by Robin Burridge with files from Darren MacDonald of Sudbury.com
WIIKWEMKOONG—A 24-year-old Wiikwemkoong man who attempted to use the bearwalker defence to fight a charge of aggravated assault was found to be criminally responsible in a Gore Bay court recently. This was the third time the controversial bearwalker defence has been used in a Manitoulin court since 1945. Of the three uses of this defence, only one has proven ultimately helpful to the defendant’s case in court.
The bearwalker, in Anishinaabe belief, is an evil spirit called out of the wilderness by an evil person or witch to use “bad medicine” to inflict sickness, harm and even death upon others.
In the most recent case, in August 14, 2017, the Wikwemikong Tribal Police responded to a call of a male who stabbed another male in Wiikwemkoong. The Ontario Provincial Emergency Response unit, the Ontario Provincial Canine Unit and the UCCM Police assisted in the search of a male subject who fled from the scene.
Levi Mishibinijima, the perpetrator, was found, arrested and charged with attempted murder; assault with a weapon; aggravated assault; uttering threats to cause death and possession of weapons for dangerous purpose.
The victim was transported to Health Sciences North and treated for blood loss and a two-inch stab wound to his neck.
According to court transcripts obtained by Sudbury.com, Mr. Mishibinijma claimed that he heard the voice of his dead father telling him that the victim had murdered him and that he should stab him in revenge.
Witnesses testified that they saw the accused run up behind the victim and stab him and say, “I know you killed my father.”
The accused told police that he was “getting a weird vibe” that was telling him to kill.
“I just thought it was like bear witch or bearwalker, bad vibes,” he told police. “It was like kinda’ taking control of me.”
Mr. Mishibinijma pleaded not guilty due to a mental disorder. The defence called a mental health physician to the stand who said she had examined the suspect after he had been admitted to Waypoint (a mental health facility in Penetanguishene) and testified that the suspect had displayed erratic behaviour that led her to conclude that he was suffering from psychosis, likely schizophrenia.
He “winked and made kissing gestures towards female staff,” she testified. “He was also seen laughing to himself, and making facial grimaces and grunting noises for no apparent reason. He was also seen licking his window.”
“The statements demonstrate paranoia toward the victim,” she testified. “He was influenced by hearing voices, seeing his father’s spirit, and believed his father was speaking to him at the time, telling him what to do. Thought insertions are features of psychotic illness that point to a disturbed state of mind.”
However, she also concluded that, in his state of mind, he still knew that stabbing someone was wrong.
“When asked whether this mental disorder would have rendered him incapable of appreciating the nature and quality of the act, she replied ‘no’,” the court transcript says. “She said, ‘I think he knew what he was doing … I think he knew he was stabbing a human being … but he was acting under the influence of his mental disorder’.”
“He was not able to access rational choice… He was not able to consider the wrongfulness of his actions.”
She also testified that she was unable to get information from his family and friends about whether there was a history of mental health issues, nor was she able to access any of his prior medical history.
In her ruling, Justice Vanessa Christie said the Criminal Code describes the test for mental competency this way: “No person who committed an offence 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 may be convicted. The test is a legal test, not a medical test.”
That’s a crucial element of this case, Justice Christie said, because for the mental disorder defence to succeed, the suspect in the case must not be aware that what they are doing is wrong, or be able to appreciate the effect of their actions.
“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,” Justice Christie added.
In this case, there is evidence the suspect knew his actions were wrong, even if he believed he was receiving instructions from his dead father, the Sudbury.com report notes.
While not questioning the conclusions of the physician, who examined the suspect after the stabbing, Justice Christie did question why the physician was not given access to his records, including information from previous arrests, nor was she given access by the defence to the video of the interview of the suspect by police, all of which would have given her more information for her mental health evaluation.
More important, the justice explains, for the mental-health disorder defence to succeed, it has to be demonstrated that the individual is operating under delusions to an extent that they don’t know what they are doing is wrong.
In this case, the suspect voiced his belief that he was trying to kill the victim as revenge for the murder of his father. There was no evidence he was operating under the assumption that murder was not wrong, or that stabbing was not wrong. Instead, the evidence showed he believed that he was justified in his action because he was taking revenge.
“The point is that if the person has a mental makeup which is such that he lacks even the capacity for rationality, then responsibility is (reduced),” the judge said. “If he has the capacity but simply fails to use it, responsibility is not precluded.”
In other words, even if he stabbed the victim as a result of hearing voices, it only helps Mr. Mishibinijima’s defence if he was in a state where he no longer knew right from wrong.
In this case, the suspect fled the scene of the crime, an indication he knew he had done something wrong. And when arrested, he openly talked about the attack as being revenge for his father’s death. That meant the suspect was aware of what he had done, and the reasons for it, and that it was not legal.
Under Canadian law, the defence has to show that the accused, because of mental disorder, did not know what they were doing was wrong.
“I am not convinced, on a balance of probabilities, that any disordered condition of his mind deprived him of the ability to know right from wrong,” Justice Christie said. “Responsibility is not excused in these circumstances.”
On Tuesday, February 13, the judge found Mr. Mishibinijima guilty of aggravated assault and dissolved of all other previous changes. On Tuesday, March 20, he will return to court to set a date for sentencing.
In 1997, Sheguiandah First Nation resident Leon Jacko also used the bearwalker defence to fight his manslaughter charge in the 1995 death of Ron Thompson, winning the case in a trial that became known as the “Bearwalker Trial” and which received national attention.
After a day of hard drinking, Mr. Jacko and Mr. Thompson, friends, were dropped off at a home on Indian Mountain Road. Later that evening, a nearby neighbour reported hearing sounds not unlike a bear, almost like animals fighting.
That same evening Mr. Thompson was found, face down, “in a blood-spattered clearing” outside a truck camper behind the house where Mr. Jacko was living, the May 28, 1997 edition of The Manitoulin Expositor reported. Mr. Thompson had been bludgeoned to death with a walrus penis bone, an artifact brought back from Baffin Island by a family member. Mr. Jacko claimed that he had acted in self defence, seeing Mr. Thompson as a bearwalker.
Mr. Jacko was acquitted of Mr. Thompson’s death in June of 1997 by the late Judge Richard Trainor.
It was noted by the Crown at the time, John Luczak, that the bearwalker case “applies what the law has already been doing. The tendency now is to look more at the subjective component.” He added that the evidence produced by the accused about the nature of Native spirituality and the traditional belief in the bearwalker figure “helped convince the judge that the accused had a reasonable apprehension of the deceased and helped the judge understand certain utterances made by the accused immediately after the incident.”
The first reported use of the bearwalker defence was in 1945 when James Nahwaikezhik, also of Sheguiandah First Nation, shot and killed his father, believing his parents had cursed him after a self-described witch doctor, Lawrence Tolouse, had told him so.
According to an Expositor article published at the time of the 1997 trial, Mr. Nahwaikezhik’s mother began giving her son “love potions” in the hopes of helping the 33-year-old find a wife. Mr. Nahwaikezhik soon began to suffer fierce headaches and thought he might have been ‘bearwalked’ by his mother, which was later confirmed by the blind witch doctor, Mr. Tolouse, who told Mr. Nahwaikezhik that he could see visions of his parents scheming to kill him.
The May 28, 1997 article states, “The headaches became worse, apparently, and on the night of August 16, 1945, James Nahwaikezhik, after continually grabbing his head in pain, suddenly declared, ‘I’m going to kill those old people’!”
“Taking a rifle, he crossed his parents’ home and began to scream, ‘Why have you been bearwalking me?’”
“It was 3 am, and when his father came to the door, the son shot him,” the article continues. “He told the court that he shouted for his mother (who escaped out the back door and into the bush) and had thought he would kill her too, ‘but then I decided I wouldn’t’.”
“’My father was bearwalking me, so I killed him,’ Mr. Nahwaikezhik told RCMP Corporal Fred Truscott. Apparently, his headache had ended after he killed his father.
Mr. Nahwaikezhik’s lawyer entered a plea of insanity, but the chief psychologist of Ontario’s Attorney General’s Department argued that the plaintiff had been sane and had acted on a belief that had been in his mind since childhood. The jury agreed with the Crown’s arguments, and only five hours after deliberation, found Mr. Nahwaikezhik guilty of murder. The trial ended on Hallowe’en, 1945.
He was sentenced to death by hanging but the capital punishment was committed to life imprisonment just 12 days before he was to have been hung at Sudbury District jail.
Mr. Nahwaikezhik was transferred to the Kingston Penitentiary and was eventually parolled. He returned to the Sheguiandah First Nation and died in the late 1950s.