Detailed: Martin Galen Vandenberg Not Criminally Responsible in Death of Mother

Read the full detailed judgment that found Martin Galen Vandenberg not criminally responsible in the death of his mother. The identity of the deceased in the death on Salt Spring Island that occurred on Dec 6th, 2017 was confirmed to be that of 47 year old Heather Jones. 22 year old Martin Galen Vandenberg was released from police custody and was apprehended under the Mental Health Act. Mr. Vandenberg was suffering from a serious mental disorder at the time he killed his mother, and was not capable of knowing that what he was doing was morally wrong. The judgement also details a problematic pattern of cannabis use that lead to clinically significant impairment or distress and that there was ample evidence that schizophrenia existed in the absence of cannabis. He was under the delusional belief that killing his mother would save her from a worse fate.

DETAILED JUDGEMENT

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: R. v. Vandenberg, 2019 BCSC 1838, Date: 20191001. Docket: 40475-2. Registry: Duncan

v.

Martin Galen Jan Vandenberg

Before: The Honourable Madam Justice J. A. Power, Oral Reasons for Judgment, Counsel for the Crown: J. Blazina
Counsel for the Defendant: T. Hemphill, Place and Date of Trial/Hearing: Victoria, B.C., September 17, 18, 19, 2019, Place and Date of Judgment: Victoria, B.C., October 1, 2019

INTRODUCTION

[1] THE COURT: I am rendering a decision in the trial of this matter which I heard on September 17 to 19 of this year.

[2] I wish to state at the outset that Martin Vandenberg’s counsel is present in person and appearing for him by way of a counsel designation form which is on the file. Martin Vandenberg is present by video link from the Forensic Psychiatric Hospital on the Lower Mainland.

[3] I have proceeded in this way on application of defence counsel, with the consent of the Crown, and having considered the evidence on the trial which included evidence that Martin Vandenberg’s mental condition deteriorated when he was held at the Vancouver Island Regional Correctional Centre. It is, in my view, in Mr. Vandenberg’s health interests, and in the public interest generally, for Mr. Vandenberg to be held in a psychiatric hospital where his mental health condition, and any safety issues presented by that, can be most effectively monitored. I am of the view that I can exercise my discretion under s. 650(1.1) of the Criminal Code.

[4] In light of the fact that I am rendering an oral decision in this case, I reserve the right to edit a transcript for grammar or clarity, but the substance of this decision will remain unchanged.

[5] Martin Galen Jan Vandenberg is charged on a one-count indictment with second degree murder on or about December 6, 2017. The victim named in the indictment, Heather Jones, was Martin Vandenberg’s mother. The events in question took place at her home on Salt Spring Island. These facts alone foreshadow the tragic nature of the events that give rise to the charge in this case.

[6] This matter is before me for trial. The sole issue raised by the defence at the outset of the trial is whether Martin Vandenberg is not criminally responsible for the murder of his mother because, at the time he committed the acts resulting in her death, he was suffering from a mental disorder that rendered him incapable of knowing that his acts were wrong. The defence is relying on the second branch of the mental disorder test outlined in s. 16(1) of the Criminal Code, R.S.C. 1985, c. C‑46.

[7] The issue of NCRMD has been raised with the consent of the Crown, and the matter proceeded before me essentially as a joint submission. Both Crown and the defence submit that on the bases of the agreed statement of facts, the expert opinion evidence of two forensic psychiatrists, and on the applicable law, the defence is made out.

[8] I have concluded that I am satisfied on the balance of probabilities that Mr. Vandenberg was suffering from a serious mental disorder at the time he killed his mother, and that he was not capable of knowing that what he was doing was morally wrong. My reasons are as follows.

BACKGROUND

[9] In structuring this judgment, I will briefly describe the background facts and the expert psychiatric opinions before I turn to the applicable law and my analysis. Since Martin Vandenberg was referred to in the agreed statement of facts as M.V., I will refer to him by his initials in this judgment as well.

[10] The agreed statement of facts and supporting documents set out the events surrounding the murder in detail. Given the quantity of the material, I will only briefly review some of the more pertinent facts.

[11] In the agreed statement of facts, M.V. admits that he committed the actus reus of murder and admits that he beat his mother to death with a baseball bat. He then dragged her body to the bathtub in the downstairs bathroom of his mother’s residence and covered her body with towels and bed linen. The principle cause of death of Heather Jones was blunt force trauma to the head. Heather Jones’s two pet Chihuahua dogs were also found deceased on the floor of the bathroom, and both had died from blunt force trauma to the skull.

[12] Heather Jones’s body was found by her mother Betty Jones, and her sister, Chelsea Jones when they had gone to check on Heather on December 6, 2017, at approximately 11:50 a.m. Earlier that morning Chelsea had phoned Heather because she was concerned about statements made by M.V. the night before.

[13] When Betty and Chelsea arrived at the residence they found M.V. on his hands and knees cleaning the banister wall and floor with a cloth. There was blood on the floor beside him. Betty and Chelsea checked the downstairs bedroom and then proceeded to the downstairs bathroom. Chelsea saw what she thought was a pile of laundry in the corner of the bathroom and looking more closely, she saw a foot sticking out from underneath the pile of clothing or blankets. Betty lifted a corner of the blanket and saw blood, and knew that it was Heather Jones, whom she believed to be deceased.

[14] Betty Jones called 9‑1‑1 and Constable Van de Sype arrived at around 12:14 p.m. He was followed by other officers. Ultimately Constable Van de Sype located M.V. on the second floor balcony of the residence and placed him under arrest. M.V. was compliant with being handcuffed, and Constable Van de Sype described M.V. as looking like he was in a “catatonic state”.

[15] A silver aluminum baseball bat propped up on a pile of blankets in a small bathtub was located at the scene. The baseball bat was smeared with what appeared to be blood.

[16] M.V. was re‑arrested for murder at the Salt Spring Island detachment, and ultimately, after speaking to a lawyer, provided a statement that commenced at 9:33 p.m. The statement was audio and videotaped. A video and audio excerpt of that interview was played at the trial, and I reviewed the corresponding transcript.

[17] In the interview, M.V. initially provided a false account of what had happened, saying that he had killed his mother with a baseball bat in response to an argument about his father in which his mother threatened M.V. with a screwdriver. He then recanted this and said that he had been hearing voices which repeatedly threatened him. The voices told him that unless he killed his mother, unspeakable acts would occur, including that both he and his mother would be raped and then killed.

[18] At approximately 12:35 p.m. on December 7, 2017, M.V. was apprehended under s. 28 of the Mental Health Act, and transported to Lady Minto Hospital. M.V. was committed as an involuntary patient, and then transported to the Royal Jubilee Hospital.

[19] On January 5, 2018, M.V. was re‑arrested for murder at the Royal Jubilee Hospital. Later that evening, a warned audio and videotaped interview was conducted with M.V. Again an audio and video excerpt of that interview with the corresponding transcript is attached to the agreed statement of facts. The video and audio excerpt of that interview was played during the trial as well.

[20] I pause to note that in the second interview, M.V. appears to be more emotionally responsive when recounting the offence of December 6, 2017 than he appeared in the first interview. At many points, he was comforted by the interviewing officer who provided him with reassurance that he was “safe”. Again, he spoke about voices telling him “to do stuff over and over again”, and that he “got rid” of his mother because he did not want her to go through a worse fate.

Evidence of mental disorder prior to the offence

[21] The agreed statement of facts outlines evidence that M.V. was exhibiting a mental disorder prior to the offence. This evidence is compelling. This evidence includes the fact that in November 2017, several weeks before the offence, Chelsea and Betty Jones had tried, without success, to assist M.V. to get mental health or counselling help.

[22] Further in November 2017, the RCMP had become involved with M.V. because he had lodged a complaint about Sue House, who was living on M.V.’s father’s property in a recreational vehicle. Around the middle of November, M.V. called the police and complained that Ms. House had guns and was threatening him. The police attended and quickly determined that there was no substance to this complaint.

[23] On November 17, 2017, another witness, Fern Heck, was at M.V.’s father’s house when M.V. told her that he was hearing voices, he did not like what they were telling him, and he needed help. M.V.’s father, Buck Vandenberg, said that for four days prior to the offence, M.V. was waking up and telling him there were people talking about him. M.V. told him that there were bugs all over the house and that he believed people were listening to him.

[24] The day before the offence, December 5, 2017, M.V.’s father Buck Vandenberg took M.V. to the Lady Minto Hospital. They saw an emergency room doctor and ultimately a mental health nurse. The emergency room notes of that attendance include the note:

… Slow deliberate speech, slow gait, stooped posture.

... Blunt Affect. Tangential and circumstantial speech.

Evidence of delusions, believing neighbour has installed listening devices in home.

[25] The mental health nurse notes from that date include a notation that “an appointment to see patient and his father for Friday 08-Dec-17 at 13:30 to fill out an MHSU referral.”

[26] After leaving the hospital, M.V. got a ride with his mother Heather Jones who was driving a taxi. His father assumed that M.V. would return to his father’s home to sleep for the night, but that never happened.

Evidence of mental disorder after the offence

[27] Michelle Bauer, an employee of M.V.’s mother Heather Jones, was the first person to have contact with M.V. after the offence was committed. She went to the door of Heather Jones’s residence looking for “trip sheets” for the taxi business. She arrived there at around 8:30 a.m. on December 6 and M.V. answered the door and said that Heather was not home. Michelle Bauer saw Ms. Jones’s two Chihuahuas on the bed barking. Ms. Bauer told M.V. where the trip sheets were, and M.V. got them for her. Michelle Bauer describes M.V. as vacant and pale, in a daze, and “not really there”.

[28] As I have noted, Heather Jones’s sister Chelsea, and her mother Betty Jones had attended Heather’s house later that morning when they found what turned out to be Heather’s body in the bathtub covered with towels and bedding. They described the fact that M.V. did not appear upset or distressed when they came to the house, ostensibly to check for mold. He simply carried on cleaning.

[29] The agreed statement of facts details excerpts from the records of various institutions that dealt with M.V. after the offence. The records include the Lady Minto Hospital records, Royal Jubilee Hospital records, Vancouver Island Regional Correctional Centre records (two sets), and Forensic Psychiatric Hospital records (two sets). I will not for this purpose say anything about the records, other than many of them were reviewed by the two expert psychiatrists who testified in this case.

[30] Both experts testified to the effect that it is rare to see background materials as comprehensive as in the case at bar, and therefore their opinions are bolstered by the comprehensive nature of the background materials.

[31] M.V. was sent to the Forensic Psychiatric Hospital for a fitness assessment early in this court proceeding. Ultimately, in March 2018, he was found fit to stand trial.

THE PSYCHIATRIC EVIDENCE

Dr. S. Lohrasbe

[32] Dr. Shabehram Lohrasbe testified on this trial on behalf of the defence. He was qualified as an expert forensic psychiatrist, qualified to diagnose mental disorders and mental state at the time of the offence. Dr. Lohrasbe was retained by the defence. His report is marked as Exhibit 4 on this trial. His report and opinion relied on a direct interview with M.V. for approximately two and a half hours, along with a review of various witness statements, police interviews of M.V., and other psychiatric opinions.

[33] In his report, Dr. Lohrasbe sets out his file review, which he describes as “selective and not exhaustive”. Dr. Lohrasbe opines that two diagnoses are applicable to M.V. at the time of the offence: schizophrenia and cannabis use disorder. The latter he describes as “a problematic pattern of cannabis use that leads to clinically significant impairment or distress.”

[34] With respect to mental state at the time of the offence, in his report and in his testimony, Dr. Lohrasbe describes his four-step approach to his opinion, which he describes as follows.

[35] Step One: Is there information that points to the presence of a major mental disorder that has had a significant impact on functioning prior to the predicate offences?

[36] In his opinion, there is overwhelming evidence, both subjective and objective, that Mr. Vandenberg was psychotic at and around the time of the homicide. In his opinion, M.V.’s psychotic state resulted from his undiagnosed schizophrenia.

[37] Step Two: Is there information that indicates the active presence of symptoms of a major mental disorder at and around the time of the offence?

[38] Again, Dr. Lohrasbe is of the view that there is solid subjective and objective data that Mr. Vandenberg was actively psychotic resulting from schizophrenia in the days and hours surrounding the predicate offence.

[39] When asked whether he could opine on when M.V. might have first begun to suffer from schizophrenia or when the diagnosis was first able to be made, Dr. Lohrasbe said the following at the trial [as read in]:

No. That's one of the tragedies of this disease. That it can be simmering and building, and family members and friends, it’s not obvious because it is cumulative. And what can start off as something that you just dismiss as someone having an off day or being a little bit strange, starts to build up, and it's easy to attribute it to he’s stressed, he’s lonely, he’s broken up with his girlfriend, he’s smoking too much dope, whatever the case may be, until it breaks through and becomes obvious and flamboyant.

It seems from the account of all of the people who knew him that I read that it became that way. It became obvious relatively proximate to the predicate offence. It wasn’t like he was actively psychotic for months or years. It was likely days and weeks.

And that’s the tragedy. That often times it builds up and understandably it is very difficult for lay people, particularly family, to recognize what is going on. We rely on the mental health system to be able to see the trend and make the diagnosis. It’s not possible for lay people to come to that opinion.

[40] Dr. Lohrasbe noted in his testimony that he did not have the emergency room records at the time of his report, and that those records enhance his opinion.

[41] Step Three: Is there information to support the view that symptoms of mental disorder were the most important or essential elements in the offence?

[42] On this step, Dr. Lohrasbe opines that there is much in the available information that points to the psychosis being the major factor that drove M.V. to kill his mother. As he notes, the only information that indicated any conflict with his mother immediately prior to the homicide comes from M.V. himself. That relates to M.V.’s initial account that his mother was waving a screwdriver at him and that he needed to defend himself with a baseball bat. Dr. Lohrasbe notes that M.V.’s actions were driven by his delusional belief, prompted by auditory hallucinations, that by killing his mother he would save her from a worse fate.

[43] In his consideration of this step, Dr. Lohrasbe notes that M.V. has no prior history of significant violence, and that the violence he perpetrated against his mother was extreme, seemingly coming “out of nowhere”. He therefore opines that M.V.’s “psychotic symptoms were the dominant factors that drove his violence.”

[44] Step Four: Does the available information support a direct link between psychiatric findings and the legal criteria?

[45] Here, Dr. Lohrasbe outlines his understanding of the development of the jurisprudence and his understanding that it has become expected for the clinical findings of the assessing psychiatrist be linked to the legal criteria. Accordingly, although he does this in his report at p. 24, he does so with his caveat that this final step is tentative since he was trained to avoid addressing the ultimate legal issue for practical and ethical reasons. In this context, “tentative” does not relate to the strength of his opinion, but rather his reluctance to tread on the role of the judge. With respect to the strength of his opinion, Dr. Lohrasbe testified that it was “quite strong” and that he was “confident” in his opinion.

[46] In this step, Dr. Lohrasbe opines that “the available information indicates that Mr. Vandenberg was in a prolonged psychiatric mindset at and around the time he killed his mother. Within that mindset, it is unlikely that he was capable of knowing that his actions were morally wrong in the real world.”

Dr. T. Tomita

[47] Dr. Todd Tomita was qualified as a forensic psychiatrist to give opinion evidence in this area. Dr. Tomita was retained by Crown counsel, and provided an opinion dated March 23, 2019, which was marked on the trial as Exhibit 6. Since M.V. did not consent to be interviewed by Dr. Tomita, the assessment was based on file information only.

[48] At p. 2 of his report, Dr. Tomita outlines that the main limitation with his report is the fact that he did not interview M.V. He states that he is unable to make a diagnosis of any psychiatric disorder that M.V. may have, but he is able to opine on whether the data he reviewed conforms with the expected symptoms, behavioural presentation and functional impairments that one would expect to see in an individual suffering from a psychiatric disorder.

[49] Although Dr. Tomita’s opinion is limited by his lack of interview of M.V., he testified that he considered Dr. Lohrasbe’s report and interview in forming his opinion. He too was of the view that the file materials were extensive. Dr. Tomita testified he was “quite confident” in his opinion, given the extensive file material.

[50] Although Dr. Tomita's opinion does have the limitation of no interview, I am of the view that his opinion is equally helpful to my task given all of the available material that he was able to review.

[51] I will not set out Dr. Tomita’s two-step approach to the task, which is similar to Dr. Lohrasbe’s approach, except he collapses four steps into two. Ultimately, at paras. 154 and 155 of his report, at p. 16, Dr. Tomita opined [as read in]:

Mr. Vandenberg’s capacity to make rational decisions was substantially impaired given the irrational and psychotic assumptions that were the foundations for his choices. Given Mr. Vandenberg's psychotic state was causing him to reason from irrational and bizarre beliefs, it appears likely that in his frightened state, when he chose to attack and kill his mother, Mr. Vandenberg believed that it was a morally justified act.

Based on these considerations from a psychiatric perspective, I would conclude that Mr. Vandenberg was likely suffering from a psychotic episode produced by schizophrenia that rendered him incapable of knowing that his actions were morally wrong at the material time. It appears likely that Mr. Vandenberg has a s. 16(1) defence of mental disorder available to him.

LEGAL FRAMEWORK

[52] I turn now to the legal framework which I must use to guide my decision in this case. Justice Humphries, in R. v. Harvey, 2014 BCSC 1692, at para. 16, outlined the order in which the court considers the actus reus, mens rea and NCRMD defence. The court first considers whether the Crown has proven the actus reus beyond a reasonable doubt. If the Crown has proven the actus reus beyond a reasonable doubt, the court next examines whether the party that raised the issue of NCRMD has established that NCRMD applies, on a balance of probabilities. If the court determines NCRMD does not apply, the court examines whether the Crown has proven mens rea beyond a reasonable doubt.

[53] Here, since the actus reus of second degree murder is admitted, I can proceed to consider the NCRMD defence raised by the defence with the agreement of Crown at the outset of this trial. M.V. has the burden of proving on a balance of probabilities that at the time of Ms. Jones's murder, he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts or of knowing they were wrong, pursuant to s. 16(1) of the Criminal Code. Section 16(1) of the Criminal Code reads:

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

[54] I must first consider whether or not M.V. suffered from a mental disorder at the time of the murder. The term mental disorder is defined in s. 2 of the Criminal Code as a disease of the mind.

[55] Justice Dickson, as he then was, writing for the majority in R. v. Cooper, [1980] 1 S.C.R. 1149 (“Cooper”) summarized what is meant by disease of the mind at 1159:

In summary, one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of insanity the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong.

[56] Justice Dickson in Cooper emphasized that “[a]lthough the term expresses a legal concept and a finding is made according to a legal test, psychiatric knowledge is directly linked to the legal conclusion, for medical testimony forms part of the evidence on which the trier of fact must reach its decision” (1153). In quoting the Ontario Court of Appeal in R. v. Simpson, 16 O.R. (2d) 129, Justice Dickson outlined the legal position with respect to the division between the psychiatrist's function and a trial judge’s function (1157 - 1158):

... It is the function of the psychiatrist to describe the accused's mental condition and how it is considered from the medical point of view. It is for the judge to decide whether the condition described is comprehended by the term “disease of the mind”. (at p. 349-50)

Justice Dickson commented that trial judges are permitted to allow psychiatrists to be asked whether or not the condition constitutes a disease of the mind (1158).

[57] In the event I find M.V. suffered from a mental disorder at the time of Ms. Jones’s murder, I must next determine whether there is a direct connection between M.V.’s mental disorder and the murder. There are two routes or branches to finding an accused NCRMD. As I have noted, counsel relies only on the second branch. The second branch requires me to examine whether M.V. was incapable of knowing that his acts were wrong. These legal principles are not controversial.

[58] As outlined by Chief Justice Lamer, for the majority, in R. v. Chaulk, [1990] 3 S.C.R. 1303, “wrong” means “morally wrong”, as opposed to merely “legally wrong”. Chief Justice Lamer stated that the defence of insanity is available where, due to a disease of the mind, the accused is “incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society” (1354). The court further clarified that the defence of insanity is available regardless of whether the accused know the act is contrary to law (1355-1356).

[59] Chief Justice Lamer, borrowing from the House of Lords’ wording in M'Naghten's Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718, clarified what the trier of fact is to ask herself or himself when determining whether an accused was incapable of knowing the act was morally wrong: “whether an accused was rendered incapable by the result of his mental disorder of knowing that the act committed was one that he ought not have done” (1354).

[60] In determining whether an accused was incapable of knowing the act was wrong, Justice McLachlin, as she then was, for the Court in R. v. Oommen, [1994] 2 S.C.R. 507 at 518 emphasized that:

The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.

ANALYSIS

[61] As has been noted by the experts, Dr. Lohrasbe and Dr. Tomita, it is rare for there to be such comprehensive background material supporting a defence of not criminally responsible by reason of a mental disorder. Here, there is overwhelming evidence that Martin Vandenberg was suffering from schizophrenia, and that he was actively psychotic in the days prior to the offence. Both psychiatrists are agreed in their opinion and both describe those opinions as confident.

[62] As noted in R. v. Schoenborn, 2010 BCSC 220 at para. 243, I am not bound by the experts' opinions, but in a case such as this, where both experts agree, I must be very careful before I reject their opinions.

[63] Although Dr. Lohrasbe also diagnoses M.V. with a cannabis use disorder, there is ample evidence that schizophrenia existed in the absence of cannabis. In that regard, both experts pointed to the fact that M.V. was still exhibiting symptoms in the Forensic Psychiatric Hospital on a secure ward, where it can be presumed he did not have access to cannabis.

[64] Having considered all of the available evidence, I am satisfied on a balance of probabilities that M.V. suffered from schizophrenia, which is a disease of the mind, within the meaning of Cooper. The evidence is uncontradicted and amply supported on all of the background facts. Crown and defence agree the evidence supports the diagnosis of schizophrenia and the fact it was present at the time of the offence.

[65] I find the evidence is in fact overwhelming that M.V. was experiencing schizophrenia and was actively psychotic at the time of the offence. He was under the delusional belief that killing his mother would save her from a worse fate. M.V.’s schizophrenia rendered him incapable of knowing that his actions were morally wrong.

[66] There is no other reason or motive that emerges from the evidence. It appears M.V. loved his mother, as she loved him. Again, that is one of the great tragedies of this case.

[67] In the result, I find Martin Vandenberg committed second degree murder of his mother Heather Jones and is not criminally responsible by reason of a mental disorder.

[68] Counsel, do you wish me to refer this matter to the Review Board to make a disposition pursuant to s. 672.47 of the Criminal Code?

[69] MR. BLAZINA: Yes. I am also going to be asking for a couple of ancillary orders, My Lady.

[70] THE COURT: All right.

[71] MR. HEMPHILL: But I -- I agree with that proposal, My Lady.

[72] THE COURT: All right. I will make the order then that Mr. Vandenberg will be referred to the Review Board to hold a disposition hearing pursuant to s. 672.47.

[73] I wanted to express to the family that judges here make a legal decision, but in doing so, we are not immune to the human tragedy, and in that regard I wanted to offer you my condolences.

[74] To Mr. Vandenberg I wanted to indicate to you that I hope that you are able to use your time with the mental health assistance that will be provided to you in order to deal with your mental illness.

[75] The ancillary orders?

[76] MR. BLAZINA: Yes, 672.45, My Lady, if I can just refer you to that, and in particular subsection (1.1). Does My Lady have that now?

[77] THE COURT: I have it.

[78] MR. BLAZINA: Okay. So if the court does not hold a hearing under subsection (1), which is the case here, it shall send without delay, following the verdict, in original or copied form, any transcript of the court proceedings and any other document or information, and all exhibits filed with it, to the Review Board -- and then comes the caveat -- if the transcript, document, information or exhibits are in its possession.

[79] Well, certainly the exhibits and relevant documents are in the Court's possession. I am going to ask Your Lady to consider making an order for the production of the transcripts in this matter so that those can be in the court's possession so that they can be forwarded to the Review Board.

[80] THE COURT: All right. I am going make an order for a copy of this decision to be transcribed on an expedited basis, and a copy of that transcript will be forwarded to the Review Board, along with all of the documents and information related to these proceedings, including the exhibits filed with the Court.

[81] THE COURT: So that will be the copies, Madam Registrar, just to be clear. The original exhibits will be kept with the court.

[82] MR. BLAZINA: Yes.

[83] THE COURT: I will also order that a copy of the transcript will be provided to Crown counsel and to defence counsel.

[84] MR. BLAZINA: And then I wonder, My Lady, and if you would also consider ordering that a transcript of the actual proceedings so that the court has -- so that the Review Board has, in addition, the evidence of the experts that was given on the stand.

[85] THE COURT: Yes. I am prepared to make an order that the proceedings at trial, which as I have indicated occurred from September 17 to 19, will also be transcribed and provided to the Review Board. Again, that transcript will be prepared on an expedited basis.

[86] MR. BLAZINA: Thank you, My Lady. And the only other auxiliary or ancillary order I was going to ask Your Ladyship to consider is an order under s. 487.051(3), and this is a discretionary order.

[87] THE COURT: So I just want to find it -- 487.05?

[88] MR. BLAZINA: 487.051(3). And it is for the taking of a DNA sample. The offence of murder is listed as a primary designated offence under 487.04, and 487.051(3) says:

The court may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of justice to do so, make such an order in Form 5.04 [which is of course a DNA order] in relation to

(a) a person who is found not criminally responsible on account of mental disorder for an offence committed at any time, including before June 30, 2000, if that offence is a designated offence when the finding is made;

[89] Of course we are in September 2019, and under 487.04, obviously the offence of murder is a primary designated offence.

[90] THE COURT: The section again -- I did not have it at the time you were reading. I think I have it now, 487.05, and what is the sub --

[91] MR. BLAZINA: Yes, 487.051, and then you will see (1) is a mandatory order, (2) is a mandatory order, (3) is a discretionary order that applies under (3)(a) to a person found NCRMD, if the offence is a designated offence. And under 487.04, the offence of murder is a primary designated offence.

[92] Does My Lady have that section now?

[93] THE COURT: Oh, I was looking -- I was looking at 487.05, but it is 487.051 --

[94] MR. BLAZINA: Right.

[95] THE COURT: -- (3).

[96] MR. BLAZINA: -- (3)(a).

[97] THE COURT: All right. So did you have any submissions with respect to that, Mr. Hemphill?

[98] MR. HEMPHILL: I only note, My Lady, that the direction with respect to what the court ought to consider before making such an order is in the body that follows (a) and (b):

In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact … on the person’s privacy and security …

[99] Clearly in this case, there is no criminal history that has been alleged whatsoever, and no previous findings of NCRMD. Both of those certainly weigh in favour of not making the order, as does the impact upon a person's privacy and security.

[100] I certainly concede that this is an extraordinarily serious matter, and one in which one might expect that DNA could possibly be a tool that would assist in discovering an offender, but nonetheless, I do urge the court to consider those countervailing factors that the court is directed to consider.

[101] It seems unlikely, frankly, that this man, should he be released in the future, would be likely to find himself in similar circumstances because he will be under this close -- close supervision of the Review Board.

[102] THE COURT: All right. Well, thank you very much, Mr. Hemphill, for that submission, and to you, Crown counsel.

[103] Although it is a discretionary order, I am of the view that I should exercise my discretion in favour of making an order that Mr. Vandenberg provide a sample of his DNA and that sample be obtained by the least intrusive means possible.

[104] I recognize that the countervailing considerations set out in s. 487.051(3), which include the fact that Mr. Vandenberg has no appreciable criminal record prior to this incident, and the circumstances of the commission. Nevertheless, I am of the view that this is among the most serious offences in the Criminal Code, and the nature of the violence and the fact that it emerged so quickly weighs in favour of obtaining that sample, and I do so order.

[105] MR. BLAZINA: Thank you, My Lady. I think those were the only matters that I wished to draw to Your Ladyship's attention.

[106] THE COURT: I think the last thing that I should order is that Mr. Martin Vandenberg will be held at the Forensic Psychiatric Hospital pursuant to s. 672.46 until a disposition is held by the Review Board.

[107] I wanted to thank both counsel for the sensitive and comprehensive way in which this matter was argued, and in that way you provided great assistance to the Court. Thank you.

[108] MR. BLAZINA: Thank you, My Lady.

“J. A. Power, J.” - The Honourable Madam Justice J. A. Power

October 28, 2019 10:49 AM

  • Avatar SSIDancer says:

    i am not too sure why this publication felt it necessary to print this transcript for public consumption. This is a very unusual and questionable act in my opinion. The community was been traumatized by this event when it happened and the courts found the young man not guilty by reason on insanity which was published in provincial and lthe local paper which also felt they should share details of the death etc.to the extent seldom if ever seen in newspaper publishing in the press in this country. Now we have this comprehensive account circulating within the community.
    i question as to how much thought was given to the immediate family of Martin as well as the several families related to Martin here in the community having to deal with this once again both within their family group and as with the community once again as they go about their lives.
    Perhaps those responsible for this publication would be so gracious as to explain their thoughts and reasoning as to why they felt it necessary to release this transcript as opposed to simply placing a link to it for those who wish to view it.