, in the summer of 2016 when he expressed concerns
about a possible conspiracy against him amongst the hospital staff. The dosage of his medication was
increased in response to this and in February 2017 Dr. Hediger testified that Mr. Schoenborn
presented as less paranoid and suspicious than the previous summer; however he was spending a
great deal of time alone in his room and not engaging in counselling or other therapeutic
programming. Dr. Hediger agreed in his testimony in February 2017 that Mr. Schoenborn had
experienced a setback in his treatment but that he appeared to be moving in the right direction, and
that this sort of fluctuation in progress was typical of treatment patterns for patients at FPH.
[162] I also heard evidence from Dr. Cook, a psychologist who took over Mr. Schoenborns anger
management counselling in January 2016 after Dr. Cooper accepted a new position elsewhere.
Dr. Cook testified that despite Mr. Schoenborns previous anger management treatment with
Dr. Cooper, the therapy needed to start at a relatively basic level. After a few months, Mr. Schoenborn
began to become disengaged from counselling, and eventually advised that he did not believe he had
an anger management problem and did not wish to continue therapy. He disclosed that he felt
overwhelmed by the treatment because anger was always on his mind. During this period there was
an increase in anger-related conflict between Mr. Schoenborn and another patient in his unit.
Ultimately in April 2016 Dr. Cook and Mr. Schoenborn decided to terminate therapy until
Mr. Schoenborn was prepared to engage in a more meaningful way. Overall, Mr. Schoenborn
experienced an escalation in the frequency and intensity of his anger during the time that Dr. Cook
saw him. Dr. Cook testified that in her experience Mr. Schoenborn was never physically aggressive
and expressed moderate levels of verbal aggression. Dr. Cook did acknowledge that there were some
challenges for her to establish the same level of therapeutic alliance that Mr. Schoenborn has with
Dr. Cooper, which may have contributed to his lack of progress during their sessions.
[163] Ms. Lee, a forensic nurse and member of Mr. Schoenborns interdisciplinary treatment team,
testified regarding Mr. Schoenborns conduct while at FPH. Ms. Lee described a number of incidents
in detail, which largely involved interpersonal conflicts with other patients over mundane issues such
as the use of the TV remote. Many of the incidents followed references by other patients to the
murders, including a number of occasions where Mr. Schoenborn was called a child killer. On some
occasions Mr. Schoenborn became demanding and verbally aggressive with staff and would pound on
the nursing station glass. He also occasionally slammed the door to his room and displayed
aggression by striking physical objects, for example by kicking chairs. While there were a few physical
encounters with other patients, these incidents were relatively mild and quickly resolved. I do not
propose to review each of the incidents of anger and aggression in which Mr. Schoenborn has been
involved at FPH. The following examples are illustrative of the type of conduct that continues to raise
concerns:
On April 1, 2013 Mr. Schoenborn insulted another patient and pushed him out of his way after
the patient called him a derogatory name and blocked his path. The next day Mr. Schoenborn
admitted pushing the patient and said he would have done the same thing if the incident had
occurred in the community.
On November 8, 2013 Mr. Schoenborn yelled at another patient for changing the channel on
the TV.
On February 10, 2014 Mr. Schoenborn got into a dispute with another patient with whom he
was having coffee and threatened to smash the patients head, possibly with a coffee pot. The
dispute apparently started after Mr. Schoenborns case was featured on the news.
On May 9, 2014 Mr. Schoenborn was seen kicking at another patient with his foot. Mr.
Schoenborn had been pacing back and forth in front of the other patient and continued to do so
until he was told to walk elsewhere.
On August 19, 2014 Mr. Schoenborn got into an argument with one of his friends in his unit
over the sharing of snack food. The argument escalated to name-calling, and the other patient
shoved the table towards Mr. Schoenborn, causing him to fall out of his chair. Mr. Schoenborn
then got up, chased the other patient, and pushed him with moderate force. Staff intervened
and Mr. Schoenborn quickly settled down. He admitted he should not have allowed the
argument to escalate to name-calling or pushing and he and the other patient ultimately
apologized and resumed their friendship.
On June 16, 2015 Mr. Schoenborn was involved in an altercation with another patient relating
to the repayment of certain money. Mr. Schoenborn admitted he threatened violence in order to
force the other patient to repay the money, and specifically admitted to telling the other patient
he would like to punch [his] lights out.
On January 11, 2016 Mr. Schoenborn banged on the medication window and at the nursing
station door, and said give me my fuckin meds and told a member of the staff she was
fuckin stupid.
On March 21, 2016, Mr. Schoenborn was involved in another altercation with a co-patient over
the television. The two of them squared up as if to fight and staff had to intervene to de-
escalate the situation.
[164] Ms. Lee stated that she did not consider Mr. Schoenborn especially difficult to manage.
Ms. Lees reports and her testimony establish that Mr. Schoenborns anger management and
personality issues remain the most pressing challenge for the treatment team. Dr. Hediger returned to
testify on June 2, 2017, and emphasized the core issue in terms of Mr. Schoenborns current
treatment is his anger. Dr. Hediger reports that Mr. Schoenborn admits he feels the need to defend
himself verbally, or physically if necessary, if his honour is provoked or it he feels abused, insulted or
disrespected. Recently Mr. Schoenborn re-engaged in anger management treatment with a staff
psychologist but it is too early in the treatment to comment on the progress. Dr. Hediger is clinically
guarded regarding the significance of the development for several reasons as explained in his
testimony on June 2, 2017:
Yeah, on the so Mr. Schoenborn is attending the psychology, he hasn't missed a single a
single session. So from that perspective, it's positive. I do, however, have I'm I'm clinically
guarded at this point for a few reasons. The one is this this is very early in the process, as I've
indicated; and secondly, I wonder around the timing of his agreement to engage in the in the
psychological intervention, because this was in the few months just prior to the review board
hearing. There's evidence in in various settings in the psychology report, and in discussions
that Mr. Schoenborn had with myself around engaging in some interventions for the benefit of
appearance, particularly before the review board.
[165] Dr. Hediger also described a recent treatment meeting with Mr. Schoenborn in which he
became intensely angry with Dr. Hediger for no apparent reason. Mr. Schoenborns anger escalated
very quickly and Dr. Hediger decided to terminate the meeting. Dr. Hediger testified he did not feel at
risk and since the incident there has been no evidence to suggest that Mr. Schoenborns mental state
has deteriorated.
[166] Dr. Hediger testified that Mr. Schoenborn has been consistently ambivalent regarding his
anger issues. While Mr. Schoenborn acknowledges that he has a short fuse, he completely lacks
insight into the magnitude of his anger problem. Dr. Hediger agreed that given Mr. Schoenborn has
had about 34 months of anger management treatment his lack of insight is a concern. Dr. Hediger
explained that Mr. Schoenborn is certain that anger did not play a role in the murders and that may be
one of the reasons he is resistant to anger management interventions.
[167] With respect to his living conditions at FPH, Mr. Schoenborn has been moved from the geriatric
unit where he was residing (as mentioned, for his own safety) to another unit with more age-
appropriate residents. While he still spends a considerable amount of time in his room, Dr. Hediger
believes overall the situation has improved. Mr. Schoenborn has never presented as a sociable
person but he has developed reasonable relationships with at least three individuals on the new unit.
Mr. Schoenborn generally presents as calm and settled although he still displays periodic anger
outbursts and irritability. However, Mr. Schoenborn responds well to redirection from staff.
Dr. Hediger also stated that there has been a reduction in the intensity of Mr. Schoenborns angry
responses to perceived slights, although there remains considerable room for improvement. Another
consideration is the ongoing concern for Mr. Schoenborns own safety due to threats from other
patients. While Mr. Schoenborn has ground privileges, staff need to ensure the situation is safe for him
before he can exercise those privileges. This too is a contributor to Ms. Schoenborns irritability.
[168] Having set out the factual background relevant to this application I will now proceed to consider
the Crowns application to have Mr. Schoenborn designated a HRA.
VI. THE HRA APPLICATION
[169] In determining whether Mr. Schoenborn should be designated a HRA under either ss. 672.64(1)
(a) or 1(b) I must consider all relevant evidence including the factors set out in s. 672.64(2), which I
will reproduce for ease of reference:
(2) In deciding whether to find that the accused is a high-risk accused, the court shall consider all
relevant evidence, including
(d) the past and expected course of the accuseds treatment, including the accuseds
willingness to follow treatment; and
(e) the opinions of experts who have examined the accused
[170] I will conduct my analysis by considering the relevant evidence as it pertains to each factor and
then determine whether, based on my interpretation of the legislation and my analysis of the factors,
there is a basis to conclude that the evidence establishes the requirement under s. 672.64(1)(a). If I
am not satisfied that it does, I must then consider whether the requirement under s. 672.64(1)(b) has
been established.
1. Consideration of the s. 672.64(2) Factors
(a) Nature and circumstances of the offence
[171] Before I commence my consideration of this factor I will address the submission by
Mr. Schoenborn that I should not consider the nature and circumstances of the offence in my analysis
under s. 672.64(1)(a) or (b). Essentially, Mr. Schoenborn says there are two reasons why this factor
should not be considered in determining his risk of future dangerousness: firstly, as reflected in the
NCRMD verdict, the murders were motivated by paranoid delusions which are no longer present; and
secondly, this factor focuses inappropriately on the severity of the offence which on its own is a poor
indicator of future dangerousness and may outweigh the consideration of the other factors and
relevant evidence given the extreme severity in this case.
[172] I refer to the passages in Winko in which McLachlin J. discussed the broad range of evidence
that the court or Review Board may consider when determining whether a NCR accused poses a
significant risk to the safety of the public. At para. 62 she stated:
5. The court or Review Board may have recourse to a broad range of evidence as it seeks to
determine whether the NCR accused poses a significant threat to the safety of the public. Such
evidence may include the past and expected course of the NCR accuseds treatment, if any, the
present state of the NCR accuseds medical condition, the NCR accuseds own plans for the
future, the support services existing for the NCR accused in the community, and the
assessments provided by experts who have examined the NCR accused. This list is not
exhaustive.
threat to public safety. The court or Review Board must at all times consider the circumstances
of the individual NCR accused before it.
[173] I note that many of the types of evidence mentioned in the excerpt above are specifically listed
in s. 672.64(2). In my view, when determining whether a NCR accused should be designated a HRA,
an equally broad range of evidence should be considered - including the nature and circumstances of
the offence. Mr. Schoenborn is correct to argue that this factor on its own cannot suffice as an
indication of future dangerousness, and that the nature and circumstances of the offence must include
a consideration of the NCR accuseds mental condition at the time of the offence, as well as any
subsequent changes. Whether the offence forms part of a pattern will be an important factor to
consider, as indicated in s. 672.64(2)(b) and the excerpt from Winko above. As contemplated in
Winko, the situation of each NCR accused must always be examined carefully within a flexible
scheme that considers the specific circumstances of the individual NCR accused. The need to
contextualize and look beyond the nature and circumstances of the offence does not, however, detract
from the relevance of this factor to the overall analysis, nor the clear direction from Parliament to
consider this factor in deciding whether to make a HRA finding.
[174] I will proceed with a consideration of the nature of the offences and then move onto
consideration the circumstances surrounding the commission of the offences including
Mr. Schoenborns mental condition at the time.
Nature of the Offences
[175] The murders of the three Schoenborn children as they lay sleeping in the safety and security of
their own home was a horrendous offence. As detailed earlier, the murders were conducted in a
planned and deliberate fashion. One by one Mr. Schoenborn applied lethal force to his children, killing
them. The murders were violent and brutal. Mr. Schoenborn then fled the scene of the crimes and
avoided detection for several days.
Circumstances of the Offences
[176] As discussed earlier in these reasons, at the time of the commission of the murders
Mr. Schoenborn was in a psychotic state brought on by his paranoid delusions. In the months and
weeks leading up to the murders, Mr. Schoenborns mental health deteriorated dramatically. He was
experiencing auditory and olfactory hallucinations, and his paranoia regarding Ms. Clarkes infidelity
and the perceived threat to his children escalated. As a consequence of his worsening mental health,
his relationship with Ms. Clarke also deteriorated. Shortly after the May 2007 sexual assault upon
Ms. Clarke, she and the children moved to Merritt. Although Mr. Schoenborn and Ms. Clarke were
estranged, he continued to visit with the children in Merritt, all while his personal situation was
becoming more desperate. His behaviour became increasingly erratic as demonstrated by the
incidents at the bus station and at the childrens school.
[177] By the evening of April 5, 2008, the delusions had escalated to the point that Mr. Schoenborn
believed the only way he could protect his children was to give them up. He proceeded to kill them in
the fashion I described earlier in these reasons and then positioned them - the two boys together and
his daughter in her own bed - as if they were sleeping peacefully. He then attempted to kill himself. I
accept Dr. OShaughnessys explanation that all of this behaviour was consistent with someone
suffering from a paranoid psychotic disorder.
Did anger play a role in the murders?
[178] In addition to the fact that Mr. Schoenborn was in a psychotic state, the Crown urges me to find
as part of the circumstances of the offence that Mr. Schoenborns anger played a role in the murders.
In support of its position, the Crown relies on the findings of Powers J. and the opinion evidence of
Dr. Hediger and Dr. Semrau.
[179] At para. 236 of the trial decision, Powers J. addressed the hypothesis that Mr. Schoenborn may
have acted out of anger towards Ms. Clarke and concluded:
[236] I have considered the hypothesis that Mr. Schoenborn may have acted out of anger
towards Ms. Clarke. However, there was no demonstration of anger in the week before the
children were killed. I also find it unlikely that Mr. Schoenborn would have killed his children out
of anger given the close and caring relationship that he had with his children. Mr. Schoenborn
was, if anything, over protective of his children. The irony is that the real danger to the children
was Mr. Schoenborn himself and none of the dangers that he imagined in his mind. It is possible
that he acted out of anger, but it is more likely than not that his actions were as a result of his
psychosis.
[180] It is clear from this passage that Powers J. considered the role of anger in the murders but
determined that the motivating factor was the protection of the children, not anger at them or
Ms. Clarke. In making the NCRMD finding, Powers J. determined it was more likely than not that the
murders were a direct result of Mr. Schoenborns psychosis. I do not find that the comments by
Powers J. support the inference the Crown invites me to draw.
[181] Similarly, I do not agree that Dr. Hedigers evidence supports the Crowns position that I should
find anger played a role in the murders. I have carefully considered Dr. Hedigers testimony as well as
his various reports and find that while he acknowledged that Mr. Schoenborn has a longstanding
problem with anger and aggressive behaviour, such that he could not rule out the role of anger in the
murders, he did not go as far as to express an opinion that anger in fact did play a role. Dr. Hediger
did not suggest Mr. Schoenborns anger issues dissipated during the time of the murders. In fact, he
found it difficult to imagine that anger did not have some role. However, he admitted that this was only
speculation on his part and he could not definitively state that anger played an actual role. Dr. Hediger
also stated that the treatment team speculated that anger may have played a role in the murders but
there was no definitive opinion in that regard.
[182] Dr. Semrau testified that Mr. Schoenborns delusions were the central reason for the murders
but explained that his anger and personality dysfunction increased the risk the paranoid delusions
that he was suffering from would actually be acted out in violent behaviour. Dr. Semrau characterized
the role of anger in the murders as unclear, but indicated that personality and anger management
problems make people with psychosis more likely to actually become violent. He opined that
Mr. Schoenborns personality and anger management problems did play some role in that they would
have increased the likelihood of him acting on his paranoid delusions, which were the primary reason
Mr. Schoenborn committed the murders. Indeed, Dr. Semraus evidence is more consistent with that of
Dr. OShaughnessy who opined that Mr. Schoenborns anger issues alone, without the psychosis,
would not have led him to kill the children. With respect to Mr. Schoenborns anger management
problems, Dr. OShaughnessy opined that the murders did not come because he was irritated or
impulsive or reacted to stress badly. This was the product of delusional thinking. He was not angry at
his children.
[183] Having considered the expert evidence together with the findings of Powers J., I do not find
there is a basis to infer that Mr. Schoenborns anger in fact played a significant causative role in the
murders. It is possible that Mr. Schoenborns anger contributed to the murders by increasing the
likelihood that he would act violently as a result of his paranoid delusions. It is also possible that the
delusions on their own, without any underlying anger issues, would have led to the same result.
Ultimately I am unable to conclude precisely what role anger played in the murders. What is clear is
that anger alone would not have led Mr. Schoenborn to kill the children; the primary reason he did so
was his psychosis and delusional thinking, which rendered him incapable of appreciating that it was
wrong to kill them - indeed, he came to believe that this was the only way to save them. Therefore, I
decline to infer that anger played a role in the murders as argued by the Crown. As discussed further
below, however, Mr. Schoenborns ongoing struggle with anger management and personality
dysfunction continues to pose a threat to the stability of his mental health and the treatment of his
delusional disorder. In assessing Mr. Schoenborns future dangerousness, it is impossible to isolate
the roles of his specific mental health and personality problems, given the impenetrable overlap and
interplay between the different aspects of his psychological makeup in terms of their effect on his
behaviour.
[184] As detailed earlier, the Court heard a considerable amount of evidence about Mr. Schoenborns
background from his siblings, other family members, and friends, in addition to police officers and
others who dealt with him throughout his life. What emerges is a picture of a man who has a
complicated mental condition. Firstly, he has a mental illness, which has been diagnosed as
delusional disorder. As the evidence demonstrates, this mental illness can cause Mr. Schoenborn to
deteriorate into a psychotic state. Secondly, he has significant anger management and personality
problems that have manifested in a host of anti-social behaviours and resulted in interpersonal
conflicts; angry, aggressive, and impulsive outbursts; verbal and sometimes physical confrontations
which were often related to excessive consumption of alcohol; and other criminal activity (again often
related to the consumption of alcohol). Thirdly, he has substance abuse issues which are presently in
remission but which can exacerbate his tendency to behave aggressively and violently.
[185] The Crown argues that the evidence establishes that Mr. Schoenborn has shown a pattern or
repetitive behaviour that includes the index offences. The Crown submits there are a number of
potential ways of characterizing or identifying the pattern, including (1) the murder of his three children
on their own, (2) a large pattern of chronic anger and aggression, and (3) a pattern of serious physical
violence associated with psychotic symptoms and psychosis. I will address each of these potential
patterns with regard to the legal requirements necessary to establish a pattern of repetitive behaviour.
As discussed earlier and as a reflected in Winko, the purpose of this inquiry is to determine if the index
offence is linked to an identifiable and recurring pattern of behaviour so as to indicate a risk of future
dangerousness resulting from the anticipated continuation of that behaviour.
(i) Do the three murders establish a pattern of repetitive behaviour?
[186] The Crown argues that the murders of the three Schoenborn children, when considered on
their own, satisfy the legal definition of a pattern of repetitive behaviour. Their position is that the
following factors serve to establish a pattern: all three murders involved Mr. Schoenborns children
who had been left in his care; each murder was motivated by psychotic delusions; each murder was
conducted away from the other two children; each murder involved the application of force; and each
child was positioned after the murder to appear as if they were sleeping.
[187] After an exhaustive review of dangerous offender case law concerning what constitutes
repetitive behaviour, I am not persuaded that there is any support for the Crowns position that three
offences committed in rapid succession as part of a single event or transaction can constitute a
pattern of repetitive behaviour. The Crown cited the case of R. v. Monias, 2014 ABQB 147 [Monias], in
support of this position. In that case the court was dealing with an accused who had committed break
and enter and robbery at two different houses, where he assaulted both victims, on the same day.
While the offences both involved the robbery and assault of elderly victims in their own homes, the
court did not consider whether the two incidents themselves represented a pattern of repetitive
behavior. Similarly, in the case R. v. McDowell, 2002 ABPC 199 [McDowell], the court was dealing
with an accused who had committed several offences with different victims over a period of
approximately one month. There was no consideration by the court in either McDowell or Monias as to
whether one incident involving several offences was sufficient to constitute a pattern.
[188] I recognize that there are similarities among the three murders in terms of the victims, the type
of conduct, and the motivation for the murders as outlined by the Crown, but I am not satisfied that the
three murders, when viewed on their own, are capable of constituting a pattern of repetitive behaviour
as contemplated in 672.64(2). The murders were committed in rapid succession and were part of a
single, discrete event in which Mr. Schoenborn resolved to kill them in order to save them from what
he then believed would be a life of sexual abuse and drug dependency. Without any time between the
offences for Mr. Schoenborn to essentially stop and do anything else before returning to the
homicides, I find that the murders must be treated as a single transaction rather than three separate
elements of a repetitive pattern as that concept is understood at law. I find support for my conclusion
in Neve, where at para. 113 the court held that because the pattern of past behaviour must be
repetitive (s. 753(a)(i)) evidence of one episode of violence or aggression will not suffice.
[189] Having concluded that the three murders do not constitute a pattern of repetitive behaviour
when considered on their own, I will proceed to consider the other patterns suggested by the Crown.
(ii) Do the murders form part of a large pattern of chronic aggressive behaviour?
[190] The Crown argues the index offence is the last straw in a long line of increasingly serious
violence fueled by uncontrollable anger and aggression. In support of its position the Crown relies on
Mr. Schoenborns criminal record together with evidence of a litany of conflicts with his family
members, members of the public leading up to the murders, and continuing more recently with staff
members and other patients at FPH. As detailed earlier, during his teens and early twenties
Mr. Schoenborn acquired 19 criminal convictions. Based on the types of offences of which he was
convicted, and the evidence I heard regarding the circumstances of some of these convictions,
including the incident with Cst. Thomsen, I do not view this conduct as being sufficiently similar to the
murders such that they can be said to form part of the same pattern of behaviour. The type of conduct,
the general identities of the victims, and the motivations behind the offences are all completely
unrelated.
[191] I have also reviewed the litany of unpleasant and disturbing encounters between
Mr. Schoenborn and his various family members. I find that these encounters are further evidence of
Mr. Schoenborns anger management and personality problems. Accepting that some of these
incidents can be considered criminal in nature, and recognizing that they do involve family members,
they are most certainly distinct from the index offences in terms of the type of conduct involved and
the underlying motivations. Furthermore, as with the criminal convictions he received when he was
younger, none of these incidents resulted from Mr. Schoenborns delusional disorder or psychosis. I
am supported in my view by the opinion of Dr. Hart who described Mr. Schoenborns behaviour
between 1993 and 2007 as follows:
There were indications that he was aggressive or threatening, but I saw no indication that he
engaged in any act that caused physical injury to somebody, or that was -- or significant physical
injury, or that was likely to have caused serious physical injury or seemed to be intended to
cause serious physical injury. It was - I would call it more of the common or low-level violence
that is quite ubiquitous in society generally, and its quite common in the histories of people who
have a history of violence, but nothing that I would have called, on its own, remarkable for
seriousness.
[192] Dr. Hart characterized Mr. Schoenborns history of violence as having two distinct patterns - the
first being chronic and more or less stable and the second being more acute. Dr. Hart described the
first pattern, which I find encompasses the large pattern of chronic aggressive behaviour at issue, as
follows:
one is more predictable or routine, it seems to reflect his general problems coping with other
people, and in those cases we get lots of acts of threatening behaviour, or threatening
statements, and some acts of physical violence, albeit of mild to moderate severity, and that has
been a very consistent pattern throughout his life.
[193] I have also considered the evidence regarding Mr. Schoenborns conduct at FPH. The evidence
establishes that Mr. Schoenborn continues to display anger management issues at FPH resulting in
altercations with both co-patients and staff. Many of the incidents involve disagreements about the TV
or other interpersonal conflicts with patients. Others involve conflict with staff members which can be
characterized as low level disagreements. There are occasions where incidents become physical but
it is important to note that on those occasions Mr. Schoenborn has usually been the victim. In fact,
there is an ongoing assessment of Mr. Schoenborns safety due past assaults and continuing threats
against him. Overall, in my view the incidents at FPH are consistent with Mr. Schoenborns long
history of aggression as described by Dr. Hart. Indeed, the medical experts all agree that
Mr. Schoenborn has a constellation of anger and personality problems.
[194] Counsel for Mr. Schoenborn acknowledges that he has a long history of angry, aggressive, and
anti-social behaviour. Counsel also acknowledges that Mr. Schoenborn has serious anger
management problems combined with myriad personality issues. However, they maintain that this
pattern is separate and apart from the behaviour that resulted in the murders.
[195] I agree with counsel for Mr. Schoenborn. I am satisfied that the evidence has established a
pattern of angry and aggressive behaviour which manifests itself in a variety of conduct ranging from
interpersonal conflicts, verbal outburst, and on some occasions physical altercations. This behaviour
includes threats, posturing, and intimidation and persists to this day at FPH, albeit to a lesser degree
than when he was first admitted there. I also agree with counsel that the murders do not form a part of
this pattern. As Dr. Hart explained, this chronic anger and personality problem is different from
Mr. Schoenborns more acute pattern which consists of more serious violence thats clearly linked to
the onset of his psychotic symptoms. I turn now to a consideration of the third pattern identified by the
Crown.
(iii) Do the murders form part of a pattern of serious physical violence associated with psychotic
symptoms and psychosis?
[196] The Crown argues that the murders and the assaults on Ms. Clarke have a number of
similarities in that they all involved serious physical assaults of family members; the victims were
vulnerable and defenceless; and they all resulted from Mr. Schoenborns psychotic symptoms and
psychosis.
[197] I accept the opinion evidence that at the time of the assaults on Ms. Clarke in the mid-2000s,
Mr. Schoenborn was exhibiting signs of delusional thinking and was increasingly psychotic. He was
fixated on his delusional belief that Ms. Clarke was being unfaithful and that she was involved with
people in the drug culture who posed a serious danger to his children. As described earlier, in the
days leading up to the murders Mr. Schoenborns mental condition was deteriorating as the incidents
at the Kamloops bus station and childrens school demonstrate. Dr. OShaughnessy opined that this
behaviour was consistent with someone suffering from the onset of psychosis.
[198] I agree with the Crown that there are a number of key similarities between the murders and the
assaults upon Ms. Clarke, including the sexual assault that resulted in the imposition of a peace bond
- all were perpetrated on a vulnerable family member from a position of trust; all involved violence and
use of force; and all were motivated by delusional beliefs during active psychosis. However, there are
also some significant differences - the murders were planned and deliberate while the assaults were
spontaneous and reactive. The murders clearly involved more serious conduct than the assaults upon
Ms. Clarke, although this in no way detracts from the seriousness of the assaults. Additionally, the
murders were motivated by a desire to protect his children while the assaults arose from jealousy. It is
also significant that, while they were all part of Mr. Schoenborns family, the murders were committed
against the children while the assaults were perpetrated on Ms. Clarke, his spouse.
[199] Despite the differences between the incidents, I am prepared to accept that there are sufficient
similarities between the assaults on Ms. Clarke and the murders to constitute a pattern of repetitive
behaviour. These incidents all shared the essential characteristics of being caused by
Mr. Schoenborns delusional disorder and active psychosis and involving the infliction of serious
physical violence on members of his own family.
[200] However, even if I am wrong on this point, the presence or absence of a pattern is not the
determining factor in my analysis. Indeed, the more important consideration on this application is
whether there is an evidentiary basis to believe this behaviour will persist in the future such that it
indicates a risk of future dangerousness. In determining this issue I must consider the evidence
relating to Mr. Schoenborns mental condition and treatment since the time of the offences.
[201] The most recent assessments of Mr. Schoenborns mental condition were provided by
Dr. Hediger, his current treating psychiatrist, and Dr. OShaughnessy, a psychiatrist who met with
Mr. Schoenborn most recently in August 2016. Generally speaking, their opinions are consistent with
the opinions provided by Dr. Lohrasbe, Dr. Brink, Dr. Semrau, and Dr. Hart, who reviewed extensive
materials in respect of this case but who did not actually meet with Mr. Schoenborn. As will be
discussed, all agree with the diagnoses of (1) paranoid psychotic disorder or delusional disorder; (2)
personality and anger problems; and (3) substance abuse problems. The precise terminology the
doctors used to describe Mr. Schoenborns mental disorder was somewhat different; however these
discrepancies appear to be largely immaterial as the doctors generally described the same
symptomology and treatment prospects.
Opinion of Dr. Hediger
[202] As stated earlier, Dr. Hediger has been responsible for Mr. Schoenborns treatment since 2012
when he assumed responsibility of the case from Dr. Brink. Dr. Hedigers diagnoses remains
unchanged - (1) psychosis and delusional disorder; (2) paranoid personality traits, narcissistic traits,
and anger management issues; and (3) substance abuse disorder. In addition to Dr. Hedigers
testimony I have had the benefit of reading the reports he prepared for Mr. Schoenborns annual
Review Board hearing including the most recent report dated April 28, 2017. As set out earlier,
Dr. Hediger testified that Mr. Schoenborn is not suffering from symptoms of a delusional disorder,
presents as stable, and is compliant with his medications. Dr. Hediger conducted a risk assessment
using the HCR-20 assessment tool and concluded that Mr. Schoenborns risk stems from several
potential causes and is clearly multifactorial. It is Mr. Schoenborns anger management and related
personality issues that currently pose the greatest risk. In his latest report, Dr. Hediger identified the
following current treatment and management needs for Mr. Schoenborn:
(a) ongoing antipsychotic medications in order to stabilize and maintain his mental status;
(b) drug and alcohol monitoring through urine drug screens in order to ensure continued
abstinence from substances;
(c) drug and alcohol counselling services;
(d) psychological and counselling interventions for anger management;
(e) ongoing assessment, support, encouragement and supervision to assist him in re-engaging
with the needed treatment interventions; and
(f) close supervision, control and support due to an increased risk of violence to him.
[203] Dr. Hedigers most recent recommendation as to the appropriate disposition is that
Mr. Schoenborn should remain under detention at FPH.
Opinion of Dr. OShaughnessy
[204] Dr. OShaughnessy met with Mr. Schoenborn on August 17, 2016 for two hours. This was in
addition to the two interviews he conducted shortly after his arrest and before his trial for the murders.
He also reviewed various reports and documentation pertaining to Mr. Schoenborns treatment at
FPH. Dr. OShaughnessys assessment of Mr. Schoenborns current mental condition aligns with that
of Dr. Hediger.
[205] Dr. Shaughnessy noted that Mr. Schoenborn has made substantial improvement since he first
examined him in 2008. He showed good insight into his mental illness. The substance use disorder is
controlled given the secure setting at FPH but it remains a significant risk factor that may trigger or
contribute to further psychotic symptoms in the event of a relapse. In addition, he continues to have
anger management issues although he notes the majority of his episodes of aggression are verbal
with occasional posturing.
[206] In Dr. OShaughnessys opinion the most important risk factor is his mental disorder. As he
explained in his report:
Individuals with this type of disorder history are highly susceptible to stress, especially
interpersonal stresses. In this instance, he has significant difficulties with interpersonal
relationships that are well documented and in large measure reflect his underlying paranoid
personality traits as well as a tendency towards concreteness of thought, impulsivity and limited
social skills. I agree with my colleagues in their scenarios that were this man to be allowed in the
community there is a significant risk of hostile confrontations initiated by others.
[207] Dr. OShaughnessy went on to explain why it was of paramount importance to treat
Mr. Schoenborns personality traits, anger management difficulties, social skill issues, and
interpersonal readiness problems. As he explained in his report:
not because I think they themselves will lead to any significant risk of violence to others but
rather failing to do so will make him more likely to experience the stressors that may destabilize
his mental disorder.
[208] Dr. OShaughnessy testified that Mr. Schoenborn generally appears to have made some
progress with his personality issues. He explained the best measure of this progress is the number of
incidents of violence over time, which have diminished substantially in terms of frequency and
severity. He has not demonstrated any significant violent behaviour in the last few years. He has been
pummelled and badly beaten up on a couple of occasions and did not respond. There have been
other times when he has sought help or support from hospital staff or backed down when challenged
by difficult patients. Overall, theres been a substantial improvement in his impulse control, but not
enough that warrants increasing his freedoms
[209] Dr. OShaughnessy reiterated his earlier view that, but for the onset of Mr. Schoenborns
psychotic illness, he never would have engaged in the violent behaviours that occurred in 2007 and
2008. In terms of risk of future violent behaviour, Dr. Shaughnessy concluded:
It is clear from my review of his history and the dates that the most robust predictor of his
violence was his mental disorder. The fact that he is currently controlled on medications reduces
his risk of future violence behaviour substantially.
[210] Dr. OShaughnessy testified whats clear is that hes got a chronic condition that requires
ongoing treatment and he ought to never discontinue antipsychotic medications.
[211] Dr. OShaughnessy performed a HCR-20 risk assessment with respect to Mr. Schoenborn after
meeting with him in August 2016. In his report, Dr. OShaughnessy decided not to rate
Mr. Schoenborn on the Risk Management Scale because it was his opinion that Mr. Schoenborn is not
currently in a position for release and no such plans have been undertaken. He did agree with the
most recent assessment of Dr. Hediger that Mr. Schoenborn continues to be a significant risk and will
likely experience future problems with his living situation and personal support, as well as difficulties in
coping with stress, and will need significant planning prior to any release in the distant future. Dr. Hart
and Dr. Semrau also assessed Mr. Schoenborn using the HCR-20 and determined that he was at the
higher end of the spectrum in terms of future risk. The use of the HCR-20 and its relevance to this
application are discussed further below in these reasons.
(d) The past and expected course of Mr. Schoenborns treatment, including his
willingness to follow treatment
[212] Mr. Schoenborns two treating psychologists - Dr. Cooper and Dr. Cook - as well as his forensic
nurse, Ms. Lee, provided the details of his past and expected course of treatment, in addition to
Dr. Hedigers evidence which I discussed earlier.
Evidence of Ms. Lee
[213] As referenced earlier, Ms. Lee is a forensic nurse and a member of Mr. Schoenborns
interdisciplinary treatment team. One of her duties was to prepare annual reports for the Review
Board which documented Mr. Schoenborns conduct while at FPH. Those reports together with
Ms. Lees chart notes were filed as exhibits at this hearing. During her testimony Ms. Lee described in
considerable detail the various incidents in which Mr. Schoenborn has been involved at the hospital
and which the Crown characterizes as incidents of his continued aggressive behaviour. Despite these
various incidents, Ms. Lee stated that she did not consider Mr. Schoenborn difficult to manage. As
discussed earlier, there has been a range of incidents that need to be considered in their proper
context. I agree with Dr. Harts assessment that these conflicts with other patients and occasionally
staff were mild to moderate in severity and consistent with Mr. Schoenborns pattern of less serious
aggression and interpersonal conflict throughout his life. Ms. Lee also described the various
recreational and treatment-based programs in which Mr. Schoenborn has participated over the years.
Ms. Lees reports and her testimony establish that Mr. Schoenborns anger management issues
remain the most pressing challenge for treatment. She testified that in April 2016 Mr. Schoenborn
terminated anger management therapy. (As discussed below, Dr. Hediger testified that
Mr. Schoenborn recently re-engaged in that therapy.) Mr. Lee confirmed that Mr. Schoenborn
continued to participate in one-on-one sessions with the Chaplain and once a week he has sessions
with a Peer Support worker.
Opinion of Dr. Cooper
[214] Dr. Cooper was qualified as an expert in the field of forensic psychology to give opinion
evidence with respect to risk assessments and anger management treatment. Dr. Cooper was
Mr. Schoenborns treating psychologist from July 2013 until 2015. Dr. Cooper prepared reports in
February 2014, February 2015, and August 2015 for Mr. Schoenborns Review Board hearings Those
reports were filed as exhibits at this hearing.
[215] In July 2013, Mr. Schoenborn was referred to Dr. Cooper, primarily for anger management and
secondarily to address issues surrounding the index offences. The goal was to have Mr. Schoenborn
develop insight into the precipitating factors. At the time of the referral, Mr. Schoenborns treatment
team was of the opinion that anger may have played a role in the murders but Mr. Schoenborn had
consistently denied that anger was a precipitant. Understanding the role of anger would help inform
risk prediction, help develop treatment or management strategies, and help Mr. Schoenborn develop
insight.
[216] At the beginning of treatment, Mr. Schoenborn had already developed some insight into his
anger management problems as he had participated in a number of treatment programs since arriving
at FPH. Mr. Schoenborn claimed he didnt have an anger management problem but did need
assistance in dealing with situations in the moment where he experienced negative emotions such
as anger. He wanted assistance in handling these moments at the time rather than discussing them
afterward.
[217] After a review of documentary material and preliminary discussions with Mr. Schoenborn,
Dr. Cooper determined that he had longstanding, severe anger management problems which were
considerable and resistant to change, and exacerbated by a substance abuse disorder.
[218] In the first year Dr. Cooper held 25 counselling sessions focused on anger management
treatment. In his February 2015 report, Dr. Cooper indicated that Mr. Schoenborn had progressed well
in therapy, however he nevertheless concluded that Mr. Schoenborn lacked motivation throughout his
sessions. Dr. Cooper noted a reduction in the intensity but not the frequency of Mr. Schoenborns
anger-related aggressive incidents, and indicated that the reduction in intensity could have been due
to his increased use of anger management therapy or because a co-patient with whom he had a
history of conflict was removed from the ward.
[219] Dr. Cooper also reported that in May 2015, the day after the Review Board ordered
Mr. Schoenborns continued detention but granted his request to have discretionary escorted
community access, Mr. Schoenborn was involved in an incident in which staff reported he threatened
to punch a patient who owed him money relating to their purchase of some food. Mr. Schoenborn
denied threatening the patient but voiced some violent ideation about wanting to hurt him. Dr. Cooper
said this was concerning, although it was positive that he didnt actually hurt the patient or use
violence.
[220] Overall, Dr. Cooper was of the opinion that Mr. Schoenborn had progressed well in therapy
during the second year; however, he continued to have cognitive distortions and motivational issues.
Dr. Cooper recommended that he continue with a considerable amount of further anger management
therapy.
[221] Dr. Cooper had to discontinue his treatment of Mr. Schoenborn in August 2015 when he
accepted a position outside the Lower Mainland. He testified that he was satisfied that
Mr. Schoenborn had learned anger management techniques and internalized them to a degree but
was not satisfied that he had completed treatment. In his final report, Dr. Cooper concluded that
Mr. Schoenborn had progressed well despite some motivational challenges and recommended that he
continue psychological therapy focused primarily on anger management for months if not years. Upon
Dr. Coopers departure from FPH, Mr. Schoenborns file was transferred to Dr. Cook. Dr. Cooper
testified that Mr. Schoenborn was displeased that he would have to start again with another therapist
and that the sessions might be delayed due to the new doctors availability; however he was
understanding of the situation.
Opinion of Dr. Cook
[222] Earlier in these reasons I summarized Dr. Cooks evidence. Dr. Cook was qualified as an expert
in the field of forensic psychology to give opinion evidence in the area of anger management
treatment. Dr. Cook took over the file from Dr. Cooper and began treating Mr. Schoenborn for anger
management in January 2016. She met Mr. Schoenborn for ten weekly sessions and found that
despite his previous treatment sessions with Dr. Cooper they had to begin therapy at a fairly basic
level. Although her rapport with Mr. Schoenborn was good she was not able to establish the same
level of therapeutic alliance as Dr. Cooper had. As discussed earlier, Dr. Cook noted Mr. Schoenborns
lack of motivation to fully engage in the treatment program. Eventually, after consultation with the
treatment team she decided to terminate therapy until Mr. Schoenborn was ready to participate in a
meaningful way.
[223] As discussed earlier, Dr. Hediger reports that Mr. Schoenborn recently re-engaged in anger
management therapy sessions with a staff psychologist; however it is too early in the treatment to
comment on his progress. Dr. Hediger also noted Mr. Schoenborns decision to re-engage with
therapy was a few months prior to the next Review Board hearing. Similarly, before Dr. Cook decided
to terminate therapy, Mr. Schoenborn advised her he was willing to continue in therapy until his
Review Board hearing, but on a less frequent basis. Dr. Hediger explained that Mr. Schoenborns
willingness to reveal why he wished to continue therapy is consistent with the fact that he is a
concrete thinker and someone who is largely incapable of manipulation. According to Dr. Hediger,
Mr. Schoenborn is not one to engage in impression management; rather his motivation is transparent.
The psychiatric experts generally agreed that there is nothing inherently wrong in wishing to present
well in front of the Review Board, although more genuine motivations for taking anger management
therapy would certainly indicate better treatment prospects over the long term.
Expected Course of Mr. Schoenborns Treatment
[224] As stated earlier, Dr. Hediger reported that Mr. Schoenborn has re-engaged in anger
management therapy but it was too early to make any type of clinical assessment of his progress. It is
the shared opinion of all the medical experts who have assessed Mr. Schoenborn that it is essential
for him to receive further treatment to deal with his anger management issue and related personality
disorder traits. For example, Dr. OShaughnessy stated that Mr. Schoenborn needs a lot more
cognitive behavioural interventions and it is going to take a long time because frankly he is a slow
learner. Dr. Hart echoed that view, stating that given the chronicity, breadth and severity of
Mr. Schoenborns personality problems, it will likely take one to two years of regular treatments to
demonstrate substantial and reliable improvement. With respect to his mental disorder, all of the
medical experts agree Mr. Schoenborn must continue to take antipsychotic medication to treat his
delusional disorder and prevent the recurrence of psychotic episodes.
[225] In addition to the recent examinations of Mr. Schoenborn by Dr. Hediger and
Dr. OShaughnessy, whose evidence I discussed earlier, there were also previous examinations
performed by Dr. Lohrasbe and Dr. Brink. The results of these earlier examinations assist in
understanding the advancement of Mr. Schoenborns mental illness and its subsequent treatment. All
four experts agree on the main diagnoses. The results of these examinations also inform the current
risk that Mr. Schoenborn presents to members of the public.
Opinion of Dr. Lohrasbe
[226] As discussed earlier, Dr. Lohrasbe interviewed Mr. Schoenborn on August 28, 2009 and
September 4, 2009 and produced a report for trial at the request of the Crown counsel. He testified at
the trial and has had no dealings with Mr. Schoenborn since that time, so his assessment of
Mr. Schoenborn pertains to the period prior to the NCRMD finding and Mr. Schoenborns subsequent
treatment at FPH.
[227] Dr. Lohrasbe described Mr. Schoenborns mental disorder in terms of his symptoms, which he
described as spanning the full range from hallucinations to delusions, suggesting possible diagnoses
of paranoid schizophrenia or delusional disorder. Dr. Lohrasbe testified that a more precise diagnosis
would only be possible after repeated assessments over a long period of time. In his report
Dr. Lohrasbe described Mr. Schoenborn as someone who demonstrated clear features of psychosis
as well as a long standing problem with alcohol and marihuana use with severe personality
disorders, the most prominent being those of paranoid personality disorder.
[228] Dr. Lohrasbe described Mr. Schoenborn as having features of numerous personality disorders,
including paranoid personality disorder, narcissistic personality disorder, borderline personality
disorder, and antisocial personality disorder. He testified that Mr. Schoenborns dominant emotion is
anger, and that this is a function of his personality rather than psychosis.
Opinion of Dr. Brink
[229] Dr. Brink was called by counsel for Mr. Schoenborn with respect to the s. 7 Charter challenge to
the HRA legislation. However, as he was Mr. Schoenborns treating psychiatrist upon his admission to
FPH in February 2010 until 2012, I consider his evidence pertaining to Mr. Schoenborns mental
condition relevant, especially regarding his progress since he first arrived at FPH. Dr. Brink prepared
two comprehensive reports dated March 26, 2010 and March 18, 2011 which he submitted to the
Review Board. He also gave evidence at the Review Board hearings for which the reports were
prepared. During his testimony before me he was cross-examined by Crown counsel on the contents
of those two reports and his Review Board testimony.
[230] Early in his treatment Dr. Brink diagnosed Mr. Schoenborn with delusional disorder and
premorbid paranoid personality disorder. In his March 26, 2010 report he stated much needs to be
done to clarify the respective role and influence of underlying personality disorder versus psychotic
illness on his presentation, beliefs and actions. He further recommended that Mr. Schoenborns
response to medication be monitored, pointing out that Mr. Schoenborn had just started to take
antipsychotic medication. Dr. Brink concluded that Mr. Schoenborn was afflicted with a major mental
illness that renders him vulnerable to interpreting every day and otherwise innocuous comments and
events in a paranoid and persecutory manner. Dr. Brink recommended a custodial disposition.
[231] A year later in his March 18, 2011 report, Dr. Brink noted Mr. Schoenborns significant
improvement over the past year. His improvement was attributed to a combination of antipsychotic
medication, strict limit setting and a supportive approach. Dr. Brink testified that in his view
Mr. Schoenborns delusional disorder was longstanding. Dr. Brink also identified a constellation of
underlying personality problems including anger control difficulties. Dr. Brink recommended a custodial
disposition with a provision for discretionary escorted community access. As discussed earlier, the
Review Board issued a custodial disposition with a condition allowing the Director to grant supervised,
escorted assessment outings. No such escorted outings ever took place and the recommendation was
quickly rescinded, with Mr. Schoenborns consent.
(f) Other evidence
Risk Assessments using the HCR-20 Violence Assessment Tool
[232] In addition to the risk assessments conducted by Dr. Hediger and Dr. OShaughnessy, I also
heard evidence from Dr. Semrau and Dr. Hart who both conduced risk assessments using file
materials at the Crowns request. They conducted their risk assessments using the HCR-20 violence
assessment tool, which was also utilized by Dr. Hediger and Dr. OShaughnessy. By way of brief
explanation, the HCR-20 is a set of structured professional guidelines for assessing risk for general
violence. As explained by Dr. Hart, the HCR-20 is an aide memoire or checklist designed to assist
clinical evaluations of risk for general violence. Dr. Semrau explained that the assignment of an overall
rating of high/urgent within the HCR-20 case prioritization analysis does not equate with a finding of
high/urgent risk for future violence. Rather, it is a method of ranking the person for case management
services and treatment services within an institution and conveys nothing in the way of clinical
diagnosis or finding.
Opinion of Dr. Semrau
[233] Dr. Semrau was qualified as an expert to give opinion evidence with respect to psychiatric
diagnoses, risk assessment, and treatment. Dr. Semrau did not have an opportunity to interview
Mr. Schoenborn, which he acknowledged as a limitation on the scope and reliability of his opinion.
However, he did review extensive materials, including medical reports from various hospitals and
psychiatric assessments by Drs. Lohrasbe, OShaughnessy, Brink, and Hediger as well as psychology
reports from Dr. Cooper. Dr. Semrau completed a set of reports on August 11 and 19, 2015 and a
supplemental report dated April 29, 2016 after reviewing additional medical reports and records from
FPH for the period of February 2010 to February 2016.
[234] Dr. Semrau agreed that Mr. Schoenborn has a paranoid psychotic disorder, substance abuse
problems, and personality and anger problems. He characterized Mr. Schoenborns mental disorder
as a paranoid psychotic disorder, explaining that he did not necessarily regard diagnoses of
delusional disorder or paranoid schizophrenia to be meaningfully distinct because their symptoms,
which are the real concern, substantially overlap. Dr. Semrau testified that he expects Mr. Schoenborn
to have this condition for the rest of his life, and would expect a psychotic relapse within a matter of
weeks to months if he stopped taking his medication.
[235] Dr. Semrau testified that Mr. Schoenborn exhibits antisocial, narcissistic, and paranoid
personality traits. He explained that paranoid personality traits are different from paranoid psychosis in
that they are a milder form of mistrust as opposed to fixed delusions. Mr. Schoenborn has had both
problems. Dr. Semrau also testified that Mr. Schoenborn has a deficient control mechanism for his
anger, and described his anger problem as moderate to severe taking into account both the frequency
and the intensity of the anger-related incidents that persist at FPH. As stated earlier, he testified that
the role of anger in the homicides is unclear; however in his opinion Mr. Schoenborns anger and
personality dysfunction played a role by increasing the risk that Mr. Schoenborn would act out violently
on his paranoid delusions. Dr. Semrau explained that Mr. Schoenborns personality constellation
gives him far more difficulty getting along with other people, and as a result he develops anger at a
much higher rate than someone with a healthy personality. With respect to Mr. Schoenborns offending
history, Dr. Semrau testified the majority of the offences are reflective of his personality and anger
problems rather than indicative of paranoid psychosis. Dr. Semrau also testified that Mr. Schoenborn
has a moderate substance abuse problem, which will be difficult to treat over the long term, despite
his abstinence in the controlled conditions of his detention at FPH.
[236] With respect to the utility of risk assessments, Dr. Semrau emphasized that ratings should not
be considered as a clinical diagnosis of ones risk for future violence. Rather, they are useful for
treatment priority purposes. Dr. Semrau was reluctant to assign a level of risk to Mr. Schoenborn for
this reason.
Opinion of Dr. Hart
[237] Early in this ruling I referred to Dr. Harts opinion regarding Mr. Schoenborns patterns of
behaviour - one being chronic, low level violence related to anger and personality issues; and the
other being more acute, serious physical violence caused by psychosis and his delusional disorder.
Dr. Hart did not have an opportunity to interview Mr. Schoenborn but like Dr. Semrau he did review an
extensive body of material including the various medical records from FPH and the reports and
opinions of the other medical professionals. Dr. Hart testified that Mr. Schoenborns mental disorder
was not causally related to most of his violence; however it was associated with the homicides.
[238] With respect to the impact of Mr. Schoenborns mental illness on his use of violence in the
months preceding the murders, Dr. Hart opined there is good evidence that any physical violence had
been directly related to the psychosis or to the onset or early stages of psychosis. This aligns with
the opinion of Dr. Hediger, Dr. OShaughnessy, and Dr. Semrau.
[239] Dr. Hart stated that Mr. Schoenborns personality problems, and specifically his lack of control
over his responses to anger and frustration, would have to be addressed before he could be
considered for release. He said that these were a motivating factor in Mr. Schoenborns past violent
behaviour in reference to Mr. Schoenborns less serious offending history prior to the homicides, and
that they would pose a persistent problem even if Mr. Schoenborns psychosis was successfully
treated.
[240] Dr. Hart testified that Mr. Schoenborn has substance use problems that must be addressed
before he can be considered for release, and stated that institutional remission does not translate to
effective self-control in the community.
[241] Dr. Hart concluded given the chronicity, breadth, and severity of Mr. Schoenborns personality
problems, it will likely take one to two years of regular treatment to demonstrate substantial and
reliable improvement, and until then one cannot evaluate the extent to which his violence risk may
be reduced as a function of treatment gains.
VII. ANALYSIS
[242] Having considered all relevant evidence and the factors set out in s. 672.64(2), I turn now to my
analysis as to whether the evidence supports a HRA designation under s. 672.64(1)(a) or (b). The
parties agree that Mr. Schoenborn meets the threshold requirements of having been found NCRMD
for a serious personal injury offence, as defined in s.672.81(1.3), committed when he was 18 years of
age or older and in respect of which he has not received a absolute discharge.
[243] In order to conduct my analysis I will rely on the following findings of fact:
1. The murders were brutal in nature.
2. Mr. Schoenborn committed the murders while he was suffering from psychosis brought on by
his delusional disorder which is a major mental illness.
3. The murders were motivated by Mr. Schoenborns desire to protect his children from what he
believed would be a life of sexual abuse and drug addiction, not anger at the children or
Ms. Clarke.
4. In 2007 and 2008 Mr. Schoenborn exhibited a pattern of engaging in serious violence against
members of his family due to paranoid delusions. The murders formed a part of this pattern.
5. Mr. Schoenborns mental illness (in particular, his symptoms of paranoid delusions and
psychosis) is in remission; he has gained insight into his mental illness and is compliant with his
medication. Continued medication is critical for the long-term management of Mr. Schoenborns
longstanding delusional disorder.
6. Mr. Schoenborn has a pattern of repetitive behaviour consisting of interpersonal conflicts, angry
and aggressive outbursts, and verbal and sometimes physical confrontation. This pattern is
chronic. The murders do not form a part of this pattern of behaviour. The pattern has persisted
while Mr. Schoenborn has been detained at FPH, although he has made some improvements
in terms of reducing the frequency and intensity of his anger-related incidents.
7. The key challenge in respect of Mr. Schoenborns treatment are his anger management and
overall personality problems, which are chronic and will require long term treatment before he
can be re-integrated into society.
1. s. 672.64(1)(a)
[244] As stated earlier, under s. 672.64(1)(a) I must be satisfied that there is a high degree of
probability that Mr. Schoenborn will cause, attempt to cause, or threaten to cause bodily harm,
exposing another person to, at a minimum, serious physical or psychological harm as contemplated in
s. 672.5401.
[245] In support of its application to have Mr. Schoenborn designated a HRA under s. 672.64(1)(a),
the Crown relies on a number of factors including the extreme violence of the index offences; the fact
that the index offences formed part of a pattern of violent behaviour; Mr. Schoenborns chronic mental
health issues; and the marginal prospects for future treatment of his personality and anger
management problems.
[246] The Crown also relies on the fact that the psychiatric experts HCR-20 risk assessments of
Mr. Schoenborn generally found him to be a high or significant risk for violence in the future. While this
has some relevance, it is important that the court undertake its own risk assessment, having regard to
the criteria in s. 672.64(1) and the factors in s. 672.64(2), in determining whether to find an accused to
be a HRA. As Dr. Semrau stated, although we have these risk assessment methods, no court should
regard them as being highly reliable or highly scientific. The HCR-20 is used in the forensic
psychiatric field to determine which patients require the greatest allocation of case management and
treatment resources. It therefore assesses and quantifies risk in a fundamentally different way than
the HRA regime, where the concern is whether a NCR accused poses a sufficient threat to the safety
of the public, according to specific legal criteria, so as to warrant a deprivation of his or her liberty to
achieve the goal of public safety. Simply put, the HCR-20 rating is one factor I must consider when
assessing the risk Mr. Schoenborn presents to members of the public, but it is far from determinative
of the issue. In addition to assisting with my assessment of his present risk, the expert opinion
evidence regarding Mr. Schoenborns mental illness and the prospects for treatment and management
of his underlying persistent anger and personality issues assist with my analysis.
[247] The index offences were unquestionably brutal, severe, and extremely violent. They were
committed when Mr. Schoenborn was in a psychotic state, suffering from delusions, and experiencing
other symptoms including auditory and olfactory hallucinations. The evidence establishes that
Mr. Schoenborns delusional disorder and active psychosis, which were the reason he committed the
murders, are currently in remission through the administration of antipsychotic medication.
Mr. Schoenborn has some insight into his delusional disorder and, significantly, has been compliant
with his medication for a number of years. This attenuates the risk that he will use similarly extreme
violence in the future, although some risk remains in that respect. I am mindful here of
Dr. OShaughnessys testimony that Mr. Schoenborns anger management problems and personality
traits increase the likelihood that stressors could destabilize his mental disorder.
[248] In addition, Mr. Schoenborns anger and personality traits cause him to continue to act
aggressively and occasionally violently at FPH, much as they caused him to engage in chronic, low-
level violence earlier in his life, as described by Dr. Hart. The experts all agree that Mr. Schoenborn
continues to require a great deal of treatment in this regard and that it will be a substantial challenge
to address these issues. Sometimes his aggressive and violent conduct at FPH has been quite
serious.
[249] Given the current state of Mr. Schoenborns treatment for anger and personality problems, it is
clear that he continues to represent a significant threat to the safety of the public as defined in
s. 672.5401. He continues to act in a hostile manner and to engage in confrontational, sometimes
violent behaviour. This occasionally results in conduct that is capable of causing serious physical or
psychological harm. Clearly the evidence supports a real, non-speculative risk that this behaviour will
persist in the future for as long as his anger and personality issues remain resistant to treatment.
Moreover, these issues give rise to the possibility that significant stress or interpersonal conflict could
destabilize Mr. Schoenborns mental health, potentially bringing about the return of his psychosis and
thus raising the possibility of more severe, extreme violence. For these reasons, in my view
Mr. Schoenborn will remain a significant threat to the safety of the public under s. 672.5401 until there
is evidence of substantial progress in the treatment of his anger management and personality
problems. Such progress will in turn depend on Mr. Schoenborns willingness to engage in therapy
and make genuine attempts to address his psychological issues.
[250] However, this does not answer the question raised by the Crowns application. The question is
whether there is a substantial likelihood that Mr. Schoenborn will cause, attempt to cause, or threaten
to cause bodily harm and thereby expose another person to serious physical or psychological harm. I
am not satisfied that there is a substantial likelihood of this type of violence. Not all of
Mr. Schoenborns aggressive and violent conduct at FPH rises beyond the merely trivial or annoying,
although some of it does. Mr. Schoenborn has fairly recently expressed violent ideation in response to
conflict with other patients, but he has also demonstrated the ability to walk away from such situations
or seek help from the hospital staff. In my view, much of the aggressive conduct in which
Mr. Schoenborn continues to engage simply does not rise to the requisite level of serious physical or
psychological harm under s. 672.5401. Further, while Mr. Schoenborns outstanding anger
management and personality issues could have the effect of destabilizing his mental disorder when
combined with stress or interpersonal conflict beyond his ability to handle in a healthy fashion, the
evidence does not support a high degree of probability that this will occur - particularly in light of the
lengthy period of time in which Mr. Schoenborns psychosis and delusions have been in remission
through treatment with antipsychotic medication.
[251] In summary, Mr. Schoenborn clearly remains a significant threat to the safety of the public.
There is a real risk that he will use violence that could endanger the life or safety of another person, in
the sense of meeting or exceeding the level of harm contemplated in s. 672.5401, and a more remote
risk that he will engage in more serious, extreme violence due to the return of his psychosis. After
considering Mr. Schoenborns current circumstances, and turning my mind in particular to the factors
listed in s. 672.64(2), I find that the evidence does not disclose a greater threat at this time and I am
accordingly not satisfied that there is a substantial likelihood that he will use violence that could
endanger the life or safety of another person.
2. s. 672.64(1)(b)
[252] As I stated earlier, this section requires an inquiry as to whether, having regard to the brutality
of the index offence, considered in light of and along with the factors in s. 672.64(2), there is a high
harm that substantially interferes with a persons physical or psychological integrity, health, or well-
being.
[253] My analysis under this section is also based on my findings of fact set out above. As I have
stated several times, there is no doubt that the murders of the three innocent Schoenborn children
were brutal in nature. But that does not end my inquiry. I must also consider the fact that these
murders were caused by Mr. Schoenborns mental illness, specifically his delusional disorder which is
now in remission. I accept that absent the psychosis, Mr. Schoenborn would not have engaged in an
act of such severe violence.
[254] The language of s. 672.64(1)(b) requires a link between the brutality of the index offence and
the risk of grave physical or psychological harm - it is that brutality which must indicate the risk. In
this case the underlying cause of the undoubtedly brutal offences, Mr. Schoenborns delusions and
active psychosis, is no longer extant. Sections s. 672.64(2)(c), (d), and (e) require that I consider
Mr. Schoenborns current mental condition, his past and expected course of treatment, and the
opinions of experts who have examined him, in determining whether to find him a HRA under
s. 672.64(1)(b). In other words, I must ask whether these considerations impact on whether the
brutality of the index offence continues to indicate a risk of grave physical or psychological harm. In
my view, it is clear that these considerations do have such an impact. Because Mr. Schoenborns
major mental illness is currently being successfully treated with antipsychotic medication, the primary
cause of the murders is no longer present. For this reason, the brutality of the index offences is a
much less cogent indicator of Mr. Schoenborns future risk. I find it is incapable of indicating a high
probability that Mr. Schoenborn will cause grave physical or psychological harm, given his current
circumstances. Furthermore, even looking beyond the brutality of the index offences, there is
insufficient evidence to indicate that Mr. Schoenborn is highly likely to cause the more extreme type of
violence contemplated in s. 672.64(1)(b). While the murders were part of a pattern of repetitive
behaviour - Mr. Schoenborns severe physical violence against his family members as a result of his
delusional thinking and psychosis in 2007 and 2008 - that pattern is not highly likely to continue
according to the past and expected course of Mr. Schoenborns treatment at FPH, his current mental
condition, and the opinions of the experts who testified at this hearing. The murders, and the assaults
on Ms. Clarke which form part of the same pattern of behaviour, were the direct result of
Mr. Schoenborns psychosis and paranoid delusions. Without his mental disorder, Mr. Schoenborn
would not have committed these abhorrent acts. Because his mental disorder is in remission, there is
not a sufficient evidentiary basis on which to conclude that Mr. Schoenborn is highly likely to cause
physical or psychological harm that rises to the level of the murders or assaults on Ms. Clarke, nor any
type of harm that satisfies the definition of grave physical or psychological harm under s. 672.64(1)(b).
[255] Given Mr. Schoenborns current mental condition and course of treatment, particularly the
prolonged remission of his psychosis and delusional disorder through antipsychotic medication, I am
not of the opinion that the brutal nature of the acts constituting the offences indicates a risk of grave
physical or psychological harm as required by s. 672.64(1)(b). I wish to be clear that this is not to say
that the offences themselves were not brutal; they were. However, they were committed under
fundamentally different circumstances than those in which Mr. Schoenborn currently finds himself, and
for that reason I am unable to find him a HRA under s. 672.64(1)(b).
VIII. CONCLUSION
[256] I dismiss the Crowns application to have Mr. Schoenborn found a high-risk accused under
s. 672.64(1) of the Code.
[257] Before I conclude, I must address the devastating impact of the tragic deaths of the three
young Schoenborn children on Ms. Clarke, her family, and everyone who knew KaitlynneF, Max, and
Cordon. I have reviewed the victim impact statements that were filed during this hearing. The agony
and heartbreak these people have suffered is unimaginable. In this application, though, I must
consider Mr. Schoenborns individual circumstances based on the evidence that is currently available
as to the risk he presently poses to members of the public.
[258] In light of this conclusion, I find it unnecessary to address Mr. Schoenborns constitutional
challenge to the HRA regime under ss. 7 and 11(h) of the Charter.
Devlin J.
A P P E N D I X A
EXECUTIVE SUMMARY
[1] This morning I will deliver an Executive Summary of my full written decision. Immediately after I
finish reading the summary in open court the full decision will be made available. The Executive
Summary will be included as Appendix A to the written decision.
I. INTRODUCTION
[2] The Crown applies to have Allan Dwayne Schoenborn found a high-risk accused pursuant to
s. 672.64(1)(a) or, in the alternative, s. C-46. As discussed further below, these provisions enable the
court to find an accused to be a high-risk accused if he or she has been found not criminally
responsible on account of mental disorder for a serious personal injury offence, committed while the
672.64(1)(b) of the Criminal Code, R.S.C. 1985, c. accused was 18 years of age or older, and if
certain other criteria as set out in ss. 672.64(1)(a) and (b) are established. The result of such a finding
is that the HRA will be detained in a hospital under stricter terms than those that apply to other not
criminally responsible accused.
[3] On February 22, 2010 Mr. Justice Powers found Mr. Schoenborn not criminally responsible by
reason of mental disorder for the first degree murders of his three children. Mr. Schoenborn has been
under the jurisdiction of the BC Review Board and detained at the Forensic Psychiatric Hospital since
that time. The high-risk accused regime was enacted through the Not Criminally Responsible Reform
Act, S.C. 2014, c. 6. On September 4, 2015, the Crown applied to have Mr. Schoenborn found to be a
high-risk accused under s. 672.64(1).
[4] Mr. Schoenborn opposes the application on its merits, and also challenges the constitutionality
of the high-risk accused regime, arguing it infringes s. 7 of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11. He also argues that the application of the high-risk accused regime to individuals who, like
himself, were found not criminally responsible before the regime came into force infringes s. 11(h) of
the Charter.
[5] It is important to remember that in this ruling I am not determining whether Mr. Schoenborn
should be released from the hospital. I am not determining whether Mr. Schoenborn should be granted
an absolute or conditional discharge. The sole purpose of this application is to determine whether
Mr. Schoenborn should be designated as a high-risk accused, and if so whether the legislation
providing for that designation is Charter-compliant.
[6] I have reviewed the victim impact statements that were filed during this hearing. I am aware of
the fact that the childrens murders have had a devastating impact on Ms. Clarke, her family and all of
those who knew the Schoenborn children.
II. THE HIGH-RISK ACCUSED REGIME
[7] The NCR Reform Act, which came into force on July 11, 2014, provided for numerous
amendments to Part XX.1 of the Code, including the creation of the high-risk accused designation in
s. 672.64.
[8] Section 672.64(1) provides that an accused can be found a high-risk accused on application
by the prosecutor to the court (not the Review Board) if the following criteria are met: (1) he or she
was found not criminally responsible by reason of mental disorder for a serious personal injury offence
as defined in s. 672.81(1.3) of the Code; (2) he or she was 18 years of age or older at the time of the
commission of that offence; (3) he or she has not been discharged absolutely; and (4) the court is
either:
(a) satisfied there is a substantial likelihood the accused will use violence that could endanger the
life or safety of another person; or
(b) of the opinion that the acts that constitute the offence were of such a brutal nature as to
indicate a risk of grave physical or psychological harm to another person.
[9] The main consideration relates to the accuseds dangerousness, or the threat he or she poses
to public safety. The requisite level and type of threat is set out in ss. 672.64(1)(a) and (b), which are
disjunctive, meaning the court may find the accused to be a high-risk accused if either one of these
alternatives is established. Pursuant to s. 672.64(2), in deciding whether to find the accused a high-
risk accused under s. 672.64(1)(a) or (b), the court must consider all relevant evidence, including the
following factors:
(d) the past and expected course of the accuseds treatment, including the accuseds willingness
to follow treatment; and
III. STATUTORY INTERPRETATION OF THE HRA REGIME
[10] In order to decide the Crowns application, I had to determine how the provisions in s. 672.64
dealing with the criteria for a high-risk accused finding should be read. I identified the following points
of statutory interpretation which had to be determined:
(1) What is the meaning of substantial likelihood in s. 672.64(1)(a)?
(2) What is the meaning of violence that could endanger the life or safety of another person in
s. 672.64(1)(a)?
(3) What is the meaning of brutal nature in s. 672.64(1)(b)?
(4) What is the meaning of risk in s. 672.64(1)(b)?
(5) What is the meaning of grave physical or psychological harm in s. 672.64(1)(b)?
(6) What is the meaning of a pattern of repetitive behaviour of which the offence forms a part in
s. 672.64(2)(b)?
[11] To answer these questions, I applied the modern approach to statutory interpretation described
in Prof. Driedgers, The Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 87, and
adopted by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at
para. 21. Under that approach, the words in an Act must be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and
the intention of Parliament. In the criminal context, the application of the modern approach may
involve looking at the grammatical and ordinary sense of the words, their place within the Code, the
provisions legislative history and evolution, if any, and any jurisprudence interpreting the words: R. v.
Borowiec, 2016 SCC 11 at para. 18.
[12] I will summarize my findings on these six points of statutory interpretation.

[13] I find that in the context of s. 672.64(1)(a), a substantial likelihood must be interpreted to
mean a higher level of risk than a significant threat under ss. 672.54 and 672.5401. In my view,
s. 672.64(1)(a) requires an elevated level of risk over and above that which is involved in a significant
threat for the purposes of s. 672.54, as defined in s. 672.5401. A substantial likelihood in
s. 672.64(1)(a) requires a high degree of probability that the accused will use violence that could
endanger the life or safety of another person. I turn next to the issue of what is meant by that type of
violence.
(2) Violence that could endanger the life or safety of another person in
s. 672.64(1)(a)
[14] Mr. Schoenborn argues that violence in s. 672.64(1)(a) should be interpreted to refer to
physical violence according to a force based (as opposed to harm based) definition, and should not
include the infliction of psychological harm. In the alternative, he proposes harm based definition of
violence that includes only physical and not psychological harm, and thus does not include threats.
[15] The Crown argues that violence in s. 672.64(1)(a) should be interpreted according to a harm
based definition that includes the infliction of psychological harm, arguing that this accords with
contemporary jurisprudence concerning the term violence.
[16] I determined that the interpretation of violence that could endanger the life or safety of another
person required three separate determinations: (1) whether violence should be interpreted
according to a force based or harm based definition; (2) if violence is interpreted according to a harm
based definition, whether violence that could endanger the life or safety of another person should be
interpreted so as to include threats and the infliction of psychological harm; and (3) whether violence
that could endanger the life or safety of another person entails the risk of a particular level of force,
physical harm, and/or psychological harm. I will summarize my conclusions with respect to these
questions in turn.
[17] I agree with the Crown that violence in s. 672.64(1)(a) must be interpreted according to a
harm based definition. I have considered the decisions R. v. C.D.; R. v. C.D.K., 2005 SCC 78 and R. v.
Steele, 2014 SCC 61 as well as the statutory context and specific language of the provision. I find that
s. 672.64(1)(a) requires the court to be satisfied that there is a high degree of probability that the
accused will cause, attempt to cause, or threaten to cause bodily harm.
[18] I do not accept Mr. Schoenborns submission that threats of bodily harm or other acts that result
in psychological but not physical damage cannot be said to endanger a persons life or safety. Nor do I
accept Mr. Schoenborns arguments about the significance of the lack of a specific reference to
psychological harm in s. 672.64(1)(a), as compared to other provisions in the Criminal Code that
contain similar wording to s. 672.64(1)(a).
[19] I conclude that the concept of violence in s. 672.64(1)(a) must be interpreted using a harm
based approach that includes the threat of bodily harm and the infliction of psychological harm.
[20] I find that the severity of the potential harm in s. 672.64(1)(a) must be the same or greater as
the potential harm necessary to establish a significant threat to the safety of the public under
s. 672.54; in other words, serious physical or psychological harm as set out in s. 672.5401.
Therefore, s. 672.64(1)(a) requires the court to be satisfied that there is a higher likelihood of harm,
and at least the same severity of potential harm, as in s. 672.5401. This interpretation is consistent
with the scheme and object of the legislation - to protect the public from those accused who pose an
unacceptable risk to the public, over and above what is necessary for continued Review Board
jurisdiction under s. 672.54 - and with the actual words used in the provision.
[21] To summarize my statutory interpretation of s.672.64(1)(a), I find this branch of the high-risk
accused test requires a finding that there is a high degree of probability the accused will cause,
attempt to cause, or threaten to cause bodily harm, and in so doing expose another person to serious
physical or psychological harm.
[22] I now turn to the interpretation of the relevant terms in s. 672.64(1)(b).
[23] Section 672.64(1)(b) is the alternative route to a high-risk accused finding for an accused found
not criminally responsible for a serious personal injury offence committed at the age of 18 or older. It
requires the court to be of the opinion that the acts that constitute the offence for which the accused
was found not criminally responsible were of such a brutal nature as to indicate a risk of grave
physical or psychological harm to another person.
[24] The first point of statutory interpretation I dealt with under this provision was the meaning of
brutal in considering the nature of the acts constituting the offence.
[25] I find the approach to the interpretation of the term brutal in R. v. Campbell, [2004] O.J.
No. 2151 (S.C.) at para. 56, in the context of s. 753(1)(a)(iii) of the Criminal Code, is equally
appropriate in interpreting the term brutal as it relates to the nature of the acts constituting the index
offence in s. 672.64(1)(b). The concern in both contexts is whether the brutal nature of the index
offence indicates a risk of future harm. The acts constituting the index offence will be brutal where
they may be described as cruel, savage, or inhuman.
(4) Risk in s. 672.64(1)(b)
[26] The next point of statutory interpretation in relation to s. 672.64(1)(b) was the meaning of the
term risk - specifically the level of risk involved, in the sense of the degree of likelihood or probability
that the risk of grave physical or psychological harm will actually materialize.
[27] I considered that the term risk appears elsewhere in Part XX.1, specifically in the definition of
significant threat to the safety of the public in s. 672.5401 as a risk of serious physical or
psychological harm to members of the public The law is clear that the risk involved in this section
must be real and supported by evidence, not speculative: see Winko v. British Columbia (Forensic
Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 57.
[28] I considered the surrounding legislative context to assist with my interpretation, in particular the
high-risk accused review provisions in s. 672.84. I find that s. 672.64(1)(b) must be interpreted in light
of these review provisions. Parliament drafted s. 672.84(1) and (3) such that the only basis for
revoking a high-risk accused finding is for the Review Board, and then the superior court of criminal
jurisdiction, to be satisfied that there is not a substantial likelihood the accused will use violence that
could endanger the life or safety of another person. This is true whether the accused was found to be
a high-risk accused under s. 672.64(1)(a) or (b). Therefore, the only way for an accused found to be
high-risk under s. 672.64(1)(b) to have his or her designation revoked is to satisfy the Review Board
and then the court that he or she does not meet the criteria for a high-risk accused finding under
s. 672.64(1)(a) - that is, he or she is not substantially likely to use violence that could endanger the life
or safety of another person. In order to give effect to these review provisions, the risk in s. 672.64(1)
(b) must be interpreted as involving the same degree of probability as the substantial likelihood in
s. 672.64(1)(a). Otherwise, if s. 672.64(1)(b) involved a lower degree of probability, an accused found
to be high-risk under s. 672.64(1)(b) and not s. 672.64(1)(a) would be immediately eligible to have the
high-risk accused finding revoked, rendering s. 672.64(1)(b) essentially inoperative.
[29] I therefore conclude that s. 672.64(1)(b) requires the court to find that the brutality of the index
offence, considered along with and in light of the factors in s. 672.64(2), indicates that there is a high
degree of probability that the accused will use violence that will cause grave physical or psychological
harm to another person.
[30] I turn to the meaning of grave physical or psychological harm.
[31] In my view there can be no dispute that the grave physical or psychological harm in this
paragraph involves an increased severity of harm beyond that required for a significant threat to the
safety of the public and conduct endangering the life or safety of another person in ss. 672.54 and
672.64(1)(a).
[32] The Crown submits that the harm must be significant, and argues the requisite threshold is akin
to the meaning of serious bodily harm set by the Supreme Court of Canada in R. v. McCraw, [1991]
3 S.C.R. 72: that is, any hurt or injury, whether physical or psychological, that interferes in a
substantial way with the physical or psychological integrity, health or well-being of the complainant. I
accept that this language approximates the degree of the potential harm that is required in
s. 672.64(1)(b). This interpretation of grave physical or psychological harm represents a conceptually
clear step up from the level of harm required for a significant threat to the safety of the public.
[33] Grave physical harm does not require the same degree of damage as an aggravated assault -
that is, wounding, maiming, disfiguring, or endangering life. With respect to the degree of potential
psychological harm required, I find the comments of Madam Justice Bennett in R. v. Armstrong, 2014
BCCA 174 at para. 53 to be apt. There, in interpreting the meaning of severe psychological damage
in the definition of serious personal injury offence in s. 752 of the Criminal Code, she held that it was
not necessary for the complainant to be debilitated or crippled by fear or terror. Rather, psychological
harm is severe where it is serious and prolonged, and significantly affects the victims day-to-day
activities.
[34] Thus, whether the court is considering the potential for grave physical or psychological harm in
s. 672.64(1)(b), or both, the question is not whether the potential harm is on the highest order of
magnitude. It must, however, be decidedly more severe than the standard for serious physical or
psychological harm under s. 672.5401.
[35] To summarize, the inquiry in s. 672.64(1)(b) is whether, having regard to the brutality of the
index offence, considered in light of and along with the factors in s. 672.64(2), there is a high degree
of probability the accused will use violence that will result in grave physical or psychological harm, in
the sense of substantial interference with physical or psychological integrity, health, or well-being.
[36] I turn now to my sixth and final point of statutory interpretation - what is the meaning of a
pattern of repetitive behaviour of which the offence forms a part in s. 672.64(2)(b).
(6) Pattern of repetitive behaviour of which the offence forms a part in

s. 672.64(2)(b)
[37] Section 672.64(2)(b) requires the court to consider whether the index offence forms a part of a
pattern of repetitive behaviour in deciding whether to make a high-risk accused finding.
[38] After reviewing several authorities regarding the approach to identifying a pattern of repetitive
behaviour in the dangerous offender context, and considering the scheme and object of the high-risk
accused regime, I conclude that the following principles should guide the consideration of whether the
index offence forms part of such a pattern under s. 672.64(2)(b). First, the pattern should relate to
behaviour that is criminal rather than merely antisocial in nature, since the index offence will by
definition involve criminal conduct and must form part of the pattern of behaviour being considered.
There must be significant similarities between each example in the alleged pattern of behaviour in
respect of their essential characteristics, since that is implicit in the definition of a pattern. In general,
the fewer the number of incidents in the alleged pattern, the more similarity is required between their
essential characteristics. These similar characteristics must be described with a degree of generality
that gives individuality to the pattern. The court should consider the type of conduct involved, who the
victims were, and what motivated the accused. There is no requirement that the behaviour in the
pattern be objectively serious or comparatively serious. In comparing different incidents in an alleged
pattern of repetitive behaviour, the court must consider the context and surrounding circumstances in
which the behaviour occurred. In particular, the court should consider the accuseds mental state at
the time of the index offence and at the time of the incidents alleged to comprise the pattern.
[39] I will now summarize my findings on the Crowns application.
IV. HRA APPLICATION
[40] After reviewing the background information in relation to Mr. Schoenborns circumstances, I
conducted my analysis by considering the relevant evidence as it pertains to each factor in
s. 672.64(2) and then determined whether, based on my interpretation of the legislation and my
analysis of the factors, there was a basis to conclude that the evidence establishes the requirement
under s. 672.64(1)(a) or (b).
(a) Nature and circumstances of the offences
[41] I first dealt with the submission by Mr. Schoenborn that I should not consider the nature and
circumstances of the offences in my analysis under s. 672.64(1)(a) or (b).
[42] I do not agree with Mr. Schoenborns position. I find, as contemplated in Winko at para. 62, that
the situation of each accused must be carefully examined within a flexible scheme that considers the
specific circumstances of the individual accused, having recourse to a broad range of evidence. The
need to contextualize and look beyond the nature and circumstances of the offences does not detract
from the relevance of this factor to the overall analysis, or the clear direction from Parliament to
consider it in deciding whether to make a high-risk accused finding.
[43] I began my analysis with a consideration of the nature of the offences. I note that the offences
were brutal in nature, and involved planning and deliberation. In terms of the surrounding
circumstances, it is clear that Mr. Schoenborn was in a psychotic state when he committed the
offences. He was hallucinating and had delusional beliefs that the children were bound for a life of
sexual abuse and drug addiction. He believed the only way to save them from that fate was to kill
them.
[44] In addition to the fact that Mr. Schoenborn was in a psychotic state, the Crown urges me to find
as part of the surrounding circumstances that Mr. Schoenborns anger played a role in the murders.
[45] Having considered the expert evidence together with the findings of Justice Powers, I do not
find there is a basis to infer that Mr. Schoenborns anger in fact played a significant causative role in
the murders. It is possible that Mr. Schoenborns anger contributed to the murders by increasing the
likelihood that he would act violently as a result of his paranoid delusions. It is also possible that the
delusions on their own, without any underlying anger issues, would have led to the same result.
Ultimately I am unable to conclude precisely what role anger played in the murders. What is clear is
that anger alone would not have led Mr. Schoenborn to kill the children; the primary reason he did so
was his psychosis and delusional thinking, which rendered him incapable of appreciating that it was
wrong to kill them - indeed, he came to believe that this was the only way to save them. Therefore, I
decline to infer that anger played a role in the murders as argued by the Crown. As discussed further
below, however, Mr. Schoenborns ongoing struggle with anger management and personality
dysfunction continues to pose a threat to the stability of his mental health and the treatment of his
delusional disorder. In assessing Mr. Schoenborns future dangerousness, it is impossible to isolate
the roles of his specific mental health and personality problems, given the impenetrable overlap and
interplay between the different aspects of his psychological makeup in terms of their effect on his
behaviour.
[46] The Crown argued that the evidence established Mr. Schoenborn has shown a pattern of
repetitive behaviour that includes the index offences. The Crown submitted there are a number of
potential identifiable patterns, in particular: (1) the murder of the three children on their own, (2) large
pattern of chronic anger and aggression, and (3) a pattern of serious physical violence associated with
psychotic symptoms and psychosis.
[47] My findings with respect to this factor are as follows:
1) I am not satisfied that the three murders, when viewed on their own, can constitute a pattern of
repetitive behaviour as contemplated in 672.64(2). The murders were part of a single event and
cannot be treated as three separate elements of a repetitive pattern of behaviour as that
concept is understood at law.
2) I am satisfied that the evidence has established a pattern of Mr. Schoenborn repeatedly
engaging in angry and aggressive behaviour ranging from interpersonal conflicts, verbal
outbursts, and on some occasions physical altercations. This behaviour includes threats,
posturing, and intimidation, and persists to this day in the hospital. However, the murders do
not form a part of this pattern of behaviour. The type of conduct, the victims, and the underlying
motivations are completely different. The murders do not share any essential characteristics
with the other incidents in this pattern of behaviour.
3) I am prepared to accept that there are sufficient similarities between the assaults
Mr. Schoenborn inflicted on Ms. Clarke while he was suffering from psychosis and the murders
to constitute a pattern of repetitive behaviour. These incidents all shared the essential
characteristics of being caused by Mr. Schoenborns delusional disorder and active psychosis
and involving the infliction of serious physical violence on members of his own immediate
family.
[48] I considered the most recent assessments of Mr. Schoenborns mental condition provided by
Dr. Hediger, his current treating psychiatrist, and Dr. OShaughnessy, a psychiatrist who met with
Mr. Schoenborn most recently in August 2016. Dr. Hediger explained that Mr. Schoenborns risk stems
from several potential causes and is clearly multifactorial. He testified that Mr. Schoenborns
psychosis and delusional disorder have been in remission for a number of years thanks to successful
treatment via antipsychotic medication. In general, Mr. Schoenborn requires ongoing treatment for
three diagnoses: (1) major mental illness in the form of a delusional disorder; (2) anger management
and other personality problems, including paranoid personality traits; and (3) substance abuse
problems. It is Mr. Schoenborns anger management and related personality issues that pose the
greatest risk. Dr. Hedigers recommendation is that Mr. Schoenborn should remain under detention at
the Forensic Psychiatric Hospital.
[49] Dr. OShaughnessys assessment of Mr. Schoenborns current mental condition aligns with that
of Dr. Hediger. Dr. OShaughnessy explained that it was of paramount importance to treat
Mr. Schoenborns personality traits, anger management difficulties and social skill issues, not only
because these problems continue to cause Mr. Schoenborn to behave aggressively, but because they
could potentially destabilize his mental disorder which is currently in remission. Dr. OShaughnessy
testified whats clear is that hes got a chronic condition that requires ongoing treatment and he ought
to never discontinue antipsychotic medications.
(d) The past and expected course of Mr. Schoenborns treatment, including his
willingness to follow treatment and expected course of treatment
[50] In addition to Dr. Hediger, Mr. Schoenborns two treating psychologists - Dr. Cooper and
Dr. Cook - as well as his forensic nurse, Ms. Lee, provided the details of his past and expected course
of treatment. Dr. Hediger reported that Mr. Schoenborn has re-engaged in anger management therapy
after withdrawing from counselling in early 2016, but it was too early to make any type of clinical
assessment of his progress. It is the shared opinion of all the medical experts who have assessed
Mr. Schoenborn that it essential that he receive further treatment to deal with is anger management
and other related personality issues. With respect to his mental disorder, all of the medical experts
agree Mr. Schoenborn must continue take his antipsychotic medication to treat his delusional disorder
and prevent the recurrence of psychotic episodes.
[51] In this section I discuss the previous examinations performed by Dr. Lohrasbe and Dr. Brink.
The results of these earlier examinations assist in understanding the progression of Mr. Schoenborns
mental illness and treatment. Dr. Lohrasbe and Dr. Brinks opinions align with the more recent
opinions of Dr. Hediger and Dr. OShaughnessy. All four experts agreed on Mr. Schoenborns main
diagnoses of delusional disorder, anger and personality problems, and substance abuse problems.
(f) Other evidence
[52] I also heard evidence from Dr. Semrau and Dr. Hart, who both conduced risk assessments at
the request of the Crown. They used the HCR-20 violence assessment tool, which was also used by
Dr. Hediger and Dr. OShaughnessy. Dr. Hart and Dr. Semrau concluded that Mr. Schoenborn posed a
high risk for future violence and while Dr. OShaughnessy did not attribute a rating, he did agree with
the other medical opinions that Mr. Schoenborn currently posed too high a risk for community access.
V. ANALYSIS
[53] Having considered all of the relevant evidence concerning Mr. Schoenborns circumstances,
and the factors set out in s. 672.64(2), I turn now to my analysis as to whether the evidence supports
a high-risk accused designation under s. 672.64(1)(a) or (b).
[54] In order to conduct my analysis I will rely on the following findings of fact:
1. The murders were brutal in nature.
2. Mr. Schoenborn committed the murders while he was suffering from psychosis brought on by his
delusional disorder which is a major mental illness.
3. The murders were motivated by Mr. Schoenborns desire to protect his children from what he
believed would be a life of sexual abuse and drug addiction, not anger at the children or
Ms. Clarke.
4. In 2007 and 2008 Mr. Schoenborn exhibited a pattern of engaging in serious violence against
members of his family due to paranoid delusions. The murders formed a part of this pattern.
5. Mr. Schoenborns mental illness (in particular, his symptoms of paranoid delusions and
psychosis) is in remission; he has gained insight into his mental illness and is compliant with his
medication. Continued medication is critical for the long-term management of Mr. Schoenborns
longstanding delusional disorder.
6. Mr. Schoenborn has a pattern of repetitive behaviour consisting of interpersonal conflicts, angry
and aggressive outbursts, and verbal and sometimes physical confrontation. This pattern is
chronic. The murders do not form a part of this pattern of behaviour. The pattern has persisted
while Mr. Schoenborn has been detained at Forensic Psychiatric Hospital, although he has
made some improvements in terms of reducing the frequency and intensity of his anger-related
incidents.
7. The key challenge in respect of Mr. Schoenborns treatment are his anger management and
overall personality problems, which are chronic and will require long term treatment before he
can be re-integrated into society.
1. s. 672.64(1)(a)
[55] As stated earlier, under s. 672.64(1)(a) I must be satisfied that there is a high degree of
probability that Mr. Schoenborn will cause, attempt to cause, or threaten to cause bodily harm,
exposing another person at a minimum to serious physical or psychological harm as contemplated in

s. 672.5401.
[56] In support of its application to have Mr. Schoenborn designated a high-risk accused under
s. 672.64(1)(a), the Crown relies on a number of factors including the extreme violence of the index
offences; the fact that the index offences formed part of a pattern of violent behaviour;
Mr. Schoenborns chronic mental health issues; and the marginal prospects for future treatment of his
personality and anger management problems.
[57] The Crown also relies on the fact that the psychiatric experts HCR-20 risk assessments of
Mr. Schoenborn generally found him to be a high or significant risk for violence in the future. While this
has some relevance, it is important that the court undertake its own risk assessment, having regard to
the criteria in s. 672.64(1) and the factors in s. 672.64(2), in determining whether to find an accused to
be a high-risk accused.
[58] The index offences were unquestionably brutal, severe, and extremely violent. They were
committed when Mr. Schoenborn was in a psychotic state, suffering from delusions and experiencing
other symptoms including auditory and olfactory hallucinations. The evidence establishes that
Mr. Schoenborns delusional disorder and active psychosis, which were the reason he committed the
murders, are currently in remission through the administration of antipsychotic medication.
Mr. Schoenborn has some insight into his delusional disorder and, significantly, has been compliant
with his medication for a number of years. This attenuates the risk that he will use similarly extreme
violence in the future, although some risk remains in that respect. I am mindful here of
Dr. OShaughnessys testimony that Mr. Schoenborns anger management problems and personality
traits increase the likelihood that stressors could destabilize his mental disorder.
[59] In addition, Mr. Schoenborns anger and personality traits cause him to continue to act
aggressively and occasionally violently in the hospital, much as they caused him to engage in chronic,
low-level violence earlier in his life. The experts all agree that Mr. Schoenborn continues to require a
great deal of treatment in this regard and that it will be a substantial challenge to address these
issues. Sometimes his aggressive and violent conduct in the hospital has been quite serious.
[60] Given the current state of Mr. Schoenborns treatment for anger and personality problems, it is
clear that he continues to represent a significant threat to the safety of the public as defined in
s. 672.5401. He continues to act in a hostile manner and to engage in confrontational, sometimes
violent behaviour. This occasionally results in conduct that is capable of causing serious physical or
psychological harm. Clearly the evidence supports a real, non-speculative risk that this behaviour will
persist in the future for as long as his anger and personality issues remain resistant to treatment.
Moreover, these issues give rise to the possibility that significant stress or interpersonal conflict could
destabilize Mr. Schoenborns mental health, potentially bringing about the return of his psychosis and
thus raising the possibility of more severe, extreme violence. For these reasons, in my view
Mr. Schoenborn will remain a significant threat to the safety of the public under s. 672.54 until there is
evidence of substantial progress in the treatment of his anger management and personality problems.
Such progress will in turn depend on Mr. Schoenborns willingness to engage in therapy and make
genuine attempts to address his psychological issues.
[61] However, this does not answer the question raised by the Crowns application. The question is
whether there is a substantial likelihood that Mr. Schoenborn will cause, attempt to cause, or threaten
to cause bodily harm and thereby expose another person to serious physical or psychological harm. I
am not satisfied that there is a substantial likelihood of this type of violence. Not all of
Mr. Schoenborns aggressive and violent conduct at the Forensic Psychiatric Hospital rises beyond
the level of being merely trivial or annoying, although some of it does. Mr. Schoenborn has fairly
recently expressed violent ideation in response to conflict with other patients, but he has also
demonstrated the ability to walk away from such situations or seek help from the hospital staff. In my
view, much of the aggressive conduct in which Mr. Schoenborn continues to engage simply does not
rise to the requisite level of serious physical or psychological harm under s. 672.5401. Further, while
Mr. Schoenborns outstanding anger management and personality issues could have the effect of
destabilizing his mental disorder when combined with stress or interpersonal conflict beyond his ability
to handle in a healthy fashion, the evidence does not support a high degree of probability that this will
occur - particularly in light of the lengthy period of time in which Mr. Schoenborns psychosis and
delusions have been in remission through treatment with antipsychotic medication.
[62] In summary, Mr. Schoenborn clearly remains a significant threat to the safety of the public.
There is a real risk that he will use violence that could endanger the life or safety of another person, in
the sense of meeting or exceeding the level of harm contemplated in s. 672.5401, and a more remote
risk that he will engage in more serious, extreme violence due to the return of his psychosis. After
considering Mr. Schoenborns current circumstances, and turning my mind in particular to the factors
listed in s. 672.64(2), I find that the evidence does not disclose a greater threat at this time and I am
accordingly not satisfied that there is a substantial likelihood that he will use violence that could
endanger the life or safety of another person.
2. s. 672.64(1)(b)
[63] As I stated earlier, this section requires an inquiry as to whether, having regard to the brutality
of the index offence, considered in light of and along with the factors in s. 672.64(2), there is a high
harm that substantially interferes with a persons physical or psychological integrity, health, or well-
being.
[64] My analysis under this section is also based on my findings of fact set out above. As I have
stated several times, there is no doubt that the murders of the three innocent Schoenborn children
were brutal in nature. But that does not end my inquiry. I must also consider the fact that these
murders were caused by Mr. Schoenborns mental illness, specifically his delusional disorder which is
now in remission. I accept that absent the psychosis, Mr. Schoenborn would not have engaged in an
act of such severe violence.
[65] The language of s. 672.64(1)(b) requires a link between the brutality of the index offence and
the risk of grave physical or psychological harm - it is that brutality which must indicate the risk. In
this case the underlying cause of the undoubtedly brutal offences, Mr. Schoenborns delusions and
active psychosis, is no longer extant. Sections s. 672.64(2)(c), (d), and (e) require that I consider
Mr. Schoenborns current mental condition, his past and expected course of treatment, and the
opinions of experts who have examined him, in determining whether to find him a high-risk accused
under s. 672.64(1)(b). In other words, I must ask whether these considerations impact on whether the
brutality of the index offence continues to indicate a risk of grave physical or psychological harm. In
my view, it is clear that these considerations do have such an impact. Because Mr. Schoenborns
major mental illness is being successfully treated with antipsychotic medication, the psychotic
symptoms that were the primary cause of the murders are no longer active. For this reason, the
brutality of the index offences is a much less cogent indicator of Mr. Schoenborns future risk. I find it
is incapable of indicating a high probability that Mr. Schoenborn will cause grave physical or
psychological harm, given his current circumstances. Furthermore, even looking beyond the brutality
of the index offences, there is no evidence to indicate that Mr. Schoenborn is highly likely to cause the
more extreme type of violence contemplated in s. 672.64(1)(b). While the murders were part of a
pattern of repetitive behaviour - Mr. Schoenborns severe physical violence against his family
members as a result of his delusional thinking and psychosis in 2007 and 2008 - that pattern is not
highly likely to continue according the past and expected course of Mr. Schoenborns treatment, his
current mental condition, and the opinions of the experts who testified at this hearing. The murders,
and the assaults on Ms. Clarke which form part of the same pattern of behaviour, were the direct
result of Mr. Schoenborns psychosis and paranoid delusions. Without his mental disorder,
Mr. Schoenborn would not have committed these abhorrent acts. Because his mental disorder is in
remission, there is no basis on which to conclude that Mr. Schoenborn is highly likely to cause
physical or psychological harm that rises to the level of the murders or assaults on Ms. Clarke, nor any
type of harm that satisfies the definition of grave physical or psychological harm under s. 672.64(1)(b).
[66] Given Mr. Schoenborns current mental condition and course of treatment, particularly the
prolonged remission of his psychosis and delusional disorder through antipsychotic medication, I am
not of the opinion that the brutal nature of the acts constituting the offences indicates a risk of grave
physical or psychological harm as required by s. 672.64(1)(b). I wish to be clear that this is not to say
that the offences themselves were not brutal; they were. However, they were committed under
fundamentally different circumstances than those in which Mr. Schoenborn currently finds himself, and
for that reason I am unable to find him a high-risk accused under s. 672.64(1)(b).
VI. CONCLUSION
[67] I dismiss the Crowns application to have Mr. Schoenborn found a high-risk accused under
s. 672.64(1) of the Criminal Code.
[68] In light of this conclusion, I find it unnecessary to address Mr. Schoenborns constitutional
challenge to the high-risk accused regime under ss. 7 and 11(h) of the Charter.

Regina v. Allan Dwayne Schoenborn

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Regina v. Allan Dwayne Schoenborn

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8/31/2017 2017 BCSC 1556 R. v.

IN THE SUPREME COURT OF BRITISH COLUMBIA

Allan Dwayne Schoenborn

These Reasons have been drafted to comply with existing

Before: The Honourable Madam Justice Devlin

Reasons for Judgment

Counsel for Crown: W. Dawson, Q.C.

Counsel for Accused: P.J. Wilson, Q.C.

Place and Dates of Trial: New Westminster, B.C.

Place and Date of Judgment: New Westminster, B.C.

Opinion of Dr. Cooper

II. THE NCRMD REGIME - PART XX.1 OF THE CODE

III. THE HIGH RISK ACCUSED REGIME

(a) the nature and circumstances of the offence;

(c) the accuseds current mental condition;

(e) the opinions of experts who have examined the accused.

IV. STATUTORY INTERPRETATION OF THE HRA REGIME

A. What do ss. 672.64(1) and (2) of the Code Require?

(1) What is the meaning of substantial likelihood in s. 672.64(1)(a)?

(3) What is the meaning of brutal nature in s. 672.64(1)(b)?

(4) What is the meaning of risk in s. 672.64(1)(b)?

(5) What is the meaning of grave physical or psychological harm in s. 672.64(1)(b)?

(1) Substantial likelihood in s. 672.64(1)(a)

[45] And further, at 3:35:

1) Force based or harm based definition of violence

[59] Writing for the Court at para. 42, Wagner J. held:

2) Threats and psychological harm

3) Severity of the potential harm

Although the finding of a SPIO conviction continues to function as a prerequisite to a dangerous

(3) Brutal nature in s. 672.64(1)(b)

unlikely to be inhibited by normal standards of behavioural restraint. In this provision, as in

(4) Risk in s. 672.64(1)(b)

(5) Grave physical or psychological harm in s. 672.64(1)(b)

(6) Pattern of repetitive behaviour of which the offence forms a part in

[111] At para. 111, the court found that:

[112] At para. 113 the court continued:

A. Childhood and Early Years

C. Family History and Relationship with Darcie Clarke

D. History of Mental Illness

[53] Mr. Schoenborn repeated a number of instances in which he became suspicious of

G. The NCRMD Verdict

H. Review Board hearings and time at FPH

VI. THE HRA APPLICATION

1. Consideration of the s. 672.64(2) Factors

(a) Nature and circumstances of the offence

Nature of the Offences

Circumstances of the Offences

Did anger play a role in the murders?

(i) Do the three murders establish a pattern of repetitive behaviour?

(c) Mr. Schoenborns current mental condition

Opinion of Dr. Hediger

(c) drug and alcohol counselling services;

(d) psychological and counselling interventions for anger management;

Opinion of Dr. OShaughnessy

Evidence of Ms. Lee

Opinion of Dr. Cooper

Opinion of Dr. Cook

Expected Course of Mr. Schoenborns Treatment

(e) The opinions of experts who have examined Mr. Schoenborn

Opinion of Dr. Lohrasbe

Opinion of Dr. Brink

(f) Other evidence

Risk Assessments using the HCR-20 Violence Assessment Tool

Opinion of Dr. Semrau