Schoenborn Not Criminally Responsible for Killing Children

Allan Dwayne Schoenborn committed a crime so horrendous the judge found he could not be held criminally responsible for his acts, because no reasonable or rationale person could do such a thing.

“I find that Mr. Schoenborn did commit the first-degree murder for each of his children … but is not criminally responsible on account of mental disorder,” Justice Robert Powers of B.C. Supreme Court ruled.

The children – Kaitlynne, 10, Max, 8 and Cordon, 5 – had been placed in their father’s care for a night by Mr. Schoenborn’s estranged common-law-wife, who had just told him reconciliation was impossible.

When Darcie Clark returned to her trailer home in Merritt, B.C., on April 6, 2008, she found her three children arranged as if sleeping. They had been smothered and the girl had been struck repeatedly with a cleaver. Scrawled in blood and soy sauce were the messages “Forever Young” and “Gone to Neverland.”

Crown lawyer Glenn Kelt, argued that Mr. Schoenborn was motivated by wanting to punish Ms. Clark. He waited until the children were asleep. He attacked his daughter with a cleaver, and when that didn’t kill her, he smothered her. He then smothered and strangled his little boys.

Mr. Schoenborn, a Vancouver roofer with a Grade 9 education and a history of mental illness, had followed the family to Merritt in hopes of reconciling with Ms. Clark. Just weeks earlier, he had pleaded guilty to violating a protection order that was put in place after he was accused of sexually assaulting her.

The trial heard that Mr. Schoenborn was consumed by jealousy and paranoia. When Ms. Clark told him she was expecting their first child, he began accusing her of being unfaithful.

He had been treated for psychotic illness, but refused to take his medication. In the months before the killings, he lost his job, was homeless and had been told a reunion with his family was impossible.

Mr. Schoenborn’s case has raised questions about government support for domestic-violence prevention and about how bail hearings are managed.

Days before the children were killed, Mr. Schoenborn was arrested over a disturbing incident at Kaitlynne’s elementary school. He was charged with two counts of uttering threats to cause bodily harm after he threatened a young girl who had upset his daughter.

Police asked that Mr. Schoenborn be held in custody over the weekend until April 7, when he could be brought before a judge in person.

Instead, in a bail hearing by telephone, justice of the peace Fraser Hodge agreed to free Mr. Schoenborn.

“I know we’re close to the line here on this one, but I am going to give Mr. Schoenborn a chance,” Mr. Hodge concluded. “I want you to remember that you got a good break on this, and, you know, appreciate that. Don’t let anything wrong,” he told Mr. Schoenborn.

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Schoenborn,

2010 BCSC 220

Date: 20100222

Docket: 84906

Registry: Kamloops

Regina

v.

Allan Dwayne Schoenborn

Before: The Honourable Mr. Justice Powers

Reasons for Judgment

Counsel for the Accused:

P.J. Wilson, Q.C.
R. Gill

Counsel for the Crown:

G.S. Kelt, Q.C.
S. Mark

Place and Date of Trial:

Kamloops, B.C.
October 8, 9, 13-16, 19-23, November 27, 30,
December 1-4, 2009, and January 11-15, 18, 20-22, 2010

Place and Date of Judgment:

Kamloops, B.C.
February 22, 2010

INTRODUCTION

[1] Mr. Schoenborn killed his three children on April 6, 2008 at Merritt, British Columbia. The children’s names are Kaitlynne Theresa Schoenborn, 10 years of age, Max Daniel Schoenborn, 8 years of age, and Cordon Riley Schoenborn, 5 years of age. He is charged with three counts of first degree murder. The issues are whether he is guilty of first or second degree murder, or whether he should be found not criminally responsible by reason of mental disorder, within the terms of s. 16 of the Criminal Code of Canada (the “Code”).

[2] The identification of Mr. Schoenborn, of the children as the deceased, and the time and place of their death are admitted.

[3] Mr. Schoenborn’s position is that at the time of the killings he was suffering from a major mental disorder, either delusional disorder or paranoid schizophrenia. He argues that due to this illness he believed the children were at risk of a life of drugs, and physical and sexual abuse. He argues he believed that there was no other way for him to protect them except to kill them. He argues that due to his illness he was unable to appreciate that his actions were morally wrong in the circumstances.

[4] In the event s. 16 of the Code does not apply, he says that the correct verdict is second degree murder and not first degree murder.

THE LAW

Murder – First Degree or Second Degree

[5] Murder includes intentionally killing a human being. Murder may be first degree or second degree. Here the Crown says it should be first degree because it was planned and deliberate.

[6] A planned murder is one that is conceived and thought out before it is committed. The murder is pursuant to a plan or design created before the murder. The plan may be simple and may be formulated shortly before the murder.

[7] Deliberate means more than intentional. It means carefully thought out and not hasty, rash or impulsive. A person commits deliberate murder when he or she thinks about the consequences before committing the murder. In other words, they think about the advantages or disadvantages.

[8] The killing must be done after careful thought, but it need not be long thought, so long as the killing is not done suddenly or impulsively, or under the influence of some emotion or passion.

[9] The burden to prove the offence of first degree murder is on the Crown. The Crown is obliged to prove each and every element of the offence beyond a reasonable doubt. The accused is presumed to be innocent until proven guilty.

[10]Mr. Schoenborn has raised the defence of s. 16 of the Code sometimes referred to as NCRMD or mental disorder defence. Section 16(1) provides:

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.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

[11] Mr. Schoenborn has raised the defence and, therefore, the burden is on him to prove the defence on the balance of probabilities. The balance of probabilities is a different standard than proof beyond a reasonable doubt which applies to the Crown in proving the offence.

[12] A party who has the burden of proof on an issue, on the balance of probabilities, must convince the court that what they assert is more probable than not, and that the balance is tipped in his or her favour. The evidence must be more convincing than the evidence on the other side. The person with the burden must show that what they assert is more probable than not (F.H. v. McDougall, 2008 SCC 53). If the evidence on an issue was evenly balanced so that the court is unable to say where the balance of probabilities lies, then the person who has the burden of proving it would have failed to do so. All of the evidence produced on that issue must be considered, no matter who has produced that evidence. In order to find that something has been proven on the balance of probabilities, it is not necessary for the jury or the trier of fact to be sure, but simply to find that the event to be proven is more probable than not or more likely than not.

[13]Proof beyond a reasonable doubt is sometimes explained to a jury by telling them that on a scale with balance of probabilities on one end, and certainty at the other, that proof beyond a reasonable doubt would lay much closer to certainty than to probably or likely guilty. The jury is told it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to. The jury is often told that if, based upon the evidence before the court, they are sure that the accused committed the offence, then they should convict since this demonstrates that they are satisfied of guilt beyond a reasonable doubt.

[14] In summary, the Crown must prove each and every element of the offence of first degree murder beyond a reasonable doubt. The accused must prove on the balance of probabilities that the defence of NCRMD applies. I will deal with these in more detail later.

[15]When the Crown closed its case, the defence raised the issue of s. 16 (NCRMD) and called evidence. The Crown called evidence in rebuttal limited to NCRMD.

[16] Prior to submissions, I asked counsel to identify the issues. Mr. Schoenborn, through counsel, said that there was an issue as to whether or not the killings were first degree murder or second degree murder.

[17] Mr. Schoenborn described the manner in which he killed his children and the fact that he changed the method for each child. Before killing his children, he spent considerable time thinking about whether or not it was something he should do, or whether there was some alternative. He concluded, according to his evidence, that he killed them because it was the only way to save them from a life of abuse. He separated the children before he killed them. He did this so that they would not be aware of what was happening, resist, or escape. He waited until they were asleep before he killed them.

[18] All of the evidence leads to the inevitable conclusion that the killings were planned and deliberate. Mr. Schoenborn understood what he was doing and intended to cause the children’s death.

[19]The Crown has proven beyond a reasonable doubt that Mr. Schoenborn did commit first degree murder when he killed each of his three children.

[20] The only question is whether or not s. 16 of the Code applies and whether or not Mr. Schoenborn should be found criminally responsible.

Section 16 – Mental Disorder Defence or NCRMD

[21] The present Code refers to a mental disorder. In the past the Code used the word “insanity”. In discussing the Code as it stood in 1990 before the amendments, Mr. Justice Lamer, speaking for the majority of the Supreme Court of Canada, said in R. v. Chaulk, 62 C.C.C. (3d) 193 (SCC):

[21]…some basic assumptions of our criminal law model: that the accused is a rational autonomous being who is capable of appreciating the nature and quality of an act and of knowing right from wrong. … With the state of insanity, these basic assumptions are brought into question because the accused is suffering from some disease of the mind or from some delusions which cause him or her to have a frame of reference which is significantly different than that which most people share. This mental condition means that the accused is largely incapable of criminal intent and should not, therefore, generally be subject to criminal liability in the same way that sane people are.

[22]Mr. Justice Lamer referred to it as an exemption from the criminal liability. Madam Justice McLachlin in a later decision referred to it as an exemption from criminal responsibility (R. v. Oommen, 91 C.C.C. (3d) 8).

[23] Section 16 recognizes that in some cases a person charged with a crime may suffer from a mental disorder that is so severe that we cannot hold them criminally responsible for what they have done however serious the nature or consequences of their crime.

[24]The issues are:

1. whether Mr. Schoenborn was suffering from a mental disorder at the time he killed his children and acted as a result of that mental disorder; and

2. whether the mental disorder rendered him incapable of appreciating the nature and quality of his actions, or from knowing that killing his children was wrong.

[25] Section 16 refers to a mental disorder. Section 2 of the Code states that “mental disorder” means a “disease of the mind”. Both Crown and the accused referred to Cooper v. The Queen, [1980] 1 S.C.R. 1149 and the decision of Mr. Justice Dickson at p. 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.

[26] The Ontario Court of Appeal in R. v. Simpson (1977), 35 C.C.C. (2d) 337 stated at para. 38:

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”.

[27]The Crown pointed out in their argument that the evidence of medical witnesses with respect to the cause, nature and symptoms of the condition and how it is viewed and characterized from a medical point of view, is highly relevant to the determination whether a person suffers from a disease of the mind, but not determinative (R. v. Rabey (1977), 37 C.C.C. (2d) 461), 79 D.L.R. (3d) 414 (Ont. C.A.) affirmed [1980] 2 S.C.R. 513).

[28]The medical evidence in this case is clear that Mr. Schoenborn at present suffers from a severe or major mental disorder. Dr. O’Shaughnessy, called by the defence, says that he has a psychotic illness, either delusional disorder or possibly schizophrenia. Dr. Lohrasbe, called by the Crown, agrees that at present Mr. Schoenborn suffers a psychotic illness that may be a delusional order or schizophrenia.

[29]A major mental disorder or psychotic illness, such as delusional disorder or schizophrenia, falls within the definition of a disease of the mind or a mental disorder for the purposes of s. 16 of the Code.

[30]The question in this case is whether Mr. Schoenborn suffered a mental disorder at the time he killed his children and what affect that had upon his actions, his understanding and appreciation of his actions.

[31]In determining whether Mr. Schoenborn suffered a mental disorder at the time of the offence, I can consider the evidence of the experts, but as well, all of the evidence. As pointed out by Mr. Justice Dambrot in the decision R. v. Fell, [2003] O.J. No. 1145, Ontario S.C.J. at para. 455:

[455]In deciding this issue, I am entitled to take into consideration the opinions of the experts concerning Mr. W.G.F.’s mental state at the time of the homicide. I am also entitled to take into account their opinions of his mental state at times prior to and subsequent to the homicide, and make use of that evidence circumstantially to assist in determining his mental state at the relevant time. Of course, I am not confined to the expert evidence in deciding this issue. In addition to the opinions of the experts, I can, in accordance with the principles I outlined in my discussion of hearsay evidence, take into consideration and use circumstantially the evidence of Mr. W.G.F.’s self-reporting about his mental state and his behaviour, as well as any other evidence of his behaviour at the time of the homicide, prior to the homicide and subsequent to the homicide, including the notes that he recorded on his computer. In the end, however, on this issue, the expert evidence is of crucial importance.

Did Mr. Schoenborn appreciate the nature and quality of the act?

[32] The Supreme Court of Canada dealt with this issue in R. v. Landry, [1991] 1 S.C.R. 99 at para. 24:

This Court has made it clear on a number of occasions that the first branch of s. 16(2) refers to an incapacity to appreciate the physical character of and the physical consequences which flow from an act or omission: Cooper v. The Queen, [1980] 1 S.C.R. 1149; Kjeldsen v. The Queen, [1981] 2 S.C.R. 617; R. v. Abbey, [1982] 2 S.C.R. 24. Collateral factors, such as an accused’s emotional attributes (Kjeldsen) or his or her capacity to appreciate the penal consequences associated with an act or omission (Abbey), are not relevant under the first branch of s. 16(2).

[33] The accused quite properly concedes that in this case all of the evidence heard at trial, and in particular the testimony of the psychiatrists and Mr. Schoenborn, indicate that he was able to appreciate not only the nature of his act in killing his children, but also the natural consequences that flow from it. Therefore, the first branch of s. 16 does not apply in this case.

Did Mr. Schoenborn know that it was wrong to kill his children?

[34] If Mr. Schoenborn was suffering from a mental disorder at the time he killed his children, did that mental disorder render him incapable of knowing that it was wrong? Crown and the accused agree on the law on this point. For the sake of completeness I will simply quote from portions of the Crown’s submissions beginning at page 8 through to page 12:

20 … Mr. Justice Dambrot in Fell, …:

477 This brings me to what I perceive to be the heart of the defence case. was Mr. Fell capable of knowing. at the time of the homicide. that his acts were wrong. The meaning of this second incapacity requirement of s. 16 was discussed by Lamer C.J. in R. v. Chaulk (1990), 62 C.C.C. (3d) 193 (S.C.C.), where he stated:

To paraphrase the words of the House of Lords in McNaghten’s Case, the courts must determine in any particular case whether an accused was rendered incapable. by the fact of his mental disorder, of knowing that the act committed was one that he ought not [to] have done.

Viewed from this perspective, it is plain to me that the term “wrong” as used in s. 16(2) must mean more than simply legally wrong. In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. This would be the case, for example. if the person suffered from a disease of the mind to such a degree as to know that it is legally wrong to kill but. as described by Dickson J. in Schwartz. kills “in the belief that it is in response to a divine order and therefore not morally wrong”. (p. 13)

In applying s. 16(2) to a particular set of facts, it may be established that the accused who attempts to invoke the insanity defence is capable of knowing that he ought not do the act because he knows, first, that the act is contrary to the formal law or, secondly, that the act breaches the standard of moral conduct that society expects of its members. In this regard, subject to the qualification discussed below, I approve of the interpretation of s. 16(2) put forward by Professor Alan Mewett in “Section 16 and Wrong”, 18 C.L.Q. 413 (1976), at pp. 415-16:

The question that ought to be asked it is submitted. is whether the accused, because of a disease of the mind (first hurdle) was rendered incapable (second hurdle) of knowing that this act was something that he ought not to do (third hurdle). If he was capable of knowing that the act was contrary to law and that he ought not to do an act contrary to law, then the defence should not apply. If he was incapable of knowing that it was contrary to law, but capable of knowing that it was an act condemned by people generally. then again the defence should not apply But if he was incapable of knowing that the act was contrary to law and incapable of knowing that it was an act condemned by people generally. then the defence should apply. This only leaves a situation where he was capable of knowing that the act was contrary to law but incapable both of knowing that to act contrary to law was condemned by people generally and of knowing that this particular act was condemned by people generally. I would have thought that such an accused (who must be the rarest of all individuals) is precisely one who ought to be found not guilty by reason of insanity.

The qualification that I would make of Professor Mewett’s comments is that the insanity defence should not be made unavailable simply on the basis that an accused knows that a particular act is contrary to law and that he knows. generally. that he should not commit an act that is a crime. It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by reason of a disease of the mind. believes that it would be “right” according to the ordinary morals of his society to commit the crime in a particular context. In this situation, the accused would be entitled to be acquitted by reason of insanity.

478 The rule was restated by Lamer C.J.C. in R. v. Ratti (1991), 62 C.C.C. (3d) 105 (S.C.C.) at p. 80. He stated:

In accordance with our decision in Chaulk, the trier of fact must be directed to consider whether the appellant was rendered incapable by reason of disease of the mind or “natural imbecility”, to know that his act was morally wrong in the circumstances. It is not sufficient to decide that the appellant’s act was a result of his delusion. Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such a delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society. [Emphasis in the original].

479 The Supreme Court returned to a consideration of the nature of the inquiry when [considering] this branch of s. 16(2) in R. v. Oommen (1994), 91 C.C.C. (3d) 8 (S.C.C.). At pp. 15-6, McLachlin J., as she then was, stated:

This appeal poses the following legal issue. What is meant by the phrase “knowing that [the act] was wrong” in s. 16(1)? Does it refer only to abstract knowledge that the act of killing would be viewed as wrong by society? Or does it extend to the inability to rationally apply knowledge of right and wrong and hence to conclude that the act in question is one which one ought not to do?

A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act.

The wording of s. 16(1) suggests this result. It proclaims that the focus is not a general capacity to understand that the act, say of killing, is wrong, but rather the act “committed” or omission “made”, i.e. the particular act or omission at issue in the criminal proceedings.

480 She also stated, at p. 17:

The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental dysfunctions; as the following passages indicate, these include at a minimum the states to which the psychiatrists testified in this case – delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.

… McLachlin J. also stated:

The issue is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person. … it may be that the nature of the delusion is to create a subjective impression in the accused’s mind that he must defend himself or himself be killed, akin to that present when the defence of self-defence is raised, but that is incidental. Thus the question is not [as suggested by the Alberta Court of Appeal] whether, assuming the delusions to be true, a reasonable person would have seen a threat to life and a need for death-threatening force. Rather, the real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. (page 16 and 17)

… Dambrot J. in Fell, supra:

481 To summarize:

(a) An accused will not be criminally responsible for an act committed while he was suffering from a mental disorder that rendered him incapable of knowing that the act was contrary to law, or that the act breaches the standard of moral conduct that society expects of its members.

(b) It is not sufficient to decide that the accused’s act was a result of a delusion. Even if the act was motivated by a delusion, the accused will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.

(c) The inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. The focus is not a general capacity to understand that the act, say of killing, is wrong, but rather the act “committed” or omission “made”, i.e. the particular act or omission at issue in the criminal proceedings.

(d) The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental dysfunctions. These include delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.

[35] Dr. O’Shaughnessy and Dr. Lohrasbe both expressed the opinion that if Mr. Schoenborn was acting out because of his psychotic delusions or his schizophrenia at the time he killed the children, that he would not have the capacity for rational perception and would not be able to make a rational choice about the rightness or wrongness of his acts. However, the Crown argues that there is additional evidence, some of which was not considered by either Dr. O’Shaughnessy or Dr. Lohrasbe, which indicates that Mr. Schoenborn did understand that his actions were wrong.

[36] The Crown and the accused have correctly argued that the issues in this case are:

1. whether Mr. Schoenborn was suffering from a mental disorder at the time he killed his children, and whether that was the primary motive for killing his children rather than some other motive. If Mr. Schoenborn has not proven on the balance of probabilities that he did suffer from such a mental disorder, then s. 16 of the Code does not apply;

2. if Mr. Schoenborn did in fact suffer from a mental disorder and it affected his behaviour as referred to in question 1 above, did it render him incapable of appreciating that his actions were wrong?

[37] During the evidence, one of the hypothesis discussed by the doctors in explaining Mr. Schoenborn’s behaviour was referred to as the altruistic hypothesis. This is the explanation Mr. Schoenborn gives that he believed the children were at risk of exposure to an involvement in a life of drugs, physical and sexual abuse and pornography. He concluded that he could not protect them from such a fate except by killing them. It should be understood, even if the children were in fact being abused as Mr. Schoenborn feared, that would be no justification at law for killing them. In other words, the question here is not whether Mr. Schoenborn’s fears were legitimate or honestly held. Even if Mr. Schoenborn honestly held these fears, beliefs and delusions, that in itself does not mean that s. 16 would apply. The mental disorder must be such that it prevented Mr. Schoenborn from appreciating that his actions were wrong in the sense that they were contrary to the ordinary moral standards of reasonable people.

[38] It is not a defence at law to kill your children, or anyone else for that matter, to save them from what you perceive to be a fate worse than death whether it is physical and sexual abuse, a life of drug addiction, or pain and suffering of a debilitating disease. The law does not recognize a “altruistic defence” to murder.

FACTUAL BACKGROUND

[39] Mr. Schoenborn is 41 years old. When he was 19 he lived in Camrose, Alberta. He had used LSD and marihuana as well as alcohol. He suffered a psychotic episode and was treated by a doctor and also voluntarily attended the hospital.

[40] He believed he was talking to Jesus and God. He thought his father’s girlfriend looked like a robot and he was afraid of her. He thought he saw her on TV and that she was speaking to him. He thought he was having LSD flashbacks.

[41] The medical records raise questions about the effects of drugs, although the last reported use of LSD was a year before. He is diagnosed as having a psychotic episode and schizophrenia is mentioned in the records, but would not be diagnosed based on one incident.

[42] Mr. Schoenborn appears to have had some problems with the law as a young man, but settled down after he became involved with Ms. Clarke who was his spouse up until April of 2008. I refer to her as his spouse for convenience only, although their relationship ended completely and finally when Mr. Schoenborn killed their children.

[43] The first five years of their relationship, from 1993 to approximately 1998, appear to have been happy and normal. Mr. Schoenborn worked hard as a roofing contractor and Ms. Clarke assumed the role of homemaker. They had three children.

[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. Schoenborn’s 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 child’s 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. Clarke’s 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. Schoenborn’s 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. Clarke’s assurances that she did not know what the brother-in-law was talking about.

[52] He states that he loves Ms. Clarke, but all of these thoughts or beliefs keep coming up in his head and that they have to be dealt with. He could not accept unanswered questions and “I don’t know” was too evasive.

[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 Max’s hair. He said that he thought Max’s 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 Max’s 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.

[56] Mr. Schoenborn’s conduct deteriorated again in 2007. He often berated Ms. Clarke about her infidelity and questioned her at length. On one occasion he said he hit the wall in order to try and get her to answer him. I am satisfied he was trying to intimidate her or scare her so that she would give him an answer that he could accept, rather than the one she was giving him. He did strike her on one occasion. He said he was trying to hit the wall but she moved her head.

[57] Mr. Schoenborn appears to have been very concerned about smells. Ms. Clarke confirms that. He would often try and smell her to determine whether she had been with somebody else. On one occasion, when they were engaged in foreplay, he believed he smelled the distinctive odour of a co-worker on her. He became angry, threatening and accusing. She denied any improper conduct, but he interpreted her lowering her head as a nod. He raised his fist and threatened to make her black and blue if she did not perform oral sex. In his interview with Dr. Lohrasbe, he agrees it was a terrible thing to do, but made the comment that it was to show his dominance, that he was in charge. It is clear Mr. Schoenborn has some significant problems.

[58] The following day he again got into an argument with Ms. Clarke. He was not getting the answers he wanted and he threw a ceramic object through a window to get her attention. He had been drinking heavily. Understandably, Ms. Clarke called the police and Mr. Schoenborn was charged with sexual assault. He was released on bail on the condition that he have no contact with Ms. Clarke when he had been drinking. He breached that condition and was charged.

[59] The Ministry of Children and Families (the “Ministry”) became involved because of the concern for the children. Mr. Schoenborn was upset and angry with their involvement. He believed they were harming his family and overstepping their boundaries. He believed it was simply an issue between him and Ms. Clarke.

[60] Ms. Clarke moved to Merritt, British Columbia to be closer to her mother. Mr. Schoenborn may have even suggested the move to Merritt and helped her. She and the children originally lived at her mother’s place and then moved into a motel. He visited her on a regular basis. Mr. Schoenborn believed that the motel was filled with drug users and insisted that Ms. Clarke move. She did find a rental home where she and the children lived until April of 2008.

[61] Mr. Schoenborn continued to work in the lower mainland, but travelled to Merritt to see the children and stay at Ms. Clarke’s residence. Ms. Clarke gave evidence about Mr. Schoenborn’s ongoing relationship with the children. In the circumstances, I found Ms. Clarke’s evidence to be remarkably balanced and fair. It is obvious that she has been traumatized by Mr. Schoenborn’s actions in killing the children, and that this has destroyed any relationship they ever had. However, that did not prevent her from giving her evidence in a straightforward and even manner. She agreed that Mr. Schoenborn had a close and loving relationship with the children. He played with them, helped them and spent as much time with them as he could. He was always concerned about their happiness and their well-being. She had never seen him do anything to directly harm the children in any way. She believed it was possible that he might harm her, but did not think that it was possible he would ever harm the children.

[62] Mr. Schoenborn’s mental health appears to have deteriorated from 2007 onward. He heard voices while living on Moss Street, but in November he again began hearing voices. He believed some form of transmitter had been placed in his teeth or his brain. The voices would make snide remarks. He also believed he heard Ms. Clarke talking to people in the washroom, but there was no one there when he checked. He thought someone was listening outside and he tried to catch them. He continued to believe that Ms. Clarke was unfaithful and they argued about it almost all the time. Often Ms. Clarke would be reduced to tears. It appears that Mr. Schoenborn had little insight into his behaviour. He says that he wished to believe Ms. Clarke’s denials, but things kept coming into his head.

[63] Mr. Schoenborn wrote a letter to the children’s school in approximately November of 2007. One of the children had received an award and Mr. Schoenborn’s letter was written to indicate how pleased he was. The letter, however, was strange in its wording, and the fact that it was written in orange crayon on a piece of paper torn from a book. It appeared to have been written by a child. It was odd enough that the school kept it on file, although it has now been misplaced.

[64] Mr. Schoenborn believed that his cell phone was bugged and he quit using it. He believed Ms. Clarke would three-way their telephone calls to her lover or someone else. He began to believe that she was somehow involved in the drug business or controlled by the drug lords.

[65] Mr. Schoenborn’s life continued to deteriorate. He was trying to work in the lower mainland but had nowhere to live. He travelled to Merritt in order to visit with the family. When in the lower mainland, he was living in his truck until he lost his license and could no longer use the truck. He was then sleeping in a tent in any place he could find while he was working. He would then make his way to Merritt in order to see the family. Eventually he was unable to work or contribute to his family. Ms. Clarke believed he had reduced his consumption of alcohol and marihuana around Christmas of 2007 or the New Year of 2008.

[66] His condition continued to deteriorate in the last few months before April of 2008. He continued to hear voices and be suspicious of Ms. Clarke. He was also concerned about his children. Ms. Clarke told him on at least one occasion that he should see a doctor, but he told her there was nothing wrong with him.

April 1, 2008

[67] Mr. Schoenborn attended the school and spoke to the school secretary, Carol Sundhur. She said he was anxious about the children. He appeared dishevelled, but generally fine. He waited for the teacher-in-charge, Jackie Hermann. He spoke to her for about 15 or 20 minutes and explained to her the problems in the family. He appeared ill at ease, anxious and nervous to her. Later that day he was arrested at the Ministry office on an outstanding warrant. A social worker talked to him while he was in custody. She did not notice anything that caused her concern about his mental state at that time.

April 2, 2008

[68] Mr. Schoenborn attended court in Kamloops on April 2, 2008, and was released on bail. He met with a bail supervisor. The bail supervisor did not detect anything that caused him concern about Mr. Schoenborn’s mental state.

[69] Mr. Schoenborn purchased a six-pack of beer and drank five of them. He went to the bus station to travel back to Merritt. On the bus, while it was loading, he believed another passenger looked at him and said “They’ll let anybody on the bus these days”. Mr. Schoenborn threw that person’s belongings off the seat and took the person’s seat. They became involved in a scuffle and Mr. Schoenborn was told to leave the bus. The driver said he looked like someone who was falling apart.

[70] Mr. Schoenborn then got into an argument with the dispatcher about his refund. Another driver had to intervene. After getting his refund, Mr. Schoenborn again confronted the dispatcher. The dispatcher thought Mr. Schoenborn might attack him. Then Mr. Schoenborn suddenly switched completely, became polite and left. The dispatcher thought he was on drugs, alcohol or something else.

[71] Mr. Schoenborn then purchased a bottle of wine and consumed that. He caught an early morning bus to Merritt, arriving about 2:30 – 3:00 a.m.

[72] Mr. Schoenborn knew he was not to be in the presence of Ms. Clarke if he was drinking. He went by the RCMP detachment, he said “To let them know that he knew they were watching him”. He was found in the parking lot and arrested for being drunk. He was released the next morning, April 3, 2008.

April 3, 2008

[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. 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. O’Flaherty. 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. Schoenborn’s conduct. When the police arrived, Mr. Schoenborn approached the police and appeared to be relaxed.

[85] Ms. Hermann said that on Thursday, Mr. Schoenborn appeared to be more agitated than he had been on Tuesday the 1st. He appeared more uncomfortable and kind of desperate.

[86] Constable McDiarmid arrested Mr. Schoenborn and charged him with uttering threats. During the booking-in procedure, Mr. Schoenborn attempted to run. However, he was in a secure area with no way out. The constable agreed this was not a rational thing to do. Mr. Schoenborn told the officer he was scared.

[87] Mr. Schoenborn had been allowed to speak to a lawyer on two occasions before the bail application conducted by telephone.

[88] The bail application took place between 4:20 and 5:00 p.m. approximately. The recording of that application was played and marked as an exhibit. Mr. Schoenborn appeared calm and rational for the most part. He said he understood the officer’s concerns and that he had overreacted, but he was having a hard time dealing with the separation of his family. He made no mention of any concerns about abuse of the children.

April 4, 2008

[89] Mr. Schoenborn dealt with a bail supervisor who described him as quiet and cooperative, but there was some uncertainty about his employment. Mr. Schoenborn spoke well of his mother-in-law who had assisted him and Ms. Clarke. The bail supervisor noted no cause for concern about his mental health. Mr. Schoenborn also spoke to another member of the Ministry staff on that date, and again, there were no immediate issues regarding his mental state. The Ministry staff believed he was not staying at the residence with the children.

Friday, April 4 and Saturday, April 5, 2008

[90] Mr. Schoenborn spoke with Ms. Clarke and spent time with the children on both days. She explained that she did not want to reconcile even if the Ministry removed the order. Mr. Schoenborn denied hearing her say that.

[91] Ms. Clarke described Mr. Schoenborn as depressed, but accepting, and respecting her decision. Ms. Clarke stayed at her mother’s residence for the weekend and Mr. Schoenborn stayed with the children. Mr. Schoenborn telephoned Ms. Clarke a number of times and they had some long telephone calls. There was no evidence of any anger expressed towards her. She said that he was concerned that she get enough sleep and enough to eat. She did say he appeared depressed.

[92] On Saturday, April 5, 2008, Mr. Schoenborn went to Ms. Clarke’s mother’s to see if she was alone, and also to allow her to have time with the children. Later that day, Mr. Schoenborn was upset because he believed Ms. Clarke was late in returning the children. It was apparent it was simply a misunderstanding between them as to when the children were to be returned, but Mr. Schoenborn read much more into it. Mr. Schoenborn telephoned Ms. Clarke at least twice on Saturday evening. There is no evidence of any anger or threats toward Ms. Clarke. Ms. Clarke saw nothing to indicate that Mr. Schoenborn was delusional or psychotic. Mr. Schoenborn had telephoned because Kaitlynne was on the telephone to a friend and he told her to get off the telephone. The friend called a short time later. Mr. Schoenborn intervened on that telephone call. He then called Ms. Clarke to ask her who was telephoning Kaitlynne. He said he acted as if she should know and she acted as if she did not.

[93] A neighbour of Ms. Clarke’s and the children, is a chaplain at Kamloops Regional Correctional Centre (“KRCC”). He spoke to Mr. Schoenborn over the fence on Saturday. Mr. Schoenborn asked about the prisoners, their age and why they were in there. He was told mostly for drugs. Mr. Schoenborn said that he does not “do that shit”. Mr. Schoenborn appeared to be sober and appropriate in his responses and looked fine.

MR. SCHOENBORN’S PERSPECTIVE AND HIS EVIDENCE

[94] Mr. Schoenborn’s evidence was that he attended at the school on April 3, 2008, because he was concerned that Ms. Clarke may have left with the children. He had to see that they were there. She had given him no reason to believe she would leave, but she did have a relative who had done something similar.

[95] Mr. Schoenborn said that later on that day he became frightened when he could not find Kaitlynne on the school grounds. He was concerned about her safety. He later returned to take it up with the principal. He said there were a number of things that were going through his head that did not make sense. He mentioned the possibility of her being groomed for prostitution and said “I would think that was what I was thinking at the time”.

[96] He confronted a little girl he believed was bullying Kaitlynne, and told her “If you come near my daughter I’ll come after you”. He said this was not a threat and that he was simply being audible. When he confronted the principal, he was demanding answers; again, he was being audible in order to be heard. He said he “growled” at her as well. He said he did not mean to scare her. He said he believed he was being overlooked by the principal and the RCMP. In his evidence he said that he told the principal “If you think I’m hot now, if I have to come back, just wait”. The principal did not confirm that he said these words. Mr. Schoenborn said it was not a threat. Anybody else would have taken it as a threat.

[97] The police arrived. He said he expected their help but instead was arrested. Earlier that week he had been arrested at the Ministry office. He said he began to think there was a conspiracy between the Ministry, the school and the police. He said he tried to escape in order to protect his children.

[98] He was released from custody on Friday morning, April 4, 2008. He said just after being released he heard two men talking on the street: one of them said “Don’t worry about Chico, I’ll kick the shit out of her”. His mother’s name is Chico. He said the timing was ominous or frightening. Shortly after, he heard two little boys: one saying “Allan, leave my pants alone”. He said one of the boy’s names was Allan and the other was pulling up his pants. He thought this was “pretty fantastic”. I take it he meant much more than a coincidence.

[99] He said a few weeks earlier a young boy had tried to sell Max a cell phone. He believed the cell phone was a gimmick or security item for someone who was conducting surveillance on him. He did not know who.

[100] On Saturday, he again asked Kaitlynne if she had been off the school grounds. He was not prepared to accept her denial. He became upset when Ms. Clarke was late returning the children.

[101] He said on Saturday he heard some fellow at a convenience store talking brash. He said it came across as if the person was saying he was having an affair with Ms. Clarke. Mr. Schoenborn said he gave the person a cuff and sent him on his way. Mr. Schoenborn has a tendency to self-aggrandizement.

[102] When Ms. Clarke returned with the children, she told him that the agreement was she would bring the children back in two hours, not one hour. Mr. Schoenborn thought they would be returned in one hour and was concerned when they were not. Mr. Schoenborn said he was worried about the children. Mr. Schoenborn said he believed Ms. Clarke was being pressed by low-lives to fill the kids with drugs and a life of prostitution. She seemed sincere, but said his thoughts were real. He denied Ms. Clarke told him that they would not get back together again even if the Ministry said it was alright.

[103] He and the children spent the afternoon flying kites. He described an incident in which Cordon was in a rage and stamping on some ants. Cordon could not explain why. Mr. Schoenborn was troubled by this incident and wondered what had affected Cordon.

[104] Mr. Schoenborn said that when he put the children to bed he could smell Max’s 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 Max’s mouth. He said that when Max died he heard the TV say “That’s 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. He said he included in this molestation or sexual abuse and meant degrading. He denied that he asked Mr. Robinson if Ms. Clarke had “offed herself”. He did ask RCMP Officer Smart in the ambulance if Ms. Clarke was still alive. He said it was such a horrible thing that it was understandable that she might have committed suicide and he was concerned about her.

[113] Mr. Schoenborn was frustrated and angry at the Ministry for the family’s separation. He believed they had overstepped their boundaries. He did not believe that he had ever been asked about his viewpoint.

[114] He again confirmed that he thought Ms. Clarke was being told what to do and how to act since he had known her. The people telling her this were drug dealers or “scum” as he called them.

[115] In cross-examination, he was asked how he made the connection between Kaitlynne being off the school grounds and being groomed for prostitution, and his answer was “How could you not make the connection?” He also said that he had not told the police officer about the concerns about prostitution because he had not yet made that connection. He said he did not know what he was putting together.

[116] Mr. Schoenborn said that after he smelled Max’s 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.

[118] Mr. Schoenborn said he wanted to explain to Ms. Clarke why he had done what he did. However, in his telephone call and letter to her from KRCC, he did not communicate that. He only expressed his motivation when she was speaking to him at KRCC in what he believed was a confidential situation.

[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 Kaitlynne’s 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.

THE MEDICAL EVIDENCE

Dr. O’Shaughnessy

[122] I have had the helpful evidence of Dr. O’Shaughnessy called on behalf of the accused and Dr. Lohrasbe called on behalf of the Crown. I have also had the evidence of Dr. Chale who attend on Mr. Schoenborn when he was at the Royal Inland Hospital (“RIH”) after his arrest and before his transfer to KRCC. These doctors are all experienced forensic psychiatrists and their qualifications were accepted without question. Dr. Chale’s evidence was limited to his observations of Mr. Schoenborn at RIH, where he interviewed him for approximately half an hour to one hour. He also provided some opinion evidence in cross-examination about some of Mr. Schoenborn’s behaviour before he killed his children.

[123] Dr. O’Shaughnessy interviewed Mr. Schoenborn April 24, 2008 and again on June 23, 2009. Dr. Lohrasbe was not given an opportunity to interview Mr. Schoenborn until August 28, 2009, and again on September 4, 2009. Dr. Lohrasbe agrees that it would have been more helpful had he been able to examine Mr. Schoenborn as soon after the events as possible.

[124] Both Dr. O’Shaughnessy and Dr. Lohrasbe gave evidence that the human memory is not fixed, but can change over time without a deliberate intention to mislead. They both referred to the natural human tendency of reconstructing memories, usually in a way that is more favourable to the person remembering. Dr. Lohrasbe made it clear that he was not suggesting that Mr. Schoenborn was malingering or pretending to be mentally ill when he was not. Dr. Lohrasbe’s opinion is that given Mr. Schoenborn’s present mental state, he would simply be incapable of carrying on a sustained act. Dr. O’Shaughnessy and Dr. Lohrasbe both agree that at present Mr. Schoenborn suffers from a major mental disorder; probably a delusional disorder with some symptoms of schizophrenia. Both Dr. O’Shaughnessy and Dr. Lohrasbe agree that a person suffering from a major psychotic disorder such as delusional disorder may show fluctuations in the symptoms of their mental state. Dr. Lohrasbe noted that, based on the records he had reviewed, Mr. Schoenborn shows marked fluctuations in his mental state.

[125] Dr. O’Shaughnessy’s opinion was that the increased auditory hallucinations, the hearing of voices, showed deterioration in Mr. Schoenborn’s mental state. The evidence of the disjointed call he had with the dispatcher when he called from the school is typical of thought disorder. This shows a loosening of associations. Dr. O’Shaughnessy said that it is possible that it could simply be the result of a person being very angry. He said it lasted for a brief time so he did not place a lot of weight on it in forming his opinion. Dr. Lohrasbe initially disagreed that this was a sign of “word salad,” a term used to describe certain symptoms of schizophrenia. However, he did agree that it was almost a caricature of psychosis and that he was probably in a psychotic state at the time of the call.

[126] Dr. O’Shaughnessy and Dr. Lohrasbe both agree that the episode in Alberta in 1987 was an episode in which Mr. Schoenborn was clearly in a psychotic state.

[127] Dr. O’Shaughnessy’s opinion is that in 1999, when Mr. Schoenborn was admitted to the Royal Columbian Hospital, that he was again in a psychotic state and this is evidence of an ongoing delusional disorder. These ongoing delusions, which may have fluctuated from time to time, include that his wife was having an affair and that his children were being sexually abused or potentially exposed to drugs. In addition, he continued to have ongoing “olfactory” delusions as related to the smells that he reported and believed related to semen or the smell of another person on Ms. Clarke. He described these as fixed delusions that waxed and waned.

[128] Dr. O’Shaughnessy did not simply accept everything that Mr. Schoenborn told him and was alert to the fact that there is a danger of rationalization.

[129] Dr. O’Shaughnessy said that a delusional disorder is typified by a fixed, firm, false belief that defies any kind of challenge or logic. Auditory hallucinations fit more with schizophrenia. He noted that the “olfactory” hallucinations led to “crazy beliefs of his wife’s infidelity and of abuse of the children,” not that his wife was abusing the children necessarily. These are conclusions that no rational person would reach based on that evidence. He gave the opinion this was some evidence of disturbance of his thought processes.

[130] A person with a delusional disorder may otherwise function normally. Sometimes if it is a persecutory or a jealous-type of disorder it may begin to affect their behaviour. Generally, auditory hallucinations are not part of delusional disorders, although a delusional person may hallucinate. A person with schizophrenia typically displays more disturbed behaviour in other areas of their life. This includes thought disorders, illogical conversations and auditory hallucinations.

[131] Dr. O’Shaughnessy’s opinion was that when Mr. Schoenborn was confronting the principal and the student at the school he was not in his right mind. He believes he was suffering from a major mental disorder at the time. Originally, Dr. Lohrasbe was not sure, but subsequently, in cross-examination, agreed that he was probably in a psychotic state.

[132] Dr. O’Shaughnessy referred to an article in the Journal of the American Academy of Psychiatry and the Law, Vol. 23, No. 4, 2005 at 496. This was an article entitled “Filicide-Suicide – Focal and Common Factors in Parents Who Kill Their Children and Themselves”. This article identified a number of motives for people killing their children, including:

1. Altruistic – being the desire to alleviate real or imagine suffering in the children. This was subdivided into psychotic altruistic or non-psychotic altruistic;

2. Acutely psychotic;

3. Accidental filicide – fatal maltreatment;

4. Unwanted child; and

5. Spouse revenge filicide.

[133] Dr. O’Shaughnessy referred to various characteristics of people who fit within the altruistic psychotic motivation, but I agree with Dr. Lohrasbe that the study is not particularly useful from a diagnostic point of view. The study does not purport to be a diagnostic tool. The authors specifically state:

Data presented cannot be considered a “profile” of parents who commit filicide-suicide. Often parents seen in psychiatric practice have multiple similarities to this sample and do not harm their children. [p. 503]

[134] The Crown’s principal theory is that Mr. Schoenborn killed his children in retaliation against his wife because of their separation. Dr. O’Shaughnessy said that he challenged Mr. Schoenborn in his interview to determine whether that might have been one of his motives. Based on the cross-examination, the challenge does not appear to have been very extensive. Dr. O’Shaughnessy, however, was of the opinion that the evidence does not support the hypothesis that he was motivated by anger at his wife. Dr. Lohrasbe, however, said that was a possibility he was not able to discount.

[135] Dr. O’Shaughnessy was of the opinion that Mr. Schoenborn’s psychosis produced the motivation to kill his children. This psychosis resulted in a distortion of his thinking and was a product of his delusional thought process. He 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. O’Shaughnessy was of the opinion that Mr. Schoenborn was not capable of understanding that what he was doing was wrong because of his mental illness. He thought he was doing what was morally correct.

[136] Some of Mr. Schoenborn’s behaviour is typical of a person with a major personality disorder, including paranoia. However, Dr. O’Shaughnessy would not diagnose such a disorder because it appeared Mr. Schoenborn was able to work and participate in a happy marriage, at least until the psychotic break and the events leading up to 1999, when he was hospitalized.

[137] Dr. O’Shaughnessy was of the opinion that after Mr. Schoenborn killed his children he indeed sought to kill himself. However, Mr. Schoenborn then became ambivalent about wishing to die and subsequently changed his mind. The pathologist, Dr. Stefanelli, and Dr. Lohrasbe were of the opinion this was a genuine suicide attempt.

[138] In cross-examination, Dr. O’Shaughnessy agreed that a number of the incidents that Mr. Schoenborn reported that indicate delusional behaviour were not reported in his first interview; these include:

· the references to “Allan, leave my pants alone;”

· the attempts of a child to sell a cell phone to one of his children that was mentioned in the second interview, but not the first;

· the reference to somebody at the convenience store speaking about having some improper relations with his wife that was not mentioned in either interview;

· the smell of Max’s hair was not mentioned until the second interview;

· the suggestion that Ms. Clarke may have been controlled by bad people was not mentioned until the second interview; and

· the fact that the telephones might be monitored was not mentioned until the second interview.

[139] Dr. O’Shaughnessy was not concerned with that or with the fact that there may have been some things mentioned to Dr. Lohrasbe that were not mentioned to him. He believed that it is typical for a person recalling such events to have additional recall as matters proceed.

[140] Dr. O’Shaughnessy said that the evidence about Mr. Schoenborn’s extreme jealousy of Ms. Clarke went well beyond what would normally be expected in a rational person. His conclusion was that this went to the point of being delusional. Dr. Chale, in cross-examination, agreed.

[141] Dr. O’Shaughnessy did confirm that Mr. Schoenborn knew that killing the children was illegal and punishable as a crime, and that Ms. Clarke would certainly be disturbed by it.

[142] Dr. O’Shaughnessy also noted that in his interviews Mr. Schoenborn played down symptoms of mental illness; for instance, he did not mention he believed the telephones were bugged, although Ms. Clarke gave that evidence. He did not relate any auditory hallucinations and, in fact, denied any paranoid delusions, although Ms. Clarke, in her evidence, confirms that Mr. Schoenborn was subject to such hallucinations.

[143] The evidence that leads Dr. O’Shaughnessy to believe that Mr. Schoenborn suffers from a major mental disorder, and did so when he killed the children, include the following:

· his delusional paranoid history;

· psychotic beliefs that Kaitlynne had been abused in the 1999 episode;

· his intermittent delusions;

· deterioration of his mental state leading up to the killing of the children;

· his overreactions to situations and the intensity of his reactions;

· olfactory hallucinations;

· his beliefs that the telephones were being tapped;

· the conversations in his head;

· the events that occurred at the school;

· his irrational beliefs that the children were being sexually abused; and

· his statements that he believed the only way to save the children was to kill them.

Dr. Lohrasbe

[144] Dr. Lohrasbe gave his evidence over five days. His interviews of Mr. Schoenborn occurred on two separate days and totalled approximately six hours. Like Dr. O’Shaughnessy, he also had access to a large number of documents and parts of the trial, including Mr. Schoenborn’s testimony. He was also present when Dr. O’Shaughnessy gave his evidence. Dr. Lohrasbe said it was difficult to be confident in his opinion because of the quality of the evidence he had to work with. He pointed out there were only two prior psychotic episodes that were documented, in 1987 and 1999. He thought this was a limited history of medical problems given Mr. Schoenborn’s age. He also said the documentation was not in depth and it was unclear what role substance abuse might have played in those episodes. He said that the evidence of Mr. Schoenborn’s mental state at the time he killed his children comes almost entirely from Mr. Schoenborn and things that he said after-the-fact. Dr. Lohrasbe said he was simply unable to conclude what facts he should find in order to give a definitive opinion.

[145] Dr. Lohrasbe was confident, however, in his diagnosis that Mr. Schoenborn is presently suffering from a severe mental disorder. Some of the symptoms included:

· intermittent eye contact and a wild look in his eye;

· eruptive emotions and his mood did not match the words;

· abrupt changes and an explosive anger out of context;

· difficulty holding things together with thought disorders;

· he believed that Mr. Schoenborn was trying to cooperate;

· the history of substance abuse because that can contribute to paranoia;

· he was not abusive to the children, but had been abusive to Ms. Clarke;

· auditory hallucinations;

· belief that a transmitter had been implanted by doctors;

· ideas of reference that songs or comments on a television might be relating to him, or speaking to him; and

· Mr. Schoenborn referred to instances of a child trying to sell a cell phone to one of his children, the “Allan, leave my pants alone” incident and the reference to Chico.

[146] Mr. Schoenborn gave confusing information to Dr. Lohrasbe about what had precipitated the killing of the children. It was not clear to Dr. Lohrasbe whether it was the smell on Max’s hair or that Ms. Clarke was not coming home. He also told Dr. Lohrasbe that he believed the children were being abused, would continue to be abused and that there was nothing he could do about it. He was asked whether he had ever thought of killing Ms. Clarke and his response was “The kids are mine to take. Darcey is not mine to take”.

[147] Mr. Schoenborn also expressed anger towards Ms. Clarke and referred to the incidents on Moss Street when he would run out to tell somebody who was revving their engines to stop, and Ms. Clarke would be the first person to tell him that he should stop doing that.

[148] One of the expressions of anger that Dr. Lohrasbe noted was when he asked Mr. Schoenborn what was the logical point leading to the death of the children, and Mr. Schoenborn responded in an angry tone “The fucking day I met her.”

[149] During the second interview, Mr. Schoenborn spoke of an incident at a Vernon toy store. He believed that the children had black around their eyes and thought that it might be relating to drugs. He wanted to have the children checked by a doctor. He said it took Ms. Clarke six months to get the blood work done. Dr. Lohrasbe remembered that Mr. Schoenborn’s tone was very angry when he said this. However, when an audio recording of that portion of the interview was played there is no indication of anger. Dr. Lohrasbe thought that perhaps there was something about Mr. Schoenborn’s eyes that indicated anger, or he might have been thinking about some other incident. There is clear evidence from Mr. Schoenborn and Ms. Clarke that Mr. Schoenborn had been angry at Ms. Clarke on a number of occasions. I am satisfied that Dr. Lohrasbe is merely confused about the particular incident that caused him to conclude Mr. Schoenborn is an angry person. Dr. Lohrasbe said Mr. Schoenborn had broad-based anger but did not appear vengeful.

[150] Dr. Lohrasbe confirms that Mr. Schoenborn was not making logical connections between things, but the central themes for him were drugs and abuse of the children. He was also having difficulty with the fact the family was splitting up. He did tell Dr. Lohrasbe that he admired Ms. Clarke for putting her foot down at the end, although he was depressed about their separation.

[151] Dr. Lohrasbe was concerned that in the first interview Mr. Schoenborn spoke about having an apparition and described it as something like an intuition with everything coming together. On the second interview, after he had been told that an apparition is usually a visual image, he told Dr. Lohrasbe that he did have a visual image of Ms. Clarke’s unknown lover putting semen on Max’s head and he had this image when he smelled Max’s hair. He said this pulled everything together and confirmed his belief the children were being abused.

[152] Mr. Schoenborn did explain to Dr. Lohrasbe that he debated the right and wrong of things and what was right for the children and questioned his own beliefs. Ultimately, he decided that his beliefs were accurate and that the children were in fact being abused. He still believed that to be the case, but hoped that he was wrong and he hoped that he was wrong about whether Ms. Clarke was being unfaithful.

[153] During the second interview, he mentioned hearing the television say “That’s the last of the white ones” after Max was killed. He did not mention this in the first interview and it is something that Dr. Lohrasbe would have expected him to remember.

[154] Mr. Schoenborn denied to Dr. Lohrasbe that he was a “loner,” but said he was a “pretty personable, happy guy.” It is certainly not the way anybody would describe him who has met him at this time, nor does it seem consistent with the rest of the evidence. This shows a complete lack of insight on Mr. Schoenborn’s part.

[155] Dr. Lohrasbe said he could not make a clear connection between Mr. Schoenborn’s mental disorder and his actions when he killed his children. He said this depended on the reliability of Mr. Schoenborn’s evidence and that he was not sure how reliable that evidence was. He was concerned about memory reconstruction not fabrication for the purposes of deceiving. He was not sure how the events since the killing may have affected Mr. Schoenborn’s mental state, including the long period of protective custody since his arrest, the knowledge that he did in fact kill his children and the knowledge that as a result he is a pariah.

[156] Dr. Lohrasbe was satisfied that Mr. Schoenborn had prior psychotic episodes, but was uncertain about what role substance abuse might have played in those episodes. There was reference in the documents to alcohol or drugs, but it was not clear what role they might have played because the evidence was not clear. He said the fact that Dr. Chale did not notice any psychotic symptoms when he spoke to Mr. Schoenborn in the hospital also adds to the confusion.

[157] Dr. Lohrasbe did review the Ministry’s records and noted references to substance abuse, as well as mental health issues. There is also reference to anger that Mr. Schoenborn felt towards the Ministry. He did note one statement made by Mr. Schoenborn and referred to in the records that “If Darcy was done with the relationship then he would simply wait until she was done being done.” He took that to mean that they had always reconciled.

[158] In chief, Dr. Lohrasbe said that the episodes at the school were not clear evidence of a mental disorder, but subsequently, in cross-examination, he agreed they were.

[159] His diagnostic conclusions were that this was a challenging diagnosis due to:

1. evidence of substance abuse;

2. Mr. Schoenborn was not a cooperative patient during past psychotic episodes and there is contradictory information in the assessments;

3. the two prior incidents were more than a decade apart;

4. fluctuations in his mental state make it difficult to come to hard conclusions.

[160] Dr. Lohrasbe said there is no doubt that Mr. Schoenborn was psychotic from time to time, had problems with substance abuse and had personality traits, including anger. He had broad-based anger at Ms. Clarke, the police, the Ministry and health care professionals.

[161] There was limited evidence of his childhood and adult history and, therefore, it is not possible to diagnose a personality disorder, but there were indications of paranoid personality disorder. He agrees with Dr. O’Shaughnessy that there are reasons to consider schizophrenia and reasons to consider delusional disorder.

[162] Dr. Lohrasbe said there were two alternate hypothesis; the altruistic or the retaliatory hypothesis. In support of the retaliatory hypothesis was the timing of events after Ms. Clarke had finally put her foot down, Mr. Schoenborn’s preoccupation with her infidelity and her denial of that leading to anger and the fear that she may be taking the children and leaving with someone else.

[163] Dr. Lohrasbe had doubts about the altruistic motive because Mr. Schoenborn did not express fears about the children being sexually abused shortly before he killed them. This included events at the school, when he was talking to the police, during his bail application and after when he was speaking on the telephone or writing a letter to Ms. Clarke from KRCC. Dr. Lohrasbe said a person in the midst of a psychosis loses the ability or the awareness of appropriateness and the basis of their fears tend to emerge under periods of stress.

[164] Cross-examination was extensive. Dr. Lohrasbe agreed that a person may have multiple motivations for doing something, and it was his evidence that people with severe psychosis also have all the same range of motives and emotions that other people do. Therefore, a person who is psychotic may act out of anger rather than as a result of their psychosis. He did agree that Dr. O’Shaughnessy’s opinions were certainly reasonable. He confirmed that both he and Dr. O’Shaughnessy agree 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.

[165] Dr. Lohrasbe agreed that Dr. O’Shaughnessy was in a better position to assess Mr. Schoenborn’s mental state at the time of the killing because he was able to interview him closer to the events. He agreed that it was not uncommon for a person’s mental state to fluctuate, but that this fluctuation was quite marked in Mr. Schoenborn.

[166] Dr. Lohrasbe confirmed that there were two significant differences between the interviews that troubled him: the first, the reference to the apparition which was more specific and visual in the second interview and was more like an intuition in the first; and the auditory hallucination referred to in the second interview “That’s the last of the white ones.” Both of these things are symptomatic of psychosis.

[167] Dr. Lohrasbe agreed that some of the things that support the conclusion that Mr. Schoenborn was psychotic at the time he killed his children and support Mr. Schoenborn’s evidence of what motivated him are:

· the psychotic episode at the Camrose hospital in 1987;

· the incident in 1999 leading to his hospitalization at the Royal Columbian Hospital and the evidence of Ms. Clarke surrounding that;

· the Orajel incident confirmed by Ms. Clarke;

· the episode involving the smell of the co-worker, Sam, confirmed by Ms. Clarke;

· the incident at the Greyhound bus, including the dispute with the bus driver and the dispatcher;

· the fact he believed cell phones were bugged, confirmed by Ms. Clarke;

· his belief that Ms. Clarke arranged for others to listen to his telephone calls, and Ms. Clarke confirmed he held that belief;

· hearing of voices and a belief that a transmitter had been planted in his head; confirmed by Ms. Clarke;

· him running to the windows to try and catch people listening to him; this was confirmed by Ms. Clarke;

· his concern about the children being at school and his unwillingness to accept reassurances they were; this was confirmed by the school staff;

· the fact that he was paranoid and his continued belief that the children were not doing well in school;

· the episode in the school yard confirmed by the teachers and staff;

· his telephone call to the police detachment confirmed by the telecommunications operator and RCMP Officer McDiarmid;

· his attempts to escape from the holding area in the RCMP detachment;

· his calls to Ms. Clarke on Saturday, April 5, 2009, when he demanded to know who had been calling Kaitlynne and expected her to know;

· the physical evidence that supports his attempted suicide, including the razor blades, the injuries to his arms and the power cord in the bathroom that was not normally left in that bathroom.

[168] Dr. Lohrasbe, however, was concerned that there was no note left that detailed Mr. Schoenborn’s preoccupations or reasons for killing the children.

[169] The symptoms of psychosis shown by Mr. Schoenborn that Dr. Lohrasbe agreed with included:

· delusions;

· hallucinations;

· thought disorder;

· drifting off in irrational preoccupation and thoughts;

· his thoughts were jumping around and disjointed;

· disjointed conversations;

· disorganized speech; and

· labile mood.

[170] Dr. Lohrasbe agreed that there were symptoms of delusional thinking in the 1987 episode and the 1999 episode. There seemed to be a consistent theme of drugs and abuse of the children starting from 1999 through to the time the children were killed. Expressions of concern about sexual abuse were referred to in 1999, but not again until after the children were killed.

[171] Dr. Lohrasbe said he had some concerns because a person who is truly delusional believes their delusions and their behaviour changes because of that. He was concerned that if Mr. Schoenborn was truly delusional about Ms. Clarke’s behaviour, including her unfaithfulness and abuse of the children, he would have acted on that. Dr. O’Shaughnessy explained, however, that the delusions could wax and wane; that may be some explanation.

[172] Dr. Lohrasbe agreed that paranoid mentally ill people may try to mask or hide their symptoms, and it is conceivable that Mr. Schoenborn did not disclose some of his concerns because he was afraid of being thought to be mentally ill. Dr. Lohrasbe agreed that because a person suffers from a major mental disorder does not mean that their symptoms are always manifest, and that they may appear crazy at one moment and relatively normal at another time. He agreed it was a fluctuating process. Often there is a gradual accumulation of real life consequences due to their behaviour and this can lead to a further dysfunction and a downward spiral.

[173] Dr. Lohrasbe agreed that there was evidence of deterioration in Mr. Schoenborn’s mental state, including increases in his suspicions about Ms. Clarke and whether other people were listening in, or whether she was speaking to other people in the home. Dr. Lohrasbe confirmed it is possible that Mr. Schoenborn’s paranoia at some point jelled into delusions.

[174] Dr. Lohrasbe did agree that the day Mr. Schoenborn attended at the school he was demonstrating severe mental problems, and in the context of what we know now, that his behaviour was clearly psychotic. He also agreed that Mr. Schoenborn was mentally disordered on the day he killed the children, but may have been motivated by other reasons than his delusions or psychosis.

[175] In cross-examination, he agreed that the altruistic hypothesis that depended on Mr. Schoenborn’s reports about fear for his children had objective support; that is, other than Mr. Schoenborn, as follows:

· the 1999 incident and reported fear of drugs and sex abuse;

· pre-occupation with semen. This was entrenched pre-occupation;

· the Orajel incident was consistent with concerns about drugs;

· the episode at the school on April 3, 2009, and his concerns about Kaitlynne being off the school grounds and the telephone call to the police and discussions with the principal;

· previous smell of foul odour on Max’s head confirmed by Ms. Clarke;

· the intermittent psychosis supports the theory that it may have jelled or come together on the night he killed the children;

· the three odd episodes: the cell phone which he discussed with the principal; the Chico incident; the “Allan, leave my pants alone” incident. These would be incidents of paranoid a break with reality;

· the attempted suicide that does support the altruistic hypothesis, if it was for the purpose of being with his children, although it could also be explained by the retaliatory hypothesis;

· the history of non-violence to the children and the loving relationship he appeared to have with the children;

· his statements to Mr. Robinson as told to Constable Smart, the first officer on the scene, that he put the children in a better place;

· similar statements to Dr. Chale and Dr. O’Shaughnessy.

[176] All of these statements must be considered in light of the possibility of memory reconstruction.

[177] Dr. Lohrasbe was also concerned that there was some evidence of possible angry reaction because of the break-up of the family and the unfair situation Mr. Schoenborn may have felt himself to be in. However, Dr. Lohrasbe did not get the impression that Mr. Schoenborn was a vengeful person although he did appear to be very angry. He also confirmed Mr. Schoenborn expressed admiration of Ms. Clarke for putting her foot down, but also anger towards her. Dr. Lohrasbe confirmed that it is unusual for somebody to direct their anger at their spouse to cause harm to their children.

[178] Dr. Lohrasbe also confirmed that if a person is not sleeping well that may be evidence of mental disorder, and there was evidence that Mr. Schoenborn was not sleeping well leading up to these events.

[179] Dr. Lohrasbe mentioned that it was odd that Mr. Schoenborn told the ambulance driver that he had been diagnosed with schizophrenia. However, he did not suggest that Mr. Schoenborn was fabricating any kind of a defence; it simply struck him as odd in the way in which it arose. However, the evidence of the ambulance driver was that initially Mr. Schoenborn was non-responsive when asked about his medical history and it was only after being questioned further that he made the reference to schizophrenia.

[180] Dr. Lohrasbe was concerned about the fact that more detail came out over time. He did not suggest Mr. Schoenborn was fabricating, but thought there was simply the possibility of memory reconstruction. Dr. Lohrasbe, however, did agree in cross-examination that in an earlier case which he had given expert evidence, he indicated that sort of thing did not concern him because it is normal for people to come up with more and more details. Dr. Lohrasbe though did point out in the earlier case there was no evidence or any alternate explanation for the actions other than mental illness.

[181] Dr. Lohrasbe did confirm that psychosis is not continuous and it would be unusual for a psychotic to commit an act of violence in the midst of his psychosis to hold the same interpretation of what he did on a continuous basis. In other words, that it was not wrong. From this I take it to mean that the person may begin to have doubts about whether they did the right thing.

[182] He also agreed that a person who was mentally ill may flip in and out of their psychosis very rapidly; sometimes within minutes. He also agreed it was inappropriate to apply concepts of rational thought to persons fluctuating between the real world and their alternate reality as a result of their psychosis.

Dr. Chale

[183] Dr. Chale, in his evidence, agreed that the fact that Mr. Schoenborn did not show signs of psychosis on April 25, when he interviewed Mr. Schoenborn, does not mean that he was not psychotic when he killed his children.

[184] Dr. Chale said that the events in 1999, the Orajel event, the fears of sexual abuse of Kaitlynne expressed in 1999, the long history of extreme suspicion of Ms. Clarke and the reference to the smell of Sam, were more consistent with delusional disorder of paranoid-type than ordinary jealousy.

Defence counsel put to Dr. Chale, Ms. Clarke’s evidence about Mr. Schoeborn’s paranoid behaviour, hearing voices, believing a transmitter was in his head, that someone was outside the trailer listening, his suspicions that his cell phone was bugged and that his wife may be three-waying in the calls. He said this was clear evidence of psychotic illness, delusional beliefs and hallucinations. He said this suggested a major mental illness.

THE CROWN’S POSITION

[185] In this review of the Crown’s position I am not repeating everything that the Crown has said. In summarizing the Crown’s position, I do not mean to take anything away from the very complete and thorough analysis that the Crown reduced to writing and provided to me.

[186] The Crown agrees Mr. Schoenborn was suffering a major mental illness in the past in 1987 and 1999. The Crown also agrees that he is now suffering a major mental illness.

[187] However, the Crown argues that Mr. Schoenborn has not proven that he was suffering from a major mental illness when he killed his children or, if he was, that it was the primary motive for killing his children. The Crown argues that the alternative motives, including retaliation against Ms. Clarke or a general reaction to a loss of control of his life, were more likely the cause of his actions.

[188] The Crown argues that even if Mr. Schoenborn was suffering from a major mental disorder, which was the primary motive for killing his children, he has still failed to prove that he did not know that doing so was wrong in all the circumstances.

[189] The Crown argues that the defence relies on Mr. Schoenborn’s own evidence of what was going on in his mind when he killed his children. The Crown argues that his evidence is unreliable, inconsistent and a product of reconstruction.

[190] The Crown points to the fact that Ms. Clarke saw no signs of mental disorder on April 4th or 5th, when she dealt with Mr. Schoenborn. The Crown points out that other people did not notice anything that caused them concerns about his mental condition, including:

· the bail supervisors he dealt with on April 2 and 4, 2009;

· the social workers he dealt with on April 3 and 4, 2009; and

· the neighbour that he dealt with on April 5, 2009.

[191] The Crown also points out that the transcript of the bail application on April 3, 2009, shows that he was rational at that time.

[192] The Crown argues that the incidents on the bus and at the school grounds on April 3, 2009, are as consistent with problems of alcohol as they are with psychosis.

[193] The Crown argues that there is no support for Mr. Schoenborn’s evidence of what was going on in his mind at the time or that he was psychotic at the time he killed his children. The Crown says that his present evidence, if not intentionally misleading, is really the product of a reconstruction of memory and a need to explain his actions to himself and others. The Crown says that his evidence, that he saw his daughter in some form of a vision while he was on the prison ground and that she forgave him, is an example of such reconstruction. The first time he mentioned such an incident was when he gave his evidence in court.

[194] The Crown points out that when he was confronted by Mr. Robinson, Mr. Schoenborn only said that he was trying to save his children from a life of “humility,” but meaning humiliation. There was no specific mention of sexual abuse. The Crown points out that when he spoke to Dr. O’Shaughnessy on April 24, 2009, that his fears about the children were primarily about Kaitlynne and sex abuse, but not sexual abuse of the other children. The Crown points out that a number of the details Mr. Schoenborn refers to were not disclosed until his second interview with Dr. O’Shaughnessy or his later interviews with Dr. Lohrasbe. Included in the matters Mr. Schoenborn says are important are:

· the smell on Max’s head;

· the fact the children were two hours late from the park;

· the reference to Chico;

· the reference to “Allan, leave my pants alone”;

· cell phones being sold by a young child;

· two telephone calls to Kaitlynne on Saturday night;

· the TV spoke to him; and

· his reference to an apparition.

[195] The Crown argues that these matters were not referred to earlier because they were not part of his thinking at the time, but are simply the product of reconstruction.

[196] The Crown also points out that Mr. Schoenborn did not mention some of the specific concerns, especially about the children being sexually abused in the days or weeks before the children were killed. The Crown argues that Mr. Schoenborn is a man who was determined to be heard and it is difficult to accept that he would have failed to mention these concerns especially if he was psychotic.

[197] The Crown also argues that those things pointed to as confirmation that Mr. Schoenborn was in fact in a psychotic state are only confirmation if you accept his explanation.

[198] This reasoning is somewhat circular. If you accept Mr. Schoenborn’s explanation you do not need any support for it. However, in trying to determine whether any weight should be given to Mr. Schoenborn’s explanation, it is reasonable to look at things which are consistent or inconsistent with his explanation. All of the psychiatrists agree that in trying to determine a person’s mental state at a particular time, it is reasonable to consider the circumstances before and after that time. Dr. O’Shaughnessy and Dr. Lohrasbe both agree that it would not be appropriate to simply accept what they are told by a patient without considering other circumstances that support or contradict that evidence.

[199] The Crown argues that even if Mr. Schoenborn had these beliefs or fears for the children that he did not kill the children as a result of these fears or to protect them. Again, the Crown points to the fact that these fears were not mentioned earlier and Mr. Schoenborn is a man who insists on being heard. They point out that Mr. Schoenborn did not ask the children about these fears.

[200] The Crown says that there are alternate motives, such as anger at Ms. Clarke, or a loss of control of his life and perhaps a loss of his family.

[201] The evidence of anger and jealousy at Ms. Clarke comes from the evidence of Ms. Clarke and from Mr. Schoenborn. Ms. Clarke said she thought it was possible he may harm her at some time. Mr. Schoenborn also expressed fear that she may flee with the children and that is why he attended at the school to check on them. The Crown also points out that when being interviewed by Dr. Lohrasbe, Mr. Schoenborn was asked what the starting point was that led to the killing of the children. Mr. Schoenborn’s answer was “The day I fucking met her.” Mr. Schoenborn also had general anger at the Ministry. The Crown says that the incident at the bus depot could well be simply a result of alcohol, as could be the incident at the school on April 3, 2009.

[202] The Crown points out that essentially Mr. Schoenborn’s life was falling apart. He had no job, no income or means to support the family, he had no place to live, no driver’s license and Ms. Clarke had said that she was not prepared to be with him and the children at the same time. The Crown points out that it was shortly after Ms. Clarke tells Mr. Schoenborn she will not come back to the trailer that night that the children are killed. The Crown argues that Mr. Schoenborn then “staged the scene,” and that he knew what Ms. Clarke would find when she came to the trailer the day after the children were killed.

[203] The Crown also points out that when Dr. Lohrasbe asked Mr. Schoenborn if he had thought of harming Ms. Clarke, his response was “The children were mine to take.” Ms. Clarke was not his to take.

[204] The Crown also argues that even if Mr. Schoenborn were motivated by his psychosis and delusions that he still knew what he was doing was wrong. The Crown says that his attempts at suicide were equivocal. The Crown says that he fled the scene in order to avoid apprehension and did so by hiding for ten days. The Crown points to his comment that he was afraid Ms. Clarke would call the police. I note that after reviewing the evidence it appears this was in response to interfering with him attempting suicide. The Crown points to the fact that Mr. Schoenborn lied about his identity to Mr. Robinson, and to his need for forgiveness.

[205] The Crown says that Mr. Schoenborn knew that it was against the law to kill his children. He admitted that in cross-examination.

[206] The Crown also argued that Dr. O’Shaughnessy said that Mr. Schoenborn knew that everyone who knew of the act would be horrified by it. I have reviewed that portion of Dr. O’Shaughnessy’s evidence and it appears that he was referring to Mr. Schoenborn’s knowledge while he was in prison, and not at the time of the killings.

[207] The Crown argues that Dr. O’Shaughnessy’s evidence should be given little weight. They argue that he failed to acknowledge the involvement of drugs and alcohol and the earlier incidents when Mr. Schoenborn had psychotic episodes. They argue that Dr. O’Shaughnessy was too ready to ignore the inconsistencies in Mr. Schoenborn’s evidence over time and the fact that details kept being added. The Crown also argues that Dr. O’Shaughnessy’s reliance or reference to the article on filicide affects the weight that can be given to his opinion.

[208] In contrast, the Crown says that Dr. Lohrasbe’s evidence was much more balanced and thoughtful. Dr. Lohrasbe was aware of the dangers of relying on Mr. Schoenborn’s evidence. They argue Dr. Lohrasbe recognized those things that were inconsistent with an opinion that Mr. Schoenborn acted as a result of a psychosis and the evidence that raised doubts about whether or not he in fact was acting out of anger towards Ms. Clarke.

THE DEFENCE ARGUMENT

[209] I am summarizing the defence argument, and again, as I said in reference to the Crown argument, I do not mean to take anything away from a very careful and detailed written argument prepared by counsel.

[210] The defence points out that Dr. O’Shaughnessy’s evidence is clear that in his opinion s. 16 applies and Mr. Schoenborn meets the test of not criminally responsible due to disease of the mind. Dr. Lohrasbe is not confident in his diagnosis, but agrees that Dr. O’Shaughnessy’s diagnosis and opinion is entirely reasonable. Dr. Lohrasbe simply says that he is unable to be sure of his diagnosis and whether Mr. Schoenborn was motivated by his psychosis and delusions or anger at Ms. Clarke.

[211] The defence agrees that the issue is whether Mr. Schoenborn was psychotic when he killed his children and that his actions were motivated by his psychosis and delusions. The defence agrees that Mr. Schoenborn’s evidence about his state of mind is crucial, and the question is whether or not it is believable.

[212] The defence argues that the cumulative effect of the evidence supporting psychosis as the motive outweighs any evidence that supports any other hypothesis.

[213] The defence says the following evidence supports the hypothesis that Mr. Schoenborn acted as a result of his delusions in an attempt to save his children:

· Dr. O’Shaughnessy’s opinion;

· Dr. Lohrasbe’s concession that the following things also support that opinion;

· the Eagle Ridge incident in 1999 and the similarities of the delusions, and obsessions or concerns particularly regarding drugs, sexual molestation and semen;

· the Orajel incident;

· the school incident at Diamond Vale;

· the previous smell of a foul odour on Max’s head;

· the history of prior psychotic episodes;

· the Chico incident and the “Allan, leave my pants alone” incident, if they occurred, at least in Mr. Schoenborn’s mind;

· the belief that somebody was trying to sell a cell phone to one of the children;

· the attempt at suicide, although I note this is really equivocal and it could have been motivated by guilt as much as a desire to be with the children;

· the history of Mr. Schoenborn’s relationship to his children and the close, caring nature of that relationship confirmed by Ms. Clarke;

· subsequent statements made by Mr. Schoenborn to Mr. Robinson, Dr. Chale and Dr. O’Shaughnessy, and subsequently to Dr. Lohrasbe. I note all of these statements do suffer from the possibility of reconstruction and an attempt to rationalize or justify what Mr. Schoenborn has done after the fact;

· the fact that it is rare for a person to kill their children in retaliation or as a result of anger towards their spouse, although it does occur.

[214] The defence then reviews those pieces of evidence that could support the retaliation hypothesis. The defence points out that Dr. O’Shaughnessy is of the opinion that Mr. Schoenborn does not fit that hypothesis. He points out that there is no evidence of this type of anger in the days or weeks before the killings.

[215] Dr. Lohrasbe’s opinion is that Mr. Schoenborn is not a vengeful person. This is consistent with the opinion that Mr. Schoenborn does not fit the anger hypothesis. It is reasonable to assume a person that is not vengeful is less likely to kill their children to spite their spouse.

[216] Dr. Lohrasbe pointed out that the most dangerous time for violence is at the time or immediately after a separation. However, the defence points out that in this case the evidence of Mr. Schoenborn is supported by Ms. Clarke when she says that he accepted the fact that they were separated and appeared to respect her decision. He was depressed, but did not express anger.

[217] In support of the retaliation hypothesis is the evidence of the long-standing suspicions of infidelity and the fears that Ms. Clarke may flee with the children.

[218] The defence argues that Dr. Lohrasbe accepted 40 items put to him that are consistent with or support the psychotic hypothesis rather than the anger hypothesis. I referred to some of those when I reviewed Dr. Lohrasbe’s evidence.

[219] The defence points out that Dr. Lohrasbe and Dr. O’Shaughnessy both described the phenomena referred to as the “aha” moment. This occurs when a person who has fears and suspicions who may be paranoid or psychotic comes to the conclusion that all of their beliefs are true. This may be triggered by something insignificant or imagined. Dr. O’Shaughnessy pointed out that this was similar to what Mr. Schoenborn described to him. It also appeared similar to what Mr. Schoenborn described to Dr. Lohrasbe, although it was not clear what the triggering event was in Dr. Lohrasbe’s opinion. It is also consistent with what Mr. Schoenborn said to Ms. Clarke when she visited him at KRCC that things overwhelmed him.

[220] The defence argues that Mr. Schoenborn’s anger is really related to his psychosis or delusions about the infidelity of Ms. Clarke or harm to his children. The defence argues that this is part of his psychosis and supports his psychosis, rather than something independent from his psychosis. The defence points to the five years of a reasonable, stable and happy relationship Mr. Schoenborn had with Ms. Clarke before the 1999 psychotic incident.

[221] This evidence may support the fact that Mr. Schoenborn was psychotic, but does not support the defence under s. 16. If Mr. Schoenborn acted out of anger rather than the belief that he was saving his children, it cannot be suggested that he had any misapprehension about whether that was wrong. Clearly if he acted out of anger he would have appreciated that other people would think that it was wrong for him to do so.

[222] The defence argues that the evidence of Dr. O’Shaughnessy should be preferred to that of Dr. Lohrasbe. Dr. Lohrasbe acknowledged that Dr. O’Shaughnessy’s opinion was entirely reasonable. The defence argues that Dr. O’Shaughnessy was not argumentative in giving his evidence or in response to cross-examination, and that he had the advantage of seeing Mr. Schoenborn within weeks after the killing rather than 17 or 18 months after, as Dr. Lohrasbe did.

[223] The defence is critical of Dr. Lohrasbe and says that he was argumentative when he gave his evidence and acted as an advocate. I agree that he defended his opinions in cross-examination, but many times he was simply trying to explain his opinion or his inability to reach a firm conclusion.

[224] The defence argues the opinions he gave in this trial contradicted opinions he gave in other cases as follows:

· the reliance that can be placed on a lay person’s opinion. His evidence in an earlier trial, R. v. Zhang, was put to him in which he stated that lay people are often very tolerant of aberrant behaviour and it may take many more symptoms before a lay person would label somebody as psychotic than it would for a psychiatrist. Dr. Lohrasbe simply said in response that it was difficult to generalize;

· Dr. Lohrasbe said he would expect Mr. Schoenborn to disclose his most pressing concerns while he was in a psychotic state. However, it was put to him that in the Zhang case he indicated that a paranoid person may not do so. Dr. Lohrasbe pointed out that in the Zhang case there were also cultural issues that may have been a consideration for his opinion. He pointed out that he did not remember all the specifics of the Zhang case;

· In this case, Dr. Lohrasbe said he had concerns because of the inconsistencies in Mr. Schoenborn’s reporting, both to others and during his interviews. It was pointed out to Dr. Lohrasbe that in a case called Donnelly he said that it was not unusual for a person to add details or for their evidence to change, and in that case it did not concern him. Dr. Lohrasbe pointed out in the Donnelly case there was no competing hypothesis and that was one of the reasons he was not concerned;

· the defence argued that Dr. Lohrasbe also gave inconsistent evidence as follows:

Ø initially he referred to the 1987 incident and his concerns that the diagnosis may really have been related to drugs or alcohol abuse, but subsequently in cross-examination acknowledged that the doctor who saw Mr. Schoenborn in that case diagnosed it as psychosis-schizophrenia; although not a clear diagnosis of schizophrenia;

Ø Dr. Lohrasbe initially said Mr. Schoenborn did not recognize that his beliefs about Ms. Clarke were delusional. Portions of his interview with Mr. Schoenborn were put to him. It is clear from a review of the entire evidence, however, that what Dr. Lohrasbe was really saying was that Mr. Schoenborn seemed to change from time to time. Sometimes he believed that he was delusional about Ms. Clarke, and other times he stated he had seen nothing to change his mind;

Ø Dr. Lohrasbe initially said that Mr. Schoenborn spontaneously said to him “The children were mine to take.” Ms. Clarke was not. In cross-examination, it was clear that the statements by Mr. Schoenborn were in response to questions by Dr. Lohrasbe about whether he had thought of harming Ms. Clarke. Dr. Lohrasbe said he meant that he was surprised by the use of the phrase “The children were mine to take” and the idea of possession that it implied;

Ø Dr. Lohrasbe said that Mr. Schoenborn expressed extreme anger when discussing the incident at the Vernon toy store. When a recording of the interview was played back to Dr. Lohrasbe, it was clear that Mr. Schoenborn’s tone of voice did not communicate anger as Dr. Lohrasbe had said. Dr. Lohrasbe then said that perhaps he meant it was his demeanour or that he may have been confused and it was some other portion of the interview.

· the defence points out that Dr. Lohrasbe refused to characterize Mr. Schoenborn’s beliefs of Ms. Clarke’s infidelity as delusional. It was pointed out that Dr. O’Shaughnessy and Dr. Chale both viewed them as delusional. This is more a difference of opinion that affects the weight given to Dr. Lohrasbe’s opinion, but other than that is not a criticism of his opinion.

[225] I agree that there are differences between the opinions of Dr. O’Shaughnessy and Dr. Lohrasbe, but they are not as far apart as might first appear. Dr. O’Shaughnessy is sure of his opinion. It appears to me, however, that although he says he challenged Mr. Schoenborn with regard to the issue of anger towards Ms. Clarke that it was really a limited challenge. Dr. O’Shaughnessy does recognize that his opinions rely on the validity of Mr. Schoenborn’s explanation, but Dr. O’Shaughnessy is alive to the fact that he cannot simply accept the word of Mr. Schoenborn at face value.

[226] Dr. Lohrasbe is more cautious. The defence counsel has pointed out a number of weaknesses and errors in his opinion. These came out after more than three days of skilful cross-examination. Despite the errors, Dr. Lohrasbe appeared to simply be trying to explain his concerns and the reason he was unable to form a firm opinion. He did not reject the opinion of Dr. O’Shaughnessy, he was simply not as confident as Dr. O’Shaughnessy in forming an opinion.

[227] Dr. Lohrasbe was accused of advocacy. His opinion was being challenged in cross-examination about his concerns that Mr. Schoenborn had not disclosed his fears prior to killing the children. Dr. Lohrasbe said that it was “difficult for him to believe” that a psychotic person would have been able to exercise enough control to avoid disclosing the central issue of their delusions while they were in a psychotic state. Dr. Lohrasbe was merely trying to explain the basis of his opinion in cross-examination. Sometimes the line can be difficult to draw during cross-examination, especially where the expert’s opinion is about a person’s state of mind. Sometimes cross-examination appears to become argument between counsel and the expert. In making this comment, I am not directing any criticism towards Dr. Lohrasbe or defence counsel.

[228] I note that Dr. Lohrasbe was prepared to and did agree with many of the suggestions put to him by defence counsel.

[229] I am not critical of Dr. Lohrasbe. I agree with him that this is a difficult and a complex case. Dr. Lohrasbe, in many ways, was very fair. For instance, he said that it was difficult not to have sympathy for Mr. Schoenborn given the circumstances of his confinement, living with the fact that he had killed his children and knowing that he was a pariah in society, including the prison society.

[230] This shows a great deal of compassion on Dr. Lohrasbe’s part. I think it would be difficult for most people to show any sympathy for Mr. Schoenborn given the fact that he has killed his children. I make no determination as to whether Mr. Schoenborn deserves sympathy or abhorrence. I must judge this case on the evidence and not on any sympathy or prejudice towards anyone.

[231] I also note that Dr. Lohrasbe did agree with Dr. O’Shaughnessy that if Mr. Schoenborn was psychotic at the time he killed his children and motivated by that psychosis, that he would not be able to understand that what he did was wrong. He would be so overwhelmed by his delusions and his thoughts would be so disordered that he would be incapable of making that kind of judgment, he would have no connection to reality or ability to understand that what he was doing was wrong in the minds of other people, even if he did understand that it was wrong in law.

DECISION

[232] If s. 16 does not apply Mr. Schoenborn should be convicted and sentenced to life imprisonment? If s. 16 does apply, in other words, if it is more likely than not that Mr. Schoenborn is not criminally responsible due to mental disease, then the verdict should be that Mr. Schoenborn committed three acts of first degree murder as charged, but is not criminal responsibility on account of mental disorder. In that case an order would be made with regard to a disposition hearing.

[233] No one can know for sure whether Mr. Schoenborn at the time of killing his children was suffering from a mental disorder that rendered him incapable of knowing that it was wrong. However, as I said at the beginning of this decision, the burden is not on Mr. Schoenborn to show that it is sure that s. 16 applies, but rather that the evidence must show that it is more likely than not that s. 16 applies. All of the evidence must be considered without sympathy or prejudice to anyone. I must consider all of the evidence with care and with a certain amount of skepticism.

[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. Schoenborn’s 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. Schoenborn’s 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. O’Shaughnessy 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 children’s home. He did not take any money with him or his wallet. I was referred to Mr. Schoenborn’s need for forgiveness expressed at the trial. Dr. Lohrasbe said he would expect a person’s 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] I am not bound by the experts’ opinions. However, in a case such as this, where both experts agree, I must be very careful before I reject their opinions. There must be a rational foundation in the evidence before I could reasonably reject their opinions. The decision R v. Molodowic, [2000] 1 S.C.R. 420 is an example where the Supreme Court of Canada allowed an appeal from a conviction by a jury as unreasonable in the face of uncontested expert opinion. In this case, Dr. Lohrasbe was not challenged in cross-examination on that opinion and the Crown did not ask Dr. Lohrasbe to explain his opinion. Of course, the Crown could not cross-examine Dr. Lohrasbe as he was their own witness. I again must remind myself of the test which I have to apply in this case, being that of the balance of probabilities. 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. Schoenborn’s 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. Lohrasbe’s 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. This is evident in his initial contact with Ms. Clarke after the killings. He was more concerned about dramatizing his own situation and hardships than Ms. Clarke’s feelings or telling her what he did or why. I agree with Dr. O’Shaughnessy and Dr. Lohrasbe that he lacks insight into himself and his illness. In his initial interview with Dr. O’Shaughnessy, 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. O’Shaughnessy’s 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.

VERDICT

[247] Therefore, I find that Mr. Schoenborn did commit the first degree murder of each of his children as described in the Indictment, but is not criminally responsible on account of mental disorder.

“R.E. Powers J.”

POWERS J.

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