COURT OF APPEAL FOR ONTARIO
Cronk, Epstein and Brown JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew Richmond
Appellant
Apple Newton-Smith, for the appellant
Alison Wheeler, for the respondent
Heard: September 17, 2015
On appeal from the conviction entered on December 14, 2006 by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury.
1On March 13, 2004, Joycelyn Paul was found dead in the kitchen of the home she shared with her only son, the appellant, Andrew Richmond. The circumstances were horrific. Ms. Paul had been stabbed multiple times in the heart. She had also been decapitated and her house had been set on fire.
2On December 6, 2006, following a three-week trial before a judge and jury, the appellant was found guilty of the second degree murder of his mother. The next day, the appellant raised the defence of mental disorder under s. 16 of the Criminal Code, R.S.C. 1985 c. C-46, and a criminal responsibility hearing ensued. On December 14, 2006, the jury rejected the appellant’s mental disorder defence and again found him guilty of second degree murder. On February 1, 2007, the appellant was sentenced to life imprisonment, without parole eligibility for 12 years.
3The appellant appeals his conviction. He advances one main ground of appeal, in two ways. First, he argues that the jury’s rejection of his mental disorder defence was unreasonable because there was no rational foundation in the evidence for the jury to reject opinion evidence regarding his criminal responsibility set out in a pre-conviction, psychiatric assessment report. Second, the jury’s rejection of his defence was unreasonable in light of fresh evidence of a post-conviction, psychiatric assessment of his criminal responsibility. He requests an order substituting a finding of not criminally responsible by reason of mental disorder (“NCR”) or, in the alternative, a new trial on the issue of criminal responsibility.
4For the reasons that follow, I would dismiss the appeal. In my view, the jury’s verdict was reasonable and available to it on the evidence before it. Further, the fresh evidence tendered by the appellant could not reasonably be expected to have affected the verdict, and the appellant has not adequately explained his failure to tender post-conviction, psychiatric assessment evidence at his NCR hearing. Accordingly, I would deny leave to admit the fresh evidence on appeal.
I. Background in Brief
(1) The Offence
5The appellant is an only child. He was raised by his mother and lived at home. In the fall of 2003, his mother sold the family home where she and the appellant had lived for many years.
6In the months leading up to the sale and his mother’s murder, the appellant had engaged in bizarre and alarming behaviour. In brief, the relevant incidents included the following.
7Ms. Paul told several people that the appellant was angry at her and unhappy with her decision to sell the house; that he had wanted to buy the house for $10 or $20; and that he had maintained that the house was his. She also told a friend that the appellant had claimed that she was not his mother; that he had demanded to know the identity of his natural mother; and that he had said that he wanted to burn down their new house. He also began making his own food because he did not trust his mother and thought that she was putting “stuff” in his food.
8In addition, in mid-June 2003, the appellant called the police and claimed that he had been sexually assaulted by his uncle some 15 years earlier and that his mother had failed to stop the assault. No charges were laid. The appellant’s aunt also reported that the appellant had said he was planning to kill members of his family. His uncle called the police when the appellant said that he was going to attack him because he knew that his uncle wanted to kill him.
9Also in June 2003, the appellant was cautioned by the police for assaulting a cab driver and his mother obtained an order for his involuntary admission to a psychiatric facility. The appellant discharged himself from hospital against medical advice. His discharge summary indicated that his mother had reported changes in his behaviour in the preceding four to six weeks, including increased isolation and irritability.
10About three months after his discharge from hospital, the appellant grabbed a stranger in the subway, spat in his face and pushed him down the stairs, saying “don’t you ever say that to me again”. He also glared at another person in the subway station and punched him in the eye, while talking to himself.
11The sale of the family home closed in November 2003. Four months later, at about 11:00 p.m. on the evening of March 13, 2004, the appellant went to the door of a nearby neighbour and told her that there was a fire at his house. When the neighbour declined to allow him to enter, the appellant left. He walked 10 or 15 minutes away and approached a stranger’s house. When the occupant answered the door, the appellant said that his house was on fire. This neighbour let him in and he used the telephone. In doing so, he asked the neighbour what telephone number he should call and appeared unsure of where he lived.
12After calling 911 and reporting the fire at his house, the appellant began to walk home. He flagged down police officers who had been dispatched in response to the 911 call. He told the police that his house was on fire and that he had called 911. In response to the officer’s questions, he also said that he was uncertain if his mother was at home and offered various explanations for his own recent whereabouts.
13On arrival at the house, firefighters discovered Ms. Paul’s lifeless body. She had sustained multiple wounds to the heart, various bruises around her eyes and stab wounds in her right ear, below her chin and on her left thigh. She had also been decapitated and it appeared that efforts had been made to dismember parts of her body. Ms. Paul had suffered extensive burns in the fire, covering more than 90 percent of her body.
14The police found a blue barrel in the kitchen that appeared to have streaks of blood on both the interior and the exterior. They also discovered seven knives in the kitchen, one of which had been broken in two. Subsequent testing revealed the appellant’s blood on four of the knives. A notebook was also found on top of the microwave in the kitchen. It contained a handwritten note, apparently addressed to the appellant, setting out the name and contact information for Ms. Paul’s financial advisor and indicating “She has account for J. Paul, your mum, if anything should happen to me.”
15Experts later determined that the fire at the appellant’s home had been set deliberately.
16About 10 and one-half months later, on February 2, 2005, the appellant was charged with first degree murder.
(2) Litigation History
17The appellant’s first trial commenced with pre-trial motions in the Superior Court on April 26, 2006. On completion of the motions, the Crown requested an adjournment to permit a criminal responsibility assessment of the appellant. For various reasons that are irrelevant to this appeal, a mistrial was declared and it was agreed that the pre-trial rulings would apply at the new trial. The matter was then adjourned pending the availability of a bed for the appellant at the Centre for Addiction and Mental Health (“CAMH”) in Toronto.
18On June 12, 2006, the appellant was admitted to the inpatient assessment unit at CAMH. He presented with symptoms of acute psychosis, including paranoia, conceptual disorganization and grandiose delusions. As a result, staff at CAMH concluded that a criminal responsibility assessment could not then be conducted and the administration of antipsychotic medication was commenced. The appellant’s assessment was eventually undertaken in July 2006.
19In his ensuing assessment report dated September 25, 2006, the appellant’s attending psychiatrist, Dr. Phillip Klassen of CAMH, diagnosed the appellant as suffering from schizophrenia. As discussed in more detail below, he also expressed the opinion that the appellant’s circumstances presented “an extremely strong circumstantial case” for an NCR finding.
20The appellant’s second trial began on November 16, 2006, and continued for three weeks. No issue of his criminal responsibility was raised before the jury. The appellant defended the case on the basis that the Crown had failed to prove, to the requisite criminal standard, that he had killed his mother.
21The jury began its deliberations on the afternoon of December 4, 2006. On the morning of December 6, it found the appellant guilty of second degree murder. Shortly after the verdict, the defence indicated that it intended to raise the issue of criminal responsibility and to call Dr. Klassen, who was then away in Nunavut, to testify. The trial judge expressed concern with the timeliness of this procedure and the possible effect it would have on the jury, as the mental disorder defence had not been raised previously at trial.
22In the event, the NCR hearing commenced on the following day, Thursday, December 7, 2006. The defence called two civilian witnesses who had already testified at trial and the hearing was then adjourned pending Dr. Klassen’s return from Nunavut. Dr. Klassen testified for the defence on Monday, December 11, 2006.
23The Crown called no evidence. It did not dispute that the appellant suffers from schizophrenia, instead arguing that the appellant had not met his burden under s. 16(3) of the Criminal Code to establish on a balance of probabilities that his mental illness rendered him incapable of appreciating the nature and quality of his act, or of knowing that it was wrong.
24On December 14, 2006, after brief submissions by counsel and the trial judge’s charge on the NCR defence, the jury retired for deliberations. After less than 90 minutes, it returned its verdict rejecting the mental disorder defence and again finding the appellant guilty of second degree murder.
(3) Expert Evidence at the NCR Hearing
25Dr. Klassen testified that the appellant suffers from schizophrenia, with various psychotic-related symptoms. In his September 25, 2006 report, Dr. Klassen indicated that, on admission to CAMH, the appellant presented with a history of, and ongoing, active psychosis, including auditory hallucinations, grandiose and paranoid delusions, significant thought form disorder and conceptual disorganization, and functional decline.
26Following the administration of anti-psychotic medication, the appellant’s condition improved somewhat. According to Dr. Klassen, as a result of this medication regime, the appellant came to recognize the nature of his mental illness and acknowledged some of his psychotic symptoms, including his auditory hallucinations. However, he lacked insight into his other psychotic symptoms and continued to exhibit ongoing, severe psychosis.
27Throughout his stay at CAMH in the months leading up to the NCR hearing, the appellant denied any involvement in the death of his mother and in the setting of the house fire. He also refused to consent to any interviews by his assessment team with members of his family or his friends, including his former girlfriend.
28Based on the information that was available to him, Dr. Klassen offered the opinion that there was “an extremely strong circumstantial case” for an NCR finding. In Dr. Klassen’s view, at the time of the events in question, the appellant was suffering from a severe psychotic illness with typical symptoms of schizophrenia. The circumstances of the crime, Dr. Klassen suggested, were indicative of an “overkill phenomenon” associated with a psychotic motivation. Dr. Klassen explained this phenomenon in these terms: “when a person is killed they’re sometimes killed more than you need to kill them, so to speak”.
29Dr. Klassen also suggested that the appellant’s conduct was related to his delusional belief that his family members, including his mother, were imposters intent on causing him harm. Dr. Klassen indicated that the appellant felt that the imposter physically manifest as his mother was at the centre of a conspiracy against him and that she “needed to be killed, indeed exterminated in a most definitive fashion” in order to protect himself.
30Dr. Klassen was unequivocal in his diagnosis of the appellant’s schizophrenia. However, he offered a more qualified opinion regarding whether the appellant was incapable of appreciating the nature and quality of his acts, or of knowing that they were wrong, due to his mental illness. During his testimony, Dr. Klassen made clear that his opinion that there was an extremely strong circumstantial case for an NCR finding was predicated on the balance of probabilities standard set out under s. 16(2) of the Criminal Code, rather than on any conclusion that the evidence in support of an NCR finding was overwhelming.
31Dr. Klassen also candidly acknowledged gaps in the information on which his criminal responsibility assessment of the appellant had been based. First, as described above, because the appellant denied any involvement in the offence, Dr. Klassen had no account from him of the circumstances surrounding the death of Ms. Paul. Moreover, due to the timing of the jury’s initial verdict and his own absence in Nunavut, Dr. Klassen was unable to interview the appellant before testifying at the NCR hearing. The resulting absence of any account of the killing from the appellant led, in Dr. Klassen’s words, to “an element of piecing things together”. Second, the appellant’s assessment team had been unable to interview any of the appellant’s family members or friends to aid in his criminal responsibility assessment.
32Dr. Klassen agreed on cross-examination that the opportunity to interview or interact with the appellant was an important part of his assessment of the appellant’s criminal responsibility and that the lack of an account of the killing from the appellant prevented him from offering a definitive opinion on this central issue:
Q. You have some transcripts before you; you have some collateral information, significant degree of that information, but would you characterize your interviews or interaction with him as an important part in your determination as to whether he’s criminally responsible?
A. Yes.
Q. So it’s a strong circumstantial case?
A. That’s my – yes, that’s my opinion.
Q. You can’t say – can you – you can’t say definitively, you’re saying it’s a circumstantial case, is that right?
A. Right.
Q. Okay?
A. I’m saying – I mean, the critical missing element, as you’ve quite correctly pointed out apart from the shocking loss of this man’s health care record by our facility, but apart from that is the fact that Mr. Richmond has not, in my opinion, truly spoken to us of what he knows of the murder of his mother. But I think it’s a strong circumstantial case which is why I – I’m sort of saying on the balance of probabilities, but it’s a circumstantial case.
33Nevertheless, Dr. Klassen’s opinion remained that the appellant was delusional and had “deteriorated significantly to the point where his capacity for choice regarding his family” had been lost.
II. Fresh Evidence
(1) Parties’ Positions
34On appeal, the appellant seeks leave to file a post-conviction, criminal responsibility assessment report by Dr. Klassen, dated January 15, 2015, as fresh evidence. The appellant argues that this report addresses the “missing piece” relied on by the Crown at the NCR hearing to challenge the foundation for Dr. Klassen’s opinion because it provides an account, by the appellant, of Ms. Paul’s murder. Further, the appellant says that the report meets the criteria for admission as fresh evidence and that it is in the interests of justice to admit it.
35The Crown opposes the admission of the fresh evidence. While the Crown acknowledges that, for the most part, the report in question is admissible under the rules of evidence as expert opinion evidence, it contends that the evidence could not reasonably be expected to have affected the jury’s verdict. Further, the appellant has failed to offer any meaningful explanation for his failure to tender the evidence at the NCR hearing.
(2) Nature of the Fresh Evidence
36Dr. Klassen met with the appellant in February 2014, almost 10 years after Ms. Paul’s death and approximately seven and one-half years after the date of his original report, to reassess his criminal responsibility in light of his conviction for his mother’s murder. For the first time, the appellant provided Dr. Klassen with an account of the events leading up to and surrounding his mother’s death.
37As outlined by Dr. Klassen in his 2015 report, the appellant stated that, during an argument about money, Ms. Paul slapped the appellant twice. The appellant slapped her to stop her from hitting him again. The appellant said he struck Ms. Paul in the head after she swung a knife at him. At this point, Ms. Paul fell and the appellant noticed blood coming out of her ear. The appellant told Dr. Klassen that he was afraid his mother was dead and so he “tried to cut up the body” but when this failed he had to “play it up like someone else did it”.
38The appellant said that he left the house and came back to find it on fire. He told Dr. Klassen that he thought the fire started because his mother had been cooking on the stove. The appellant reiterated that he only hit his mother once and that no weapons were involved. After further discussion, the appellant said that he probably “poked her in the heart one time” to make sure his mother was dead. He explained that he tried to cut off his mother’s head and hands to avoid detection, but that after decapitating his mother he could not remove her hands. After taking a shower, the appellant left the house.
39The appellant told Dr. Klassen that he felt his mother was an imposter on the night in question. He said that he felt like the leader, “the worst person”, was gone after he left the house. When asked why he had not told Dr. Klassen any of this information before, the appellant said that “of course you never want to go into jail”.
40Based on his February 2014 reassessment of the appellant, Dr. Klassen reaffirmed his previous diagnosis of schizophrenia. He also noted that the appellant continues to have symptoms of psychosis as part of his schizophrenia and, while partially treated, likely has a treatment-resistant form of the illness.
41Dr. Klassen also revisited the question of the appellant’s criminal responsibility. In so doing, he wholly discounted the appellant’s account of the critical events. Dr. Klassen explained that: i) the appellant’s “self-report has not allowed mental health assessors to create a cogent narrative with respect to his mental state at the material time”; ii) the appellant had “variously presented as vague, or reported poor recall”; and iii) in the alternative, the appellant reported “a highly improbable scenario involving self-defense, and having no involvement with the setting of the fire(s)”, with the result that his account was “completely inconsistent with available forensic data”.
42As a result of these and other factors, Dr. Klassen stated that he had “very little confidence in [the appellant’s] self-report” and expressed the view that it was necessary “to put aside [the appellant’s] self-report and address the issue of criminal responsibility by looking largely at collateral material and at observable illness symptoms”.
43Dr. Klassen concluded that, from a psychiatric perspective, an NCR defence was available to the appellant. He reasoned that while the appellant was “likely aware” that he was killing his mother, he believed that she was a “malevolent imposter”. Given his psychotic symptoms, the appellant was “significantly compromised” with respect to his rational perception, rational choice, and the ability to appreciate the nature and quality of his acts at the time of the murder. Dr. Klassen noted that while the appellant was likely aware of the legal wrongfulness of his actions, his appreciation of their moral wrongfulness was, again, “significantly compromised”. Dr. Klassen concluded that the appellant’s moral reasoning was “driven largely by psychosis” at the time of the murder and that he likely felt “morally justified” because of paranoid and grandiose delusions he was experiencing at the time.
III. Issues
44I would frame the issues on appeal as follows:
(1) Was the jury’s verdict reasonable when rendered?
(2) Should leave be granted to admit Dr. Klassen’s 2015 report as fresh evidence on appeal?
(3) If the answer to (2) is ‘yes’, does the fresh evidence compel a new hearing on the question of criminal responsibility?
IV. Analysis
(1) The Jury’s Verdict was Reasonable
45The appellant challenges the jury’s rejection of his mental disorder defence and, hence, the reasonableness of the jury’s verdict, on two grounds. First, he argues that, contrary to the Crown’s position at the NCR hearing and on appeal, there were no material deficiencies in the foundation for Dr. Klassen’s opinion that the appellant was not criminally responsible for his mother’s murder.
46Second, the appellant submits that, in light of the manner in which the criminal responsibility hearing unfolded, the jury would have been especially skeptical of the appellant’s mental disorder defence, leading to heightened concern that the appellant was wrongfully convicted.
47I will consider these arguments in turn.
(a) Deficiencies in Dr. Klassen’s opinion on criminal responsibility
48The appellant concedes that there was ample evidence on which the jury could conclude that he had killed his mother. However, based on Dr. Klassen’s evidence at the NCR hearing, he argues that there was uncontradicted expert evidence before the jury that, at the time of his mother’s death, he was suffering from acute and untreated schizophrenia, he had been exhibiting behaviour that was clearly psychotically-motivated, and he had deteriorated to the point that his capacity for rational perception regarding his family had been lost.
49In these circumstances, the appellant says, the jury’s rejection of his NCR defence lacked any evidentiary foundation. Consequently, its ensuing verdict was unreasonable.
50I disagree. I turn first to the applicable legal principles.
51Section 16(1) of the Criminal Code exempts an accused from criminal responsibility where the accused lacks the capacity to know that the act he is committing is wrong. Section 16(1) states:
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.
52In R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, at p. 518, the Supreme Court explained the nature of the inquiry under s. 16(1):
The crux of the inquiry [under s. 16(1)] 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 disfunctions; [T]hese 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.
53And further, at p. 520:
[T]he 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.
54Not every mental disorder, even those that are delusion-driven, will trigger a s. 16 defence. The concept of “wrong” embodied in s. 16(1) contemplates knowledge that an act was morally – not legally – wrong in the circumstances, according to the ordinary moral standard of reasonable members of the community. In R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68, at p. 113, the Supreme Court, citing its earlier decision in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, explained:
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 delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society. [Emphasis in original.]
See also R. v. Campione, 2015 ONCA 67, 329 O.A.C. 245, at paras. 30–31; R. v. Woodward, 2009 ONCA 911, at para. 5.
55In this case, there is no doubt that the appellant suffers, and has suffered for many years, from a severe psychotic illness – schizophrenia – with symptoms that include auditory hallucinations, grandiose and paranoid delusions, and thought disorder and conceptual disorganization, among others. The question, however, is not whether he was mentally ill or acted out of delusions when he killed his mother but, rather, whether he was NCR within the meaning of s. 16 of the Criminal Code. See Woodward, at para. 3.
56The Crown contends that, although there was a viable defence of mental disorder, the appellant failed to meet his burden under s. 16(3) of the Criminal Code to establish at the NCR hearing, on a balance of probabilities, that his mental illness rendered him incapable of appreciating the nature and quality of his act, or of knowing that his act would have been viewed as morally wrong by reasonable members of society. I agree.
57The appellant did not testify at trial or at his NCR hearing. The only medical evidence before the jury in support of his mental disorder defence was that of Dr. Klassen. But the jury was not obliged to accept Dr. Klassen’s opinion that there was a strong circumstantial case for an NCR finding, even though his opinion was not contradicted by Crown expert evidence: R. v. Molodowic, 2000 CSC 16, 2000 SCC 16, [2000] 1 S.C.R. 420, at paras. 7–8; R. v. Grandbois (2003), 2003 CanLII 52129 (ON CA), 174 C.C.C. (3d) 181 (Ont. C.A.), at para. 24. Rather, the jury was entitled to assess the probative value of Dr. Klassen’s evidence in the same manner as any other evidence. Further, in weighing Dr. Klassen’s expert evidence, the jury was entitled to examine its factual foundations and to accord less weight to Dr. Klassen’s opinion if it was not based on facts proven at trial, or where it was based on factual assumptions with which the jury disagreed: Molodowic, at para. 7.
58Molodowic instructs that where there is expert opinion evidence that an accused is NCR, a reviewing court must consider whether there was a rational basis for rejecting it. Justice Huband of the Manitoba Court of Appeal, whose dissenting opinion was approved by the Supreme Court, explained that a rational basis for rejecting expert evidence may arise if there is some “discernible flaw” in the expert’s reasoning or “because the opinion was formulated on too fragile a factual basis or because the opinion conflicts with inferences one might logically draw from other evidence”: R. v. Molodowic (1998), 1998 CanLII 27968 (MB CA), 126 Man. R. (2d) 241, at p. 252.
59However, the Supreme Court in Molodowic also cautions, at paras. 13 and 15, of the real danger that juries can be unduly skeptical of a psychiatric “defence”, which is “often perceived as easy to fabricate and difficult to rebut”. For this reason, “the weight of judicial experience must be brought to bear on the assessment of the reasonableness, as a matter of law, of the conclusion reached by the jury” and “the appreciation of the import of expert psychiatric evidence must be a realistic and reasonable one”. See also R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 29.
60On appeal, the Crown renews its argument, advanced at the NCR hearing, that Dr. Klassen’s opinion regarding the appellant’s criminal responsibility was flawed in two significant respects. First, it rested on a deficient factual foundation because Dr. Klassen did not have the benefit of any meaningful account from the appellant about the offence and because the appellant refused to allow the assessment team to interview any of his family members or his friends, including his former girlfriend. Second, in forming his opinion, Dr. Klassen relied on both a phenomenon reported in the psychiatric literature – the “overkill phenomenon” – and an “imposter theory”, the applicability of which were significantly undermined on cross-examination.
61I agree with both aspects of the Crown’s argument. The Crown established at the NCR hearing that Dr. Klassen’s opinion rested on a fragile and incomplete foundation. This afforded a rational basis for the jury’s rejection of his opinion regarding the appellant’s criminal responsibility. Consequently, on the evidence tendered at the NCR hearing, the jury’s verdict was not unreasonable.
62Absence of any account of events by the appellant. The appellant argues that Dr. Klassen’s inability to conduct a post-conviction interview with the appellant prior to testifying at the NCR hearing was not critical to Dr. Klassen’s opinion on criminal responsibility. In effect, the appellant contends that the absence of any account of events by him was immaterial to the probative value of Dr. Klassen’s opinion that he was NCR at the time of his mother’s death. I am unable to accept this contention.
63First, in my view, Dr. Klassen’s own testimony confirms that an account of events by the appellant may well have significantly affected his assessment of the appellant’s criminal responsibility.
64Throughout his testimony, Dr. Klassen repeatedly stressed that, in his view, it was more probable than not that the appellant’s murder of Ms. Paul was driven by “psychotic issues”. However, he also emphasized that this opinion was based not only on the appellant’s history of delusions and hallucinations but, as well, on the absence of any evidence of a non-psychotically-driven explanation for the appellant’s actions. In other words, Dr. Klassen’s opinion rested in part on what he called the absence of “any compelling alternative motivation for the murder”.
65Read in this light, Dr. Klassen’s testimony supports the conclusion that an account of events from the appellant himself would have figured prominently in the assessment team’s evaluation of his criminal responsibility. For example, in his testimony, Dr. Klassen qualified his opinion on criminal responsibility by noting that the treatment team, “[didn’t] have it, so to speak, from Mr. Richmond himself”. He also agreed that his inability to have a meaningful post-conviction interview or interviews with the appellant was both relevant and unusual, and that this factor undermined his ability to give a “comprehensive opinion with regard to [the appellant’s] criminal responsibility”. He also agreed that interviews or interaction with the appellant were “an important part” of the determination whether the appellant was criminally responsible.
66Based on this evidence, the Crown did not overreach in portraying the absence of a post-conviction interview or interviews with the appellant, and the absence of any account of the murder by the appellant, as material gaps in the factual foundation on which Dr. Klassen’s opinion rested.
67I would add that the absence of any account of the murder by the appellant took on greater significance in this case because the appellant neither testified at trial nor provided a statement to the police regarding the murder. As a result, there was a complete absence at the NCR hearing of any narrative from the appellant concerning his role in his mother’s death.
68Absence of interviews with the appellant’s family members and former girlfriend. I reach a similar conclusion regarding the significance of Dr. Klassen’s inability to interview any of the appellant’s family members or his former girlfriend. Again, Dr. Klassen’s own testimony undercuts the claim that these interviews were inconsequential to his assessment of the appellant’s criminal responsibility.
69The only information available to Dr. Klassen from the appellant’s family and friends was based on the transcripts of their testimony at the appellant’s preliminary inquiry, or transcripts of available police interviews. Dr. Klassen testified that, if the appellant’s assessment team had been able to contact these individuals directly, they may have obtained additional and different information from them.
70Dr. Klassen agreed on cross-examination that, although the information from the appellant’s family members and friends contained in the available transcripts was “actually fairly good”, family members and, especially the appellant’s former girlfriend, were important sources of collateral information. The information to be gleaned from them in direct interviews by experienced mental health professionals, therefore, would have assisted in the appellant’s criminal responsibility assessment.
71Further, since no transcripts of any interviews with the appellant’s former girlfriend or closest friend were available, Dr. Klassen and the other members of the assessment team had no information from either of them. As a result, Dr. Klassen agreed that his criminal responsibility report was not as complete as he would have liked.
72The Crown acknowledges that the absence of direct information from members of the appellant’s family, his former girlfriend, and his closest friend is a less significant gap in the factual foundation for Dr. Klassen’s opinion than is the lack of an account of the killing from the appellant. I agree.
73Nonetheless, based on Dr. Klassen’s description of the importance of direct information from the appellant’s family and friends, the appellant’s refusal to permit contact with these individuals by the assessment team afforded another rational basis for the jury to question the factual foundation for Dr. Klassen’s opinion. It is clear from Dr. Klassen’s evidence that interviews with these individuals by experienced mental health professionals may have provided “a better elaborated picture in whatever direction”. It follows that information from these sources may not have supported the appellant’s mental disorder defence.
74The “overkill phenomenon” and the imposter theory. Dr. Klassen relied on the “overkill phenomenon” and the theory that the appellant was experiencing imposter delusions in respect of his family at the time of the murder to inform his criminal responsibility opinion.
75Dr. Klassen testified that the psychiatric “overkill phenomenon”, which involves the killing of a person “more than you need to kill them”, is often associated with a major mental illness. In his opinion, Ms. Paul’s violent death was consistent with this phenomenon given the multiple stab wounds, decapitation, and efforts by the appellant to inflict harm on Ms. Paul’s body after she was dead. In particular, the “overkill phenomenon” reinforced Dr. Klassen’s opinion that, at the time of the murder, the appellant was experiencing psychotic delusions that impaired his ability for rational perception and rational choice.
76In addition, in Dr. Klassen’s view, there were indications that the appellant believed that his family members, especially his mother, were imposters. In his opinion, this also supported the conclusion that the appellant was experiencing a number of psychotic delusions, and potentially hallucinations, at the time of the murder.
77There are several difficulties with these hypotheses. First, Dr. Klassen confirmed in his evidence that, throughout his interactions with the appellant at the time of the assessment, the appellant consistently referred to Ms. Paul as his mother, never suggested that she was not his real mother “in any serious terms”, and did not correct Dr. Klassen when he referred to Ms. Paul as the appellant’s mother.
78Thus, the appellant’s own conduct during his interactions with Dr. Klassen did not support the thesis that he was labouring under the delusion that Ms. Paul was not his mother but, rather, an imposter.
79Second, Dr. Klassen initially appeared to accept that the imposter theory was a material aspect of his opinion on criminal responsibility. On cross-examination, Dr. Klassen agreed that this theory was central or a significant aspect of his opinion that the appellant was NCR. He suggested that, while there was some uncertainty, “piecing together” the available information, he “would posit that that’s what was happening”.
80However, when questioned later by the trial judge about whether he would still view the appellant as NCR even if he was wrong about the imposter theory, Dr. Klassen stated that this issue was not at the core of his thinking because: i) it is paranoid thinking that drives psychosis in an imposter situation, not the imposter thoughts themselves; and ii) even if all aspects of the case did not fit together perfectly, it remained his view that the appellant had deteriorated to the point that he was unable to make rational choices about his family.
81In these circumstances, the jury was entitled to view Dr. Klassen as having given inconsistent evidence regarding the importance of the imposter theory to his criminal responsibility opinion. If so, it was open to the jury to perceive this as an additional discernible flaw in Dr. Klassen’s opinion.
82Third, in respect of Dr. Klassen’s reliance on both the “overkill phenomenon” and the imposter theory, the jury was entitled to come to its own view of the evidence. With respect to the “overkill phenomenon”, on the entirety of the evidence before it, the jury could have concluded that the appellant’s actions in decapitating his mother, attempting to dismember her body, and setting the house on fire were consistent with a deliberate attempt by him to conceal the killing. As this conclusion would be inconsistent with Dr. Klassen’s view of a psychosis-driven course of conduct, the jury may well have viewed Dr. Klassen’s reliance on the “overkill phenomenon” as another weakness in his opinion.
83To conclude on this issue, Dr. Klassen acknowledged that a person suffering from schizophrenia may still be criminally responsible at law. The defence bore the burden of proof to establish the appellant’s mental disorder defence. And it was for the jury to assess the reliability and probative value of Dr. Klassen’s criminal responsibility opinion.
84There was no evidence from the appellant about why he killed his mother or what he was thinking and experiencing at the time of her death. However, there was evidence establishing gaps in the factual foundation for Dr. Klassen’s opinion and other potential flaws in his analysis of the appellant’s criminal responsibility.
85Further, in key respects, Dr. Klassen’s evidence was qualified and, without any account of events from the appellant, speculative. The basis for his opinion was undermined on cross-examination. It cannot be said that the evidence overwhelmingly made out a mental disorder defence.
86In these circumstances, although the jury could have returned an NCR verdict, the evidence and, importantly, the absence of evidence, was also capable of supporting the conclusion that the appellant had failed to make out his mental disorder defence on a balance of probabilities. I am therefore not persuaded that the jury’s verdict was unreasonable.
(b) Procedure leading to NCR hearing
87As the Supreme Court explains in Molodowicand R. v. W.H., judicial experience demonstrates a real danger that juries may view psychiatric defences, like a mental disorder defence, with undue skepticism. This risk of prejudice in relation to psychiatric defences can create a risk of an unjust conviction. I have approached my analysis of the reasonableness of the jury’s verdict in this case with this risk in mind.
88The appellant argues that this risk was particularly acute in this case because of the procedure leading to the NCR hearing that unfolded at trial. He submits that there is an atypically high danger the jury unfairly discounted his mental disorder defence because of that procedure.
89I would reject this submission on the facts of this case.
90There is no claim here of hearing unfairness. Nor, in my view, would such a claim be sustainable. The NCR hearing proceeded post-verdict at the explicit request of the defence. Although the trial judge expressed surprise at the defence timing in raising this defence, counsel’s submissions following the jury verdict confirmed that both sides had contemplated this initiative.
91Further, I see no procedural unfairness to the appellant arising from Dr. Klassen’s failure to interview the appellant after the appellant’s conviction and before testifying at the NCR hearing. The timing of the defence disclosure that it intended to raise the criminal responsibility issue was within the control of the defence. The defence elected to call Dr. Klassen knowing that he was away in Nunavut and was unable to testify until Monday, December 11, 2006 – four days after the original jury verdict. Following that verdict, the defence did not request an adjournment to permit Dr. Klassen an opportunity to meet with the appellant. Nor did it seek an NCR hearing by a judge alone. To the contrary, the record suggests that the defence was prepared to proceed with the NCR hearing, before the jury, on December 7, 2006. This is what occurred.
92In the event, the defence was permitted to call all its evidence, including that of Dr. Klassen, as part of a full NCR hearing. At no point did the defence raise with the trial judge any suggestion of hearing unfairness or prejudice to the appellant in relation to the NCR hearing.
93Finally, I am not prepared to assume, on this record, that the jury did not perform its assigned task impartially and in accordance with the law.
94Accordingly, I see no basis for appellate interference with the jury’s verdict on this ground. I turn now to the issue of the admissibility of the fresh evidence tendered on appeal.
(2) Admissibility of Fresh Evidence
95The test for the admission of fresh evidence on appeal is well-settled. The admissibility of Dr. Klassen’s 2015 report depends on three inquiries:
Is the fresh evidence admissible under the generally applicable rules of evidence in criminal proceedings?
Is the evidence sufficiently cogent to warrant its admission?
What is the explanation for the failure to tender the evidence at trial, and should that explanation affect the admissibility of the fresh evidence on appeal?
See R. v. Hartman, 2015 ONCA 498, 326 C.C.C. (3d) 263, at para. 18; R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 65–68; R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 80–102.
96More generally, evidence is admissible on appeal in a criminal case under s. 683(1) of the Criminal Code if its receipt is in the interests of justice: Hartman, at para. 18.
97As I have said, the Crown concedes that the fresh evidence satisfies the first admissibility inquiry. Accordingly, only the second and third inquiries are at issue. In that regard, the Crown submits that the fresh evidence fails to meet the second criteria – cogency – because it could not reasonably be expected to have affected the result at trial. The Crown further maintains that the third criteria – due diligence – is not met as the appellant has not offered a meaningful explanation for his failure to tender post-conviction, psychiatric assessment evidence at his NCR hearing.
98First, the cogency inquiry. In Hartman, this court explained, at para. 20, that this inquiry addresses three aspects of the evidence tendered as fresh evidence on appeal:
The proffered evidence must be relevant, in that it bears upon a potentially decisive issue at trial. The evidence must also be credible, in that it is reasonably capable of belief. Finally, the evidence must be sufficiently probative, in that it could reasonably be expected to have affected the result when taken with the other evidence adduced at trial and on appeal.
99In this case, the Crown does not dispute that Dr. Klassen’s 2015 report is relevant and, as opinion evidence from a qualified expert, that it is reasonably capable of belief. The Crown contends, however, that it falls short of the third cogency requirement, that is, it could not reasonably be expected to have affected the result at trial.
100It is important to emphasize with respect to this challenge that the appellant, who bears the burden under s. 16(3) of the Criminal Code to establish that he was suffering from a mental disorder so as to be exempt from criminal responsibility, does not have to persuade this court that Dr. Klassen’s fresh opinion should be accepted. Rather, the relevant test is whether the fresh evidence, if believed, when taken with the rest of the evidence, could reasonably lead the jury to conclude on the balance of probabilities that the appellant was NCR when he killed his mother. See R. v. Ross, 2009 ONCA 149, 246 O.A.C. 201, at para. 19; Hartman, at para. 37.
101The appellant argues that the fresh evidence satisfies this aspect of the cogency inquiry because it pertains to a post-conviction, psychiatric assessment of the appellant’s criminal responsibility and supplies, for the first time, the appellant’s account of his mother’s killing. In these important respects, the appellant says, the fresh evidence responds to and fills a gap in the factual foundation for Dr. Klassen’s criminal responsibility opinion. Thus, the fresh evidence, if believed and taken with the rest of the evidence at trial, could reasonably have affected the jury’s assessment of the appellant’s mental disorder defence.
102I see at least three difficulties with this argument. First, as detailed earlier in these reasons, Dr. Klassen placed no reliance on the appellant’s self-report of events, once supplied. To the contrary. Dr. Klassen regarded the appellant’s account as vague, essentially incoherent regarding the appellant’s mental health at the time of the murder, highly improbable, and “completely inconsistent with available forensic data”. Dr. Klassen therefore wholly disregarded the appellant’s account and re-assessed his criminal responsibility based on other available information.
103As a result, the fresh evidence does not meaningfully fill a gap in the factual foundation for Dr. Klassen’s opinion that was before the jury in 2006. At the time of the NCR hearing, the jury had no evidence regarding the appellant’s version of events regarding the killing. And, for the reasons outlined by Dr. Klassen, there is still no reliable narrative of events from the appellant and his account did not figure in the formulation of Dr. Klassen’s opinion.
104Second, and importantly, the appellant’s statements to Dr. Klassen at his February 2014 interview, as outlined in Dr. Klassen’s 2015 report, do not entirely support the appellant’s NCR defence. Indeed, in some respects, they significantly undercut it.
105According to Dr. Klassen, the appellant told him that he and his mother got into a heated argument about money, that she slapped him, and that she waved a knife at him. This account, the only account of the murder available from the appellant, offers some support for a non-psychotic alternative motivation for murder. This potential non-psychotic motivation is inconsistent with Dr. Klassen’s original opinion that there was “no compelling alternative [i.e. non-psychotic] motivation for the murder”. Recall also that the appellant told Dr. Klassen that he had not furnished his version of events earlier because “of course you never want to go into jail.” Given this evidence, it would be open for the jury to reject the appellant’s contention that he did not appreciate the nature and quality of his act, or know that it was wrong.
106Third, Dr. Klassen expresses no more certainty in his 2015 report regarding the appellant’s criminal responsibility than in his 2006 report. This is not surprising given that Dr. Klassen concluded that he could not rely on the appellant’s account of the murder. But the fact remains that just as the jury was entitled to disagree with Dr. Klassen’s equivocal opinion at the NCR hearing in 2006, so too would it be entitled to disagree with the equivocal opinion expressed in his 2015 report.
107These concerns with Dr. Klassen’s 2015 report, viewed as a whole, persuade me that the fresh evidence could not reasonably be expected to have affected the result at trial.
108Given this conclusion, it is not strictly necessary to address the due diligence inquiry for the receipt of fresh evidence on appeal. However, for the sake of completeness, I would add that I am also of the view that the appellant has not offered a meaningful explanation for his failure to tender post-conviction, psychiatric assessment evidence at his NCR hearing. I say this for two reasons.
109First, as outlined above, the defence chose to proceed with the NCR hearing immediately after the jury’s initial verdict, knowing that Dr. Klassen was in Nunavut and would be unable to re-assess or re-interview the appellant prior to testifying. The defence did not seek an adjournment and was content to proceed knowing that Dr. Klassen did not have the benefit of an account of the murder from the appellant.
110Second, while the lack of due diligence may not be determinative on its own, the fresh evidence is not sufficiently compelling to justify its admission. As stated by Doherty J.A. in R. v Maciel, 2007 ONCA 196, 265 C.C.C. (3d) 201, at para. 50, when the fresh evidence could have been led at trial, “some added degree of cogency is necessary before the admission of the evidence on appeal can be said to be in the interests of justice.”
111There is no added degree of cogency in this case. Dr. Klassen’s 2015 report offers nothing reliable that is substantially new to the evidence that was before the jury at the appellant’s NCR hearing. The failure to offer a meaningful explanation for not tendering post-conviction, psychiatric assessment evidence at the NCR hearing, coupled with the fresh evidence’s lack of cogency, compels me to conclude that the evidence is not admissible.
V. Disposition
112For the reasons given, I would deny leave to admit the fresh evidence and dismiss the appeal.
Released:
“FEB 18 2016” “E.A. Cronk J.A.”
“EAC” “I agree G.J. Epstein J.A.”
“I agree David Brown J.A.”
