Court File and Parties

Court of Appeal for Ontario Date: 20220617 Docket: C68374

Simmons, Pepall and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Trae Worrie Appellant

Counsel: Delmar Doucette and Angela Ruffo, for the appellant Dena Bonnet, for the respondent

Heard: December 6-7, 2021

On appeal from the conviction entered on June 11, 2019 by Justice Kofi N. Barnes of the Superior Court of Justice. [1]

Pepall J.A.:

A. Introduction

1This appeal involves the familiar intersection of mental illness and the criminal justice system. The appellant, Trae Worrie, was convicted of second-degree murder and attempted murder. On April 16, 2015, he stabbed both his grandfather who died and his grandmother who did not. At the time, he had just turned 20.

2At trial, the appellant’s defence was that he suffered from a psychotic mental illness and was not criminally responsible on account of mental disorder (“NCR”) within the meaning of s. 16 of the Criminal Code, R.S.C. 1985, c. C-46. Two forensic psychiatrists, one of whom was court-appointed, opined that he was NCR due to mental disorder. There was no medical evidence to the contrary.

3In July 2018, following a 14-day trial before a judge and jury, the trial judge declared a mistrial because the jury could not reach a verdict. The appellant was then tried before the same judge, sitting alone, based on the evidence heard by the jury. The trial judge found that the appellant suffered from a mental disorder at the time of the offences, namely schizophrenia and/or schizoaffective disorder. However, he rejected the NCR defence and convicted the appellant on June 11, 2019. On January 28, 2020, the appellant was sentenced to life in prison, with no eligibility for parole for 10 years, plus 10 years in prison concurrent to his life sentence, less pre-sentence credit.

4The appellant appeals from his conviction. For the reasons that follow, I would allow the appeal.

B. Facts

The Appellant’s Family

5Trae, [2] his parents, and his sister had gone to live with his grandparents, Sam and Juanita Campbell, in their home in Mississauga two years prior to the offences. Trae and his grandparents’ rooms were upstairs, and the others slept in the finished apartment downstairs. At trial, Trae’s grandmother described him as having a good relationship with her and her husband prior to the incident.

6His mother, Judy Worrie, described Trae as an intelligent, playful and pleasant young man until Grade 10 when he began using marihuana. She testified that he became isolated and would cover the windows and keep the room dark. She later noticed further changes in his behaviour: he would sit around staring and looking dazed and sometimes would go to the bathroom laughing to himself and twisting his body. His father, Elsworth Worrie, also testified that Trae was a loving and very respectful child until about age 16 when he started using marihuana.

Marihuana Usage

7Like Judy and Elsworth, Trae’s friends also testified about his marihuana use. For example, Harsh Pal met Trae in Grade 3 or 4. Harsh described Trae as his best friend. He testified that initially Trae was opposed to smoking marihuana but by Grade 10, he was smoking every day.

8Similarly, Aman Nitan Sharma (“Nitan”) had known Trae since Grade 3. Nitan testified that he and Trae were smoking marihuana by age 15 or 16 but that Trae did not use any other drugs. Whenever they were together, they would smoke and were always high.

College

9In September 2014, approximately six months before the offences, Trae started college in Niagara-on-the-Lake (“Niagara”). His mother testified that she had been close to him and spoke with him almost every day but noticed that with time, contact became more infrequent and when they did speak, his responses were short. In the fall of 2014, Elsworth noticed that Trae was smiling a lot to himself. He would look at himself in the mirror as if he was looking for something in his eyes. According to Elsworth, at home, Trae was good to the family.

10Nitan stated that, when Trae came back from college, he was no longer outgoing. In October 2014, Trae and Nitan went to an Ab-Soul concert. At the concert, Trae was quiet, seemed sad, and was crying. On their way home by bus and train, Trae became euphoric and energetic, jumping up and down. They went to a friend’s house and Nitan discovered him outside without shoes. Trae told Nitan that he was happy because he was communicating telepathically with Ab-Soul during the concert. The trial judge referred to this as a psychotic delusional episode.

11Elsworth testified that when Trae came home in December 2014, he and Judy knew something was wrong. Trae had failed his courses but did not tell his parents at first. Nonetheless, Trae decided to go back to college in Niagara.

12On February 9, 2015, Trae posted comments on the Reddit website under the handle “ztrae” describing himself as being raped by the government and connected to a little girl in a wheelchair and various men who injected drugs and needles into his skin and raped him in his sleep. He also stated that his computer and camera were being tapped.

13On February 17, 2015, Trae visited his family physician, Dr. Shiraz Shariff, whom he saw for five to ten minutes. Trae was complaining of a two-day old cough and told him he smoked marihuana. Dr. Shariff recommended he stop and referred him to marihuana addiction treatment services.

February 21, 2015 Incident

14On February 20, 2015, a surprise 20th birthday party was organized for Trae. Judy testified that she had arranged for Harsh and Nitan to pick Trae up from Niagara, but they were three hours late. Harsh testified that Trae’s apartment smelt of marihuana. At the party, Judy described him as looking surprised and happy to see her, but he had glossy eyes and “didn’t look like [her] son”. She stated that he was quiet during the party. Nitan testified that Trae drank heavily at the party but gave a speech that appeared normal.

15The next day, Juanita asked Trae how the party was to which he responded, “[W]hat kind of party, what kind of party you’re asking me about?” Juanita testified that Trae was sliding up and down the banister. Trae was loud, swearing and angry. She called Elsworth upstairs and he asked Trae what was wrong with him. Trae responded that nothing was wrong with him and all of them had a problem.

16According to Juanita, Trae and Elsworth had a little argument and Trae went up to Sam, gestured with a clenched fist and said “I’m [going to] box you”. He was yelling and swearing and continued to slide up and down the banister. Juanita called Judy, who was at the dentist, and told her Trae was acting out and she needed to come home immediately. When Judy arrived home, Trae looked dazed and his eyes were glossy and darkish. She testified that she touched his face and all of a sudden, he hit her in the jaw with an open fist. She fell to the ground and he went on top of her. He was saying, “Judy, who the hell is Judy?” Elsworth testified that Trae was punching Judy. He removed Trae from on top of her and Trae then hit him in the head, saying, “Aunty Annie, tell this guy to get off me”, referring to his aunt who had arrived at their home at Juanita’s request.

17According to Juanita, Sam said they should call the police. Judy then called 911. When the police arrived, Trae was outside in the snow without a coat or shoes putting snow all over his body. Juanita recalled telling the police that Trae was running everywhere like a madman.

Attendance at Hospital

18The police took Trae to Credit Valley Hospital. Triage nurses recorded that he was exhibiting some bizarre and abnormal behaviour. Kate Whiting, a social worker at the hospital, stated that he did not appear delusional and that he denied hearing voices, hallucinating, or being paranoid. That said, he had a vacant facial expression and was nervous and on edge. He told her he was sometimes depressed, his mood went up and down, and sometimes he wanted to take his own life but had no plans to do so. He denied having a substance abuse problem or mental health issues and did not see the need to be in hospital. Ms. Whiting stated that he had poor insight into his addiction and mental health issues. She believed Trae was thought blocking, meaning that he was hearing voices but did not want her to know. She recommended a Form 1 be issued. She explained that such a Form is used when a person is determined to be a risk to themselves or others and allows that person to be held in hospital for 72 hours for treatment.

19Dr. Nabil Philips, a psychiatrist, assessed Trae on February 21, 2015 at the request of the emergency room physician. Dr. Philips noted that Trae appeared to be somewhat vague and a “poor historian”. He also appeared to respond to some internal signals and possibly auditory hallucinations. His parents reported to Dr. Philips that there had been a gradual deterioration in Trae’s level of functioning over the course of the preceding few months and he had started to superficially slash or cut his forearms, self-isolate and act in a bizarre manner. Dr. Philips found that he seemed to be paranoid upon questioning, his eyes wandered, and his thoughts were tangential. His insight and judgment appeared to be impaired.

20On mental status examination by Dr. Philips, he appeared alert and oriented in all spheres. His affect was blunt and blurred. His mood appeared guarded and paranoid. His speech was nonspontaneous.

21An Agreed Statement of Facts stated that “Dr. Philips made a provisional diagnosis of firstly, rule out drug-induced psychosis and secondly, rule out schizophrenia – chronic paranoid type. This is not a firm diagnosis, but rather, as the language suggests, is provisional and each are [sic] to be investigated to potentially rule out one or both. Dr. Philips ordered that [Trae] would be held in hospital on the Form 1.”

22Trae never provided consent and no further assessment occurred. Records over the three days of hospitalization noted that Trae appeared to be experiencing visual hallucinations and remained guarded and paranoid.

Departure from Hospital and Return to Niagara

23Harsh visited Trae in the hospital. Harsh testified that Trae was acting normal. Against the advice of the attending health care professionals, Trae left the hospital. Trae stayed with Harsh at his house on and off for two weeks and smoked with Harsh’s brother until one day, Trae’s behaviour “freaked out” his brother and Trae had to leave. Trae had no interest in seeing his family after his release from hospital and he and Nitan had an argument and a physical altercation over this issue.

24After Trae was released from hospital, Nitan realized that smoking marihuana was having a negative effect on Trae and he was zoning out more. Nitan told their friends that Trae should not smoke weed anymore.

25Trae eventually returned to his apartment in Niagara. Judy stated that he would not respond to her calls or texts.

Return Home

26Elsworth picked Trae up from Niagara on March 26, 2015 at Trae’s request. Trae apologized for the fighting incident and asked Elsworth if he could have his room back. He was told he had to sleep downstairs and refrain from smoking marihuana. According to Judy, Trae was to remain in the basement because they wanted to reconnect with him as a family. She said she explained to Trae that they wanted him downstairs with them because they did not want him to feel alone. She said that Sam asked if Trae could go back upstairs, but she refused. According to Judy, Trae said “okay” and was not angry. Juanita testified that when Trae came home, she and Sam did not want him upstairs with them; Sam was living in fear of him.

27Both Judy and Elsworth testified on Trae’s condition on returning home. She described him as looking sad, dazed and hungry. Judy would observe him in the basement smiling to himself, staring constantly, and washing his clothes sometimes when they were clean. He was always looking over his shoulder. He would smell food and throw it into the garbage. He would make 45-minute trips to the washroom and throw out toiletries even if they were new. He would use pillows to close the windows. He seemed paranoid to Judy and did not want to go anywhere or do anything. Judy did not know whether he smoked when she was at work. Elsworth reported that Trae would black out all the windows when he was in the basement by himself. He would keep to himself and stay locked up in the dark.

28When Trae returned from college, Harsh also noticed abnormal behaviour. He would chuckle to himself for no reason and was withdrawn and overly polite when he came over to visit – an unusual characteristic for Trae. Trae insisted to Harsh that he was fine but eventually Harsh thought he was suffering from schizophrenia. The Sunday before the incident, Harsh played basketball with Trae, who was quiet during the game and not talking to anyone.

Attendance with Dr. Shariff

29On April 10, 2015, Trae saw Dr. Shariff again. He had concerns about crabs and also told him that he was stressed out because he left school early and was depressed. He sought a prescription for medical marihuana which Dr. Shariff refused. Dr. Shariff examined Trae for 30 minutes and described him as pleasant, cooperative and appropriately dressed. According to Dr. Shariff, Trae acted his age, had good eye contact, and was able to care for himself, but his mood was sad and his affect was flat. Dr. Shariff said that Trae reported having no delusions, hallucinations, suicidal ideations or thoughts of wanting to kill other people. Dr. Shariff prescribed Risperdal for depression but did not refer him to a psychiatrist. He acknowledged that this drug is also prescribed to people with psychotic episodes. He stated that although the Credit Valley Hospital report was dated March 16, 2015, he did not receive it until May 13, 2015. Had he received it earlier, he would have made further inquiries given that Trae had been placed on a Form 1 in that report.

The Offences

30Juanita testified that on the Tuesday before the offences, she and Sam were watching TV and Trae walked by. Juanita testified that Sam saw Trae with a knife and asked him why he had it. Trae ran downstairs. Later that day, he asked his grandparents not to tell his parents about this incident. They did not.

31On April 16, 2015, at midday, Juanita and Sam were at home, Juanita in the kitchen and Sam in his office. Sam called Juanita and she went to see him. He was unresponsive. As she bent down to tend to him, Trae approached with a wheelchair and threw it at Sam. Juanita asked Trae “what the hell [he was] doing” and he grabbed the side of her neck and dragged her. She wrestled with him in an effort to get to the front door. She kept telling Trae everything was going to be okay. Each time she spoke, he would stab her. He stabbed her 12 times. She managed to get outside and yelled “Oh, God, help, my grandson is killing me and the grandfather.” Trae did not speak to her during his attack. He subsequently dropped the knife into the kitchen sink with other dishes.

Observations of Neighbours and Others in the Vicinity

32Ryan Buchanan lived on the same street as the Campbells and the Worries. On April 16, 2015, he returned home at about 1:00 p.m. after picking up some lunch. He noticed Juanita across the street screaming for help and walking towards him. He also saw someone with no shirt and light jeans or pants with visible underwear, running between houses down the street. The man had a white cloth or T-shirt in his hand. Ryan Buchanan called 911.

33Giuseppe Marc-Antonio was driving his truck nearby when he saw a shirtless black male running quickly across the front lawns of houses. Mr. Marc-Antonio travelled slowly in order to observe him. He said the male suddenly made a quick right turn between two houses and seemed to be hiding, but Mr. Marc-Antonio could not be sure. Mr. Marc-Antonio noticed the person trying to hide against a garage. He said the male was wearing red pants. The male continued to run eastbound until Mr. Marc-Antonio lost sight of him.

34Rana Cassar also saw a man with his hands in his pockets of red pyjama pants, running very fast, and not stopping to look out for traffic.

35Lilowtie Ramdeo said that at about 1:50 p.m., she saw a man wearing no shirt, sitting and “washing” his hands in a drain area consisting of leaves and mud but no water. He was not walking on the sidewalk but along fences close to houses.

36Matteo Gentili saw a man at the back of his home walking between his and his neighbour’s houses. He saw the man lying on the sidewalk shortly thereafter, though he was not sure it was the same person. The police picked the man up and put him in the police car.

Attendance by Police and Paramedics

37Police and paramedics attended at the scene. Constable Melanie Walter, a Peel Regional Police officer, arrived at the Campbells’ house at approximately 1:04 p.m. Sam was dead. He had been stabbed repeatedly, including three fatal wounds that penetrated his jugular vein, heart, and right lung and aorta. Juanita was rushed to the hospital with multiple serious stab wounds.

38Officer Joe Cardi located Trae at about 2:05 p.m. He told Trae he was under arrest for murder and instructed him to lie down, face first, and put his hands behind his back, which he did. Officer Cardi conducted a pat down search and found a cell phone, a charger, a wallet and $4.50 in Trae’s pocket. Officer Cardi told him he had the right to instruct counsel without delay. Trae responded that his uncle was a lawyer and he wanted to call him. The officer then asked him if he wanted to say anything in answer to the charge; advised him he was not obliged to say anything, but whatever he said would be given in evidence; and asked him if he understood. Trae said he understood and “just wants to say he is telepathic and can send his thoughts to other people”.

39Officer Cardi took Trae to 11 Division and they had a brief conversation en route. Trae told him he could put thoughts in Officer Cardi’s head. He advised Officer Cardi that he had put a barbecue hot dog in Officer Cardi’s head and one day they would have a hot dog and a drink together. Officer Cardi testified that he felt Trae understood what was being said to him and he obeyed all his commands. Other than the comment about telepathy and the fact that he was shirtless, he did not notice anything unusual about Trae.

40A review of Trae’s cell phone revealed text messages and outgoing calls to Nitan, Harsh and others, including a text message to Harsh asking if he had his car on him and a call to Brock Taxi, which had a St. Catharines address.

41The police located a white T-shirt, which appeared to be soaked with blood, in front of a van parked in the driveway of a house five houses to the left of the Campbells’ house.

Detention at Maplehurst Correctional Institute

42Trae attended at Maplehurst Correctional Institute the next day: April 17, 2015. Carmen Ackerman, a registered nurse at the Institute, testified that she saw him on April 17, 2015. He denied having hallucinations and said he did not hear voices. He maintained good eye contact and would look away and smile to himself. She put him on a high-risk suicide watch based on the nature of his charges and also referred him to a psychiatrist.

43Dr. Voruganti, a psychiatrist, saw Trae on April 20, 2015, three days after his admission to Maplehurst. Trae reported a history of cannabis abuse. It was noted that he spoke very fast, was overly polite, and at times smiled inappropriately. An incipient psychosis was questioned.

44On April 21, 2015, Dr. Glancy, another psychiatrist, assessed Trae for a brief suicide assessment. No clear psychosis was identified and his diagnosis was unclear. He saw him again three days later. Trae was vague and told him, “I spoke to God.” He refused medication.

45On May 12, 2015, Trae saw Dr. Rehaluk, a psychiatrist. No auditory hallucinations or paranoid thoughts were noted. He diagnosed Trae with an adjustment disorder and ruled out depression. He prescribed anti-depressants and anti-anxiety medication.

46On May 21, 2015, Trae was transferred to Waypoint Centre for Mental Health for a comprehensive court-ordered assessment.

Forensic Psychiatrists and Psychologist

47Two forensic psychiatrists testified at Trae’s trial: Dr. Julian Gojer, who has practised since 1989 and was retained by Trae; and Dr. William Komer, who has practised since 1990 and led Trae’s court-ordered assessment. A psychologist, Dr. Michelle Green, who obtained her Ph.D. in psychology in 2011 and assisted Dr. Komer in his evaluation, also testified.

Dr. Gojer

48Trae had retained Dr. Gojer to provide his opinion on whether Trae was mentally ill. Dr. Gojer saw Trae on April 29, 2015, while he was in custody. He strongly suspected that Trae was experiencing auditory hallucinations and was floridly psychotic. He also prepared another assessment after the trial started.

49Dr. Gojer reported that when he first met Trae, Trae stated he was telepathically gifted and that God had commanded him to kill his grandfather, his grandmother and his parents because it was “their time to go”. Trae said he did not feel bad; he just felt relief. He reported his belief that people were poisoning him and that he was a telepath and part of an incubator through which he could speak to Prime Minister Harper and President Obama and would hear “clicking” in his body. He stated that he had to kill to get out of the incubator. He related that he was told Canada could not have a telepath and therefore he had to move to Russia or the United States. He had to kill a friend called Tajinder, whom Prime Minister Harper knew, to be released from the incubator. His perceptual abnormalities and behaviour remained the same after Dr. Gojer’s more recent assessment.

50In brief, Dr. Gojer ruled out the possibility of malingering based on the observations of Trae’s family and friends in the period leading to the offences, those of the hospital staff in February 2015, and his own. He said the inconsistencies in Trae’s explanations are not part of faking; they are part of the illness itself. He concluded that Trae suffered from schizophrenia at the time he committed the offences. He knew that killing a human being was not in keeping with the law, but believed he was following God’s instructions and was unaware that what he was doing was morally wrong according to the standards of society. Dr. Gojer opined that Trae could appreciate the nature and quality of his actions – that is, if he took the knife and stabbed his grandfather, his grandfather would die – but he could not exercise rational choice at the time of the stabbing. He concluded that Trae was NCR.

51In cross-examination, among other things, Dr. Gojer estimated that defence counsel had retained him 70% of the time over the course of his career, and more than 90% of the time in the last 10 years. He also acknowledged that his notes were a regurgitation of what Trae had told him.

52He explained Trae’s after-the-fact (or post-offence) conduct as reflecting rational decisions over a period when he was acutely psychotic. That conduct also indicated that Trae knew he had done something legally wrong. What he told Officer Cardi was consistent with his mental illness.

53As recommended by Dr. Green, Dr. Gojer interviewed collateral sources, including Trae’s family and friends, and reviewed progress notes and medical records. He noted that Trae would have had to have planned malingering several months before the killing and fooled his parents, friends and several clinical staff. In Dr. Gojer’s opinion, there were too many psychotic footprints for Trae to be feigning or malingering. Moreover, Trae had never admitted that he had a mental illness, another reason why it was very unlikely that he was malingering. In Dr. Gojer’s opinion, at the time Trae committed the offences, he was incapable of knowing the wrongfulness of his actions.

Dr. Komer

54Dr. Komer conducted a court-ordered assessment of Trae’s degree of criminal responsibility. In other words, unlike Dr. Gojer, he was not retained by the defence nor by the Crown. He testified that the whole purpose of his assessment was to reflect back on what was in Trae’s mind when he committed the offences. He saw Trae on his admission to Waypoint on May 21, 2015. Dr. Komer interviewed Trae 19 times from May to September 2015. In conducting his assessments, he reviewed the Crown brief, police interviews, a psychosocial assessment by a social worker, an intake and spiritual assessment, Dr. Green’s psychological assessment, blood tests, records from various doctors and information provided by Trae’s parents. Like Dr. Gojer, his expert opinion was that Trae suffered from a major mental illness and was NCR.

55On admission, as described at para. 111 of the revised reasons of the trial judge, Dr. Komer reported:

Mr. Worrie said that Jesus had to do with his case. He said he had to kill his family including his grandparents and go to a different place and kill. He said Jesus told him to go forth and do it and kill his grandparents to escape the incubator. He spoke of his offence involving a merciful killing. While speaking of this, he said he apologized to Jesus telepathically, and stated [that I got in quotations] "he can hear me" [end of quotations.] He said he wanted to apologize to Jesus because it sounds terrible about Jesus telling him to kill his grandparents. He said he prayed to Jesus for freedom from the incubator and then Jesus told him to kill his grandparents and family. He said Jesus told him this, [quote] "spiritually" [end of quotes] and he hears Jesus like hearing the incubator. He spoke of Jesus' voice being projected in his head. He then smiled again and said that Jesus talked to him and told him to apologize for speaking about him. I questioned Mr. Worrie if he felt his actions were good or bad. He said he wanted freedom from the incubator which talked to him on a daily basis. He said the government, family and friends could be heard through the incubator. He stated [and this is a quote] "I thought it was something good" [end of quote] because Jesus gave him approval to do it. He said at the time he did not think about being charged. He said he hopes to be acquitted, have his charges cleared and be set free. Mr. Worrie said that Jesus told him to go forth. He also said the government told him to kill his family through the incubator. He said he needed to listen in order to be free from the incubator.

56Dr. Komer considered Dr. Green’s concerns about malingering. Like Dr. Gojer and Dr. Green, Dr. Komer was of the opinion that Trae was not malingering or trying to feign or fake a mental illness for secondary gain. The trial judge summed up Dr. Komer’s assessment of this issue at para. 113 of his revised reasons:

Dr. Komer said there is evidence that Trae Worrie was not malingering. Dr. Komer pointed to the following: months before the incident Trae was observed behaving abnormally by family and friends; he was taken to a hospital and committed for treatment on a Form 1 under the Ontario Mental Health Act; he saw his family physician who prescribed anti-psychotic medication; that there is a history of abnormal behaviour documented by family and friends; Trae’s parents were sleeping outside his bedroom at night because they were concerned about him; his family had been trying to get help him for his problem; he had a good relationship with his grandfather and no reason to want to kill his grandfather; that it requires a great deal of sophistication to concoct all of the symptoms prior to the incident; that Trae did not agree he had a mental illness; that Trae said he did not need or want treatment; that Trae does not understand that he has a mental illness; that he did not tell Dr. Komer that he had a mental illness; that he said he did not have hallucinations; that he did not try to portray that he was hearing voices; when he was admitted to Maplehurst, he said he did not have a psychiatric history; he said he did not have a mental illness; family, friends, and medical professionals who have observed him say he has a mental illness; hospital staff noted that sometimes he would talk and laugh at himself; Dr. Komer said the odds of Trae Worrie malingering is astronomically low. [Emphasis added.]

57Dr. Komer testified that Trae was fit for trial but was still reporting that he was under the influence of the incubator. He diagnosed Trae with schizoaffective disorder: a major mental illness in which individuals experience psychotic symptoms, hallucinations, delusions, and disorganized thinking. This diagnosis did not mean that an individual cannot form the intent to commit a crime.

58Dr. Komer stated that, in Trae’s own mind, he thinks others would accept what he had done. Dr. Komer reported that Trae repeatedly stated that God, Jesus, President Obama, and Prime Minister Harper all told him he was going to be acquitted. He was getting direction from voices telling him to do what he did and he did not believe what he did was wrong. He told Dr. Komer that the incubator and being a telepath were different things: “the incubator is ‘being wired to the government’ of Canada and the U.S. and being a telepath is through Jesus.” Trae told Dr. Komer that he was telepathic and that “when he eats everyone in the world feels it and tastes it…. He said that if he eats cereal and wants everyone to taste it, he can broadcast it and they can taste it.” In Dr. Komer’s view, Nitan’s evidence that Trae related to him that he was communicating telepathically at the Ab-Soul concert in October 2014 allayed concerns of the sudden onset of hallucinations. In addition, Trae’s Reddit post of February 9, 2015 suggested the psychosis was present in February.

59Dr. Komer opined that at the time Trae committed the offences, his mental illness affected his knowledge of the wrongfulness of his actions; it affected his ability to perceive things rationally and make a rational choice about the wrongfulness of his actions. He was incapable of knowing that his actions were wrong according to the moral standards of society.

60In describing Trae’s after-the-fact conduct, Dr. Komer testified that Trae thought the police would be after him for what he did and that he would probably be apprehended, but that the police would let him go when he explained that God told him to do this and God speaks through him. Dr. Komer was unaware that Trae did not tell Officer Cardi about God’s instructions, but rather told him he was a telepath. Dr. Komer speculated that Trae said nothing about God because he was not asked why he committed the offences. Moreover, Trae’s discussion with Officer Cardi about having a drink and a barbeque suggested “a relationship with the police officer that you wouldn’t normally have if someone has just committed a murder”.

61Dr. Komer also testified that Trae’s calls and texts and other after-the-fact conduct did not affect his opinion. As he stated in cross-examination, “whether he wanted to get away or not doesn’t say whether he didn’t lack the ability for rational perception and choice about whether he did something wrong.” Dr. Komer noted, for instance, that any desire by Trae to get a ride somewhere did not detract from all the other information that suggested he had a mental illness and did not think that what he had done was wrong. It was certainly possible that if he was evading the police, he knew the act was legally wrong, but Dr. Komer maintained his opinion that Trae did not have the ability to make a rational choice about the wrongfulness of his actions. Dr. Komer explained that one must look at the overall situation:

[T]here’s little doubt that this individual has a major mental illness, a well established illness, that he did not think he had an illness. He’s never, he’s never said that I’m ill… So he has not acknowledged that he has a mental illness. So the information suggests clearly that, that he does. And his explanation for his actions, killing his grandfather when he - the - this came as a shock to, to his family. No one, no one, as far as I know, would have thought that he would have done anything like this. There was no such relationship with him that he would do it. There’s no rational reason. And, and you look at his state of mind and his family trying to get him help and he’s having these experiences, which in my opinion affected his ability to make a rational decision about the wrongfulness of his actions.

Dr. Green

62Dr. Green, a psychologist who was part of Trae’s court-ordered assessment team and assisted Dr. Komer, testified on behalf of the Crown. She was qualified to give expert evidence in relation to the interpretation of forensic psychological tests and her clinical observations in that context. This was the first time she had testified as an expert at trial. She was not trained to conduct tests to determine whether someone suffered from schizophrenia.

63Dr. Green first met Trae on May 21, 2015 as part of the interview team led by Dr. Komer. She was to assess whether Trae was malingering. She was not retained nor qualified to give an expert opinion on whether he was NCR.

64Dr. Komer directed her to conduct tests and to look at over or under-reporting of symptoms.

65Dr. Green concluded that there was no evidence to support either a definitive or even a provisional diagnosis of malingering.

66Dr. Green described the tests that were conducted and the results including:

• the Wide Range Achievement Test (WRAT-R) Reading, which suggested Trae’s reading skills were high, at above a Grade 12.9 level;
• the Personality Assessment Inventory (“PAI”) and the Minnesota Multiphasic Personality Inventory (“MMPI”), which both generated invalid profiles;
• the Shipley Institute of Living Skills Scale-2 (“SILS-2”), which produced low but inexplicable results for crystallized intelligence and average results for fluid intelligence, the latter results not supporting a schizophrenia diagnosis;
• the Anger Disorder Scale, which generated results that were inconsistent with information Dr. Green had received of fights with Trae’s family;
• the Structured Inventory of Malingered Symptomology (“SIMS”), which tested for symptoms of malingering and suggested Trae should be screened for malingering; and
• the Miller Forensic Assessment of Symptoms Test (“MFAST”), which was a screening test for malingering which provided no evidence that Trae was malingering. In this regard, Dr. Green said that the inconsistency between his responses on the SIMS and the MFAST tests did not lead her to conclude that Trae was malingering.

67Dr. Green explained that these tests were not conducted for diagnostic purposes; the focus was to determine whether Trae was malingering.

68Dr. Green reported that Trae immediately told her he was telepathic. The trial judge noted that she said this was atypical for schizophrenic patients or someone experiencing psychosis; it was not unheard of, just outside the norm. Dr. Green further reported that Trae was able to give a coherent personal history, which she said was also unusual. According to Dr. Green, Trae also told her about being telepathic at the Ab-Soul concert and his concerns about the incubator. She said the test results suggested that Trae did not have a thought disorder and she would not describe him as floridly psychotic.

69Dr. Green testified that she informed Dr. Komer of her observations.

Summary of Expert Evidence

70In summary, Dr. Komer and Dr. Gojer were of the opinion that Trae was NCR due to mental illness. At the time Trae committed the offences, his mental illness affected his knowledge of the wrongfulness of his actions. It impacted his ability to perceive things rationally and to make a rational choice about the wrongfulness of his actions. He was incapable of knowing that his actions were wrong according to the moral standards of society. There was no expert evidence adduced that countered this opinion of both forensic psychiatrists.

71The expert evidence on whether Trae was malingering was similarly unanimous: the evidence did not support such a finding. Indeed, during the first trial, Crown counsel agreed that there was no conflict between the evidence given by Dr. Green and that given by Dr. Komer and Dr. Gojer.

The Hung Jury

72Trae was initially not fit to stand trial and was ordered by the court to begin a 60-day treatment regime. He continued to remain unfit after 60 days but eventually his first trial commenced before the trial judge and a jury. His defence was that he was NCR. After hearing 14 days of evidence and deliberating for approximately 35 hours over the course of four days, the jury was unable to reach a verdict. The trial judge declared a mistrial on July 10, 2018. Trae was then tried before the trial judge alone, based on the evidence from the first trial.

The Conviction and the Procedure Leading to Revised Reasons for Judgment

73On June 11, 2019, in a brief oral statement, the trial judge rejected Trae’s NCR defence and found him guilty of second-degree murder and attempted murder. On August 21, 2019, he released his reasons for judgment. The trial judge set November 12, 2019 for sentencing.

74On November 12, 2019, Trae was unable to attend due to poor road conditions and his sentencing did not proceed. However, on that day, defence counsel advised that he was bringing a mistrial application due to an alleged “irreparable defect” in the reasons. The trial judge indicated that he intended to make some typographical corrections to his reasons and thus declined to hear details about the application. On November 25, 2019, the trial judge summarily dismissed the application for a mistrial on the basis that it would be inappropriate at that stage of the proceedings to entertain the application. [3] On January 16, 2020, he released his revised reasons which contained much more than typographical corrections. I am relying on these revised reasons for the purposes of the appeal.

Revised Reasons for Judgment

75The trial judge first considered whether Trae was suffering from a mental disorder at the time of the stabbings. He was satisfied that it was more likely than not that Trae was not suffering from a drug-induced psychosis at the time of the offences. Instead, he found that Trae was suffering from a mental disorder at that time, namely schizophrenia and/or schizoaffective disorder.

76In considering the evidence, at para. 388 of his reasons the trial judge stated:

The statements Mr. Worrie made to the doctors Komer, Gojer and Green are hearsay, and inadmissible for the truth of their contents. However, the statements of Mr. Worrie to Dr. Komer, Dr. Gojer, Dr. Green, Nitan Sharma, Constable Cardi and others (which are of a preposterous nature) are admissible as original evidence of Mr. Worrie’s state of mind at the time he made those statements. These statements may also be used as circumstantial evidence regarding whether Mr. Worrie had a mental disorder at the time when he stabbed Sam and Juanita Campbell. [Emphasis in original.]

77The trial judge outlined the evidence that suggested the presence of a mental disorder at the time of Trae’s actions and evidence that detracted from such a finding. He included in the former category the preposterous statements Trae made to Dr. Komer and Dr. Gojer on instructions from the incubator, to Officer Cardi on being a telepath, and to Dr. Glancy on God speaking to him. The trial judge noted that these preposterous statements constituted original evidence of Trae’s state of mind when he made the statements. He summed up this evidence at para. 391:

Evidence suggesting the presence of a mental disorder at the time of [Trae’s] actions include:

a) [Trae’s] statements to Dr. Komer and Dr. Gojer that he heard voices and received instructions from the incubator. These preposterous statements constitute original evidence of [Trae’s] state of mind when he made the statements. [Trae’s] statement to Officer Cardi that he was a “telepath” is another preposterous statement, as was his statement to Dr. Glancy that “God speaks to him.”

b) Observations of clinical staff, [Trae’s] parents, Juanita Campbell, Nitan Sharma and Harsh Pal about abnormal behaviour exhibited by [Trae].

c) Absence of evidence of drug use prior to the stabbing.

d) Nitan Sharma’s account of [Trae’s] psychotic delusional episode at an Ab-Soul concert in October 2014.

e) Indications that Trae suffered from hallucinations at least as of February 9, 2015, when he made his Reddit post. The provisional diagnosis that [Trae] was possibly suffering from schizophrenia when he was hospitalized in February 2015.

f) The admitting nurse at Maplehurst Correctional Centre noted [Trae] was experiencing potential hallucinations.

g) [Trae’s] series of preposterous statements, which include: telling Constable Cardi that he was telepathic and that he spoke to God shortly after stabbing Mr. & Mrs. Campbell; telling Dr. Clancy [sic] that he spoke to God and telling Dr. Komer that he killed Mr. Campbell and attempted to kill Mrs. Campbell on the instructions of Jesus, God and/or the government (to Dr. Gojer he included Satan), in order to escape “the incubator”; that [Trae] claimed that the incubator was an entity through which he could speak to prominent people around the world, his family and others; and that the incubator also needled and assaulted him while he was sleeping. These statements are evidence that he was suffering from a mental illness at the time he made the statements.

78Having concluded that Trae suffered from schizophrenia and/or schizoaffective disorder at the time of the offences, the trial judge turned to the question of whether it rendered him incapable of appreciating the nature and quality of his actions.

79The defence conceded that, despite his mental disorder, Trae appreciated the nature and quality of his acts and knew they were legally wrong. However, the trial judge found that this element was established even without this concession.

80He then turned to whether Trae established that he was incapable of knowing that his acts were morally wrong. The trial judge was unpersuaded. In coming to his conclusion, the trial judge rejected Dr. Komer and Dr. Gojer’s opinions that Trae was NCR. Rather, he concluded that it was more likely than not that Trae was capable of appreciating that his conduct was wrong according to the moral standards of society at the time of the offences. He gave three reasons which, when considered singularly or cumulatively, led him to reject Dr. Komer and Dr. Gojer’s opinions and to conclude Trae was not NCR.

81First, he considered the statements made by Trae to family, friends, medical practitioners and experts, and their observations of him, but found these were not “particularly helpful in demonstrating that [Trae] was incapable of appreciating that his conduct was wrong according to the moral standards of society at the time of the offences.” The one exception was Trae’s self-reports to the experts about why he stabbed the victims, but the trial judge determined this was hearsay and afforded it very little weight.

82Second, the trial judge was influenced by Dr. Green’s testimony. He noted that she did not find that Trae was malingering or feigning symptoms, but she did identify several concerns. This included pressured speech that did not seem genuine but rehearsed; an invalid score on the PAI; average performance on crystallized and fluid intelligence tests, including scoring well on the block pattern and abstraction tests, which was unusual for people with a true psychotic disorder and did not support a schizophrenia diagnosis; personality test scores that showed he was contradicting himself on answers; and scores on the Anger Disorder Scale that were inconsistent with his family history. As I will subsequently address, the trial judge made this incorrect statement at para. 408 of his reasons:

Dr. Green opined from her test results that Mr. Worrie suffered from a personality disorder rather than schizophrenia. Dr. Green said that the test results suggest that Trae Worrie does not have a thought disorder. She brought her concerns to the attention of Dr. Komer.

83The trial judge further determined that Dr. Gojer “did not consider Dr Green’s concerns. He simply dismissed them.” For this and other reasons, he gave “little weight” to Dr. Gojer’s opinion.

84The trial judge accepted that Dr. Komer considered Dr. Green’s concerns, but he concluded that Dr. Komer gave them “insufficient consideration”, particularly when considered in the context of Dr. Komer’s conclusions on Trae’s post-offence conduct.

85Third, the trial judge was also of the view that Dr. Komer and Dr. Gojer gave insufficient consideration to Trae’s after-the-fact conduct. The trial judge stated that they allowed their analyses to be overtaken by their conclusion that, at the time of the offences, Trae was more likely than not suffering from a mental disorder. In the trial judge’s view, Trae’s after-the-fact conduct demonstrated that he knew his conduct was morally wrong. For example, his flight and active efforts to conceal evidence were inconsistent with his statement that God instructed him to do the stabbings and the police would let him go once he explained God’s instructions. Dr. Komer and Dr. Gojer’s failure to more fully articulate why Trae’s after-the-fact conduct was not an important factor for assessing whether he appreciated his actions were wrong led the trial judge to place little weight on that part of their opinions.

86The trial judge briefly identified two further considerations that led him to reject Dr. Komer and Dr. Gojer’s opinions that Trae was not capable of appreciating that his conduct was wrong. First, Dr. Komer did not easily concede that Trae’s efforts to call his friends or a cab after he committed the offences amounted to efforts to flee the scene. Second, Dr. Gojer was reluctant to concede that Trae had only received a provisional diagnosis of schizophrenia.

87As a result, the trial judge concluded that Dr. Komer’s and Dr. Gojer’s opinions should be given little weight. Their opinions were the product of both hearsay and non-hearsay evidence and rested on a foundation of hearsay evidence that was incongruent with Trae’s after-the-fact offence conduct. In the trial judge’s view, “[t]he only reasonable inference that can be drawn from all of Trae’s post[-]offence conduct is that d[e]spite suffering from a mental disorder Trae had the capacity to rationally decide that the act of stabbing his grandparents was morally wrong according to the accepted standards of society”.

88The trial judge accordingly rejected Trae’s defence. He found that Trae had failed to discharge his burden of establishing that his mental disorder rendered him incapable of knowing that his conduct was morally wrong according to the accepted standards of society.

C. Grounds of Appeal

89On appeal, Trae submits that the trial judge made specific reversible errors, rendered a verdict that was contrary to the uncontroverted psychiatric evidence, and unreasonably rejected his NCR defence, thus resulting in a miscarriage of justice.

90In his factum, Trae initially took the position that the trial judge’s reasons had lost their presumption of integrity. Counsel argued that key changes were made to his factual findings after the verdict and the changes were an after-the-fact justification for the verdict reached. However, in oral argument, counsel reframed this ground of appeal and subsumed his attack on the integrity of the reasons within a more generalized submission that the verdict was unreasonable.

91In addition to that submission, Trae argues that the trial judge committed three specific errors which, when taken individually or cumulatively, led him to erroneously dismiss his NCR defence. These three errors track the trial judge’s three main reasons for rejecting Dr. Komer and Dr. Gojer’s opinions and concluding it was more likely than not that Trae was capable of appreciating that his conduct was wrong according to the moral standards of society at the time of the offences. First, the trial judge misapprehended the evidence of Dr. Green; second, the trial judge misused Trae’s after-the-fact conduct; and third, the trial judge misunderstood and misapplied the rules regarding the use that could be made of Trae’s statements to support the NCR opinions given by Dr. Komer and Dr. Gojer.

D. Analysis

92I will start with an overview of the principles relevant to this appeal governing the NCR defence. Then I will address the three grounds of appeal relating to Trae’s NCR defence. In addressing those grounds of appeal, I will first consider the ground concerning the misapprehension of Dr. Green’s evidence. I will then consider the grounds relating to Trae’s after-the-fact conduct and the use of Trae’s statements to support Dr. Komer and Dr. Gojer’s NCR opinions. In light of my conclusion on those grounds, I see no need to address the issue of the integrity of the reasons.

Principles Governing the NCR Defence

93Section 16(1) of the Criminal Code provides that no person is criminally responsible for an act committed or 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” (emphasis added). “Wrong” in this context means not only “legally” wrong, but “morally” wrong: R. v. Pietrangelo, 2008 ONCA 449, 233 C.C.C. (3d) 338, at para. 55, leave to appeal refused, [2008] S.C.C.A. No. 309; R. v. Campione, 2015 ONCA 67, 321 C.C.C. (3d) 63, at paras. 28-31. As Lamer C.J. explained in R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1354-55, a person may know that an act is contrary to the law, but be incapable of knowing that the act is morally wrong according to the moral standards of society:

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. 678). [Emphasis added.]

94In R. v. Oommen, [1994] 2 S.C.R. 507, at p. 518, the Supreme Court explained that “[t]he 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 morally wrong inquiry requires the court to determine whether an accused “was incapable of understanding that [their] acts were wrong according to the ordinary moral standards of reasonable members of the community”: R. v. Woodward, 2009 ONCA 911, at para. 5 (emphasis in original).

95As Blair J.A. stated in Campione, at para. 31, moral wrongfulness as contemplated in s. 16 is a slippery concept to apply. In R. v. Dobson, 2018 ONCA 589, 48 C.R. (7th) 410, leave to appeal refused, [2019] S.C.C.A. No. 70, Doherty J.A. described the risk at para. 24:

Oommen, as interpreted in the judgments of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.

96Under ss. 16(2) and (3) of the Criminal Code, every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility, unless the contrary is proven on a balance of probabilities by the party raising the issue.

97Although expert evidence is not always required (see R. v. Quenneville, 2010 ONCA 223, 207 C.R.R. (2d) 360, at para. 28, leave to appeal refused, [2010] S.C.C.A. No. 409), “[a] proper understanding and weighing of expert opinion often plays a central role in the determination of whether or not an accused should be found not guilty by reason of mental disorder”: R. v. Molodowic, 2000 SCC 16, [2000] 1 S.C.R. 420, at para. 10.

98In Molodowic, the Supreme Court explained that, in deciding whether or not an accused appreciated that their actions were morally wrong, the trier of fact “is not ‘bound by the expert psychiatric testimony and ... its probative value [is] to be assessed in the same manner as any other testimony’”: at para. 7, citing R. v. Ratti, [1991] 1 S.C.R. 68, at p. 81. Arbour J., writing for the court, confirmed that the trier of fact may “reject the opinion of experts, even when the experts called are unanimous and uncontradicted by other experts”, but underscored that “there has to be a rational foundation” in the evidence to do so: Molodowic, at para. 8. As she further explained, at para. 10, it may be unreasonable in some circumstances to disregard expert evidence that an accused was unable to appreciate that their actions were morally wrong:

The absence of a Crown rebuttal expert to contradict an accused’s psychiatric evidence is not in itself sufficient to conclude that a verdict of guilty was unreasonable if that conclusion remained reasonably open to the jury on the totality of the evidence. However, it may be unreasonable for a jury to disregard the expert evidence put before it, particularly where all the experts called were in agreement with each other, when their evidence was “uncontradicted and not seriously challenged” (R. v. Kelly (1971), 6 C.C.C. (2d) 186 (Ont. C.A.), at p. 186), and when there was nothing in the “conduct of the commission of the crime which would raise any serious question as to the validity of the psychiatrists’ conclusion” (Kelly, at p. 186).

99In Molodowic, the Supreme Court allowed an appeal from a judgment of the Manitoba Court of Appeal upholding a conviction of second-degree murder in a trial before a judge and jury. In substituting an NCR verdict, Arbour J. explained that both psychiatrists who evaluated the accused and testified at his trial concluded that it was highly unlikely that the accused had the moral insight to appreciate that his actions were wrong when he committed the offence: Molodowic, at paras. 16-17. While the Crown challenged the psychiatrists’ evidence on cross-examination, the doctors did not depart from their conclusion that the accused lacked the moral appreciation to trigger his criminal responsibility: Molodowic, at para. 19. The Crown did not call a rebuttal expert and the psychiatrists’ opinions were consistent with the accused’s statements and conduct surrounding the commission of the offence: Molodowic, at paras. 18, 22. The Supreme Court accordingly entered a verdict of NCR.

100In R. v. Richmond, 2016 ONCA 134, 334 C.C.C. (3d) 315, at para. 58, Cronk J.A. explained that Molodowic instructs that there must be a rational basis for rejecting expert opinion evidence that an accused is NCR:

Molodowic 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), 126 Man. R. (2d) 241, at p. 252.

101Although Molodowic and Richmond involve jury decisions, I see no reason to apply a different threshold for appellate intervention where a trial judge, rather than a jury, has rejected an NCR defence.

102To sum up:

(i) the probative value of expert psychiatric testimony is to be assessed in the same manner as any other testimony;

(ii) a trier of fact is not bound by the expert psychiatric opinions even when they are unanimous and uncontradicted by other experts;

(iii) there must be a rational foundation in the evidence to reject that expert opinion;

(iv) it may be unreasonable to disregard the expert evidence particularly where the experts’ opinions are unanimous, their evidence is uncontradicted and not seriously challenged, and there is nothing in the conduct of the commission of the crime that would raise any serious question as to the validity of the experts’ conclusion; and

(v) a rational basis for rejecting expert opinion evidence that an accused is NCR may consist of, among other things, a flaw in the expert’s reasoning, a frailty in the basis for the opinion, or a conflict between the opinion and the inferences that can be drawn from the other evidence.

Application of Principles

103Applying these principles to this appeal, here the two psychiatrists called as experts at Trae’s trial were unanimous in their opinion that he was NCR and their opinions were uncontradicted by any other expert, including Dr. Green. Nonetheless, provided there was a rational basis for doing so, the trial judge was entitled to reject their opinion, which he did. As I have explained, he based his rejection on the two psychiatrists’ failure to give sufficient consideration to Dr. Green’s concerns, Trae’s after-the-fact conduct, and the experts’ reliance on hearsay and non-hearsay evidence.

104Trae raises three specific grounds of appeal with respect to the trial judge’s treatment of each of these three issues. I address first the misapprehension of Dr. Green’s evidence, followed by Trae’s after-the-fact conduct and the experts’ reliance on hearsay and non-hearsay evidence.

(i) Misapprehension of Dr. Green’s Evidence

105As mentioned, the first ground I will address is the submission that the trial judge misapprehended Dr. Green’s evidence. I agree with this ground of appeal. The trial judge materially misapprehended Dr. Green’s evidence, which in turn contributed to the trial judge wrongly rejecting Dr. Komer and Dr. Gojer’s expert opinion evidence that Trae was incapable of appreciating that his conduct was wrong according to the moral standards of society at the time of the offences.

106The threshold for appellate intervention based on a misapprehension of the evidence is high: R. v. M.C., 2014 ONCA 307, 308 C.C.C. (3d) 318, at para. 33; R. v. L.E., 2019 ONCA 961, 382 C.C.C. (3d) 202, at para. 154, leave to appeal refused, [2020] S.C.C.A. No. 41. A misapprehension of evidence includes a mistake as to the substance of evidence, a failure to give proper effect to the evidence, or a failure to consider evidence relevant to a material issue: R. v. Stennet, 2021 ONCA 258, 74 M.V.R. (7th) 1, at para. 50. Where a misapprehension of evidence relates to material pieces of evidence that play an essential role in the reasoning process that results in conviction, the misapprehension may give rise to an unreasonable verdict or a miscarriage of justice warranting appellate intervention: see R. v. Schoer, 2019 ONCA 105, 371 C.C.C. (3d) 292, at para. 14; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 80-81.

107In this case, one of the main reasons the trial judge rejected Trae’s NCR defence and relatedly, Dr. Komer and Dr. Gojer’s opinion that Trae was incapable of knowing that his conduct was wrong at the time of the offences, was his belief that the two psychiatrists failed to give appropriate consideration to concerns raised by Dr. Green through her testing. In my view, this conclusion was infected with error.

108The trial judge misapprehended Dr. Green’s evidence in three material ways. First, he misapprehended Dr. Green’s evidence on Trae’s diagnosis. Second, he erred in his characterization of the concerns he attributed to Dr. Green. And third, he erred in his treatment of Dr. Gojer and Dr. Komer’s consideration of Dr. Green’s report.

(a) Trae’s Diagnosis

109First, the trial judge misapprehended Dr. Green’s evidence on Trae’s diagnosis.

110As mentioned, Dr. Green is a psychologist and was part of Trae’s court-ordered assessment team led by Dr. Komer. She was qualified at trial as an expert in the area of forensic psychological assessment, both in relation to the interpretation of psychological tests and forensic observations in that context. She was not qualified to give an NCR opinion, nor did she.

111Dr. Green testified that she first met Trae at his admission interview on May 21, 2015. She explained that Trae underwent psychometric testing and participated in a clinical interview with her. She met with Dr. Komer, whom she was assisting, and the other members of Trae’s clinical team after the testing and interview to discuss Trae’s case.

112The trial judge concluded that “Dr. Green opined from her test results that Trae suffered from a personality disorder rather than schizophrenia.” However, Dr. Green expressed no such opinion. Nevertheless, this misapprehension was one of the concerns the trial judge identified as being disregarded by Dr. Gojer, and insufficiently considered by Dr. Komer, and which contributed to his rejection of their opinions.

113The trial judge’s misapprehension about Dr. Green’s purported diagnosis appears to stem from testimony she gave about Trae’s results on the Anger Disorder Scale. More specifically, in discussing Trae’s score on a subscale of the Anger Disorder Scale, Dr. Green testified that the testing manual indicated that, based on his score, “assessors should rule out paranoid schizophrenia or paranoid personality disorder.” However, Dr. Green did not, as the trial judge understood, state that her test results indicated that Trae suffered from a personality disorder rather than schizophrenia, nor did they. To the contrary, his score simply raised a question about a potential diagnosis, including the possibility that he may suffer from schizophrenia. The trial judge therefore misapprehended Dr. Green’s evidence when he stated that she opined, based on her test results, that Trae suffered from a personality disorder rather than schizophrenia.

114The trial judge’s conclusion in this regard also reflected a failure to appreciate the limitation of Dr. Green’s expertise and led him to improperly identify concerns that did not exist within a faulty construct.

115Dr. Green’s responsibility was not to conduct tests for diagnostic purposes or to determine whether Trae had schizophrenia. She was not retained nor qualified to give an expert opinion on whether Trae was NCR or incapable of appreciating the moral wrongfulness of his conduct. Rather, as part of Trae’s court-ordered assessment team, Dr. Green was tasked with assessing whether he was malingering.

116Dr. Green testified that her recollection was somewhat vague, but that she believed Dr. Komer directed her to complete a forensic psychological assessment of Trae, including personality testing, cognitive screening and symptom over- and under-reporting. She recalled that she was not charged with diagnosing Trae, but rather with assessing whether he was malingering:

A. My actual role in the assessment, as it typically is, has to do more with symptom reporting. So the focus of my assessment is not does this guy have schizophrenia or not.

Q. Okay.

A. It was is this guy malingering.

Q. All right. And just for the purpose, malingering is where there – is this principle where a person is feigning or exaggerating symptoms. Right?

A. For a purpose.

Q. For a purpose. And within the forensic psychological analysis, that purpose is usually to escape some sort of criminal liability...

A. Absolutely, yeah.

117She concluded that there was no evidence to support either a definitive or provisional diagnosis of malingering. On this issue, Dr. Green’s evidence was consistent with that of Dr. Komer and Dr. Gojer, both of whom agreed that the evidence did not suggest that Trae was malingering.

118The Crown concedes on appeal that the trial judge erred when he stated that Dr. Green opined that Trae suffered from a personality disorder rather than schizophrenia. The Crown argues, however, that this was not a meaningful distinction as it related to a small point and Dr. Green raised other concerns that were ignored or minimized by Dr. Komer and Dr. Gojer.

119As I will explain, I disagree with this argument.

120The trial judge’s misapprehension went to Dr. Komer and Dr. Gojer’s central diagnoses, namely that Trae suffers from schizophrenia (according to Dr. Gojer) or schizoaffective disorder (according to Dr. Komer). In addition, the trial judge outlined several “areas of concern” that Dr. Green purportedly identified in her assessment of Trae and went on to conclude that Dr. Komer and Dr. Gojer failed to adequately consider these concerns. One of these concerns related to his erroneous determination that she had ruled out schizophrenia. Moreover, he also failed to appreciate the context, namely that Dr. Green did not find that Trae was malingering, which was the focus of her input, and had not excluded schizophrenia, which, in any event, was an issue the scope of her expertise did not encompass. In sum, the trial judge misapprehended Dr. Green’s evidence on Trae’s diagnosis.

(b) Misattribution of Concerns to Dr. Green

121The trial judge also erred in his attribution of other concerns to Dr. Green. To begin, the trial judge noted that Dr. Green testified that Trae’s pressured speech did not seem genuine and appeared rehearsed. Importantly, however, Dr. Green explained that she made this observation during Trae’s admission interview and that it should “absolutely not” be seen as an indication that he was faking his symptoms. As Dr. Green further testified, Trae subsequently took the SIMS and scored on the cusp for determining whether he was malingering or was genuine. He then took the MFAST, which Dr. Green explained indicated that he was a “true responder” and that “there was no evidence of malingering based upon his responses” to the test. In the end, Dr. Green was emphatic that “there was no evidence to support a definitive or provisional diagnosis of malingering”. She stated that it was not her opinion that Trae was malingering and that her evidence could not be taken as proof of malingering. The trial judge correctly observed that Dr. Green did not make a finding that Trae was malingering, however, he misapprehended her evidence when he relied on her observations about Trae’s speech at his admission interview. In essence, the trial judge identified an area of concern said to arise from her evidence where none existed.

122Similarly, the trial judge also misapprehended Dr. Green’s evidence and purported concerns when he indicated that she testified that Trae endorsed many uncommon themes in personality tests and gave contradictory answers, which generated invalid scores and prevented her from forming any conclusions from the tests. Dr. Green did testify that the personality tests did not yield valid results, but it is important to place her comments in context. Notably, Dr. Green testified that there were a number of different possible reasons for Trae’s test results being invalid and that “you can’t really make a lot of it, just that he’s inconsistent in his responses to the measures.” Contemporaneous notes, for instance, indicated that Trae was expressing psychotic ideations at the time of the testing and Dr. Green conceded that this may have caused the invalid results. These were not simply matters of detail but went to the substance of Dr. Green’s evidence and what the court could draw from it. The trial judge therefore also misapprehended Dr. Green’s evidence about the appellant’s invalid test scores, leading him to identify an area of concern that did not arise from her evidence.

123Further, the trial judge’s misapprehension of other aspects of Dr. Green’s evidence of the psychological testing led him to identify other areas of concern that were not supported by her evidence. For example, the trial judge wrote that Dr. Green testified that Trae’s average scores on intelligence tests did not support a schizophrenia diagnosis and that his scores on block pattern and abstraction tests were unusual for a person with a psychotic disorder. As already noted though, Dr. Green was not asked to conduct tests for diagnostic purposes or to determine whether or not Trae had schizophrenia, but in any event, Dr. Green reported to Dr. Komer that Trae’s presentation suggested that he met the diagnostic criteria for schizophrenia at the time of the alleged offences and that his behaviour clearly included a psychotic explanation.

124Another example: although the trial judge correctly noted that Dr. Green testified that Trae provided an atypical answer about hearing voices on the SIMS, Dr. Green explained that the SIMS was “just a piece of the puzzle” in regard to malingering and that further testing for malingering indicated he was a true responder with no evidence of malingering.

125In short, the trial judge misapprehended Dr. Green’s evidence by attributing concerns to her that did not arise out of her evidence. These misapprehensions were not peripheral, but played an essential part in the trial judge’s decision to reject Dr. Komer and Dr. Gojer’s opinions and to convict Trae.

(c) Experts’ Consideration of Dr. Green’s Report

126Having erred in his attribution of numerous concerns to Dr. Green, the trial judge also erred in concluding that Dr. Gojer “did not consider Dr. Green’s concerns” and “simply dismissed them.”

127Dr. Gojer testified that he received and reviewed Dr. Green’s report. He explained that Trae’s test results may have been invalidated if the tests were conducted while he was actively psychotic:

But prior to doing these tests you need to spend hours with the patient, interviewing the patient to see if there’s a major mental illness. And if a person has a major mental illness, the recommendation often is to wait until things have settled down before you do these tests. Because a major mental illness is going to alter the pattern in which the person is answering the question.

The more serious the illness, the more likely you're going to get an invalid result.

128Indeed, the PAI was administered the same day that contemporaneous notes indicate Trae was expressing psychotic ideations, a frailty that Dr. Green conceded could affect the validity of the test results. Dr. Gojer criticized Dr. Green for not including in her report the reasons why Trae scored the way he did on the PAI and the fact that his elevated scores on certain parts of the PAI supported the presence of a major mental illness:

So if you look at the report from the doctor, she doesn't mention in her report even though it’s an invalidated report that the highest two scores are in the paranoid - in the paranoid and the schizophrenia range. So I feel that this report does not capture the essence and the reasons why Mr. Worrie scored the way he did on the test.

129Far from ignoring Dr. Green’s concerns, Dr. Gojer considered the concerns but had reservations about Trae’s testing and how it impacted Dr. Green’s report. It was thus inaccurate for the trial judge to conclude that Dr. Gojer did not consider Dr. Green’s concerns. Dr. Gojer considered Dr. Green’s report and the underlying test results but identified frailties with them. The trial judge erred when he stated that Dr. Gojer simply dismissed Dr. Green’s concerns.

130In a similar vein, the trial judge also misapprehended the evidence of Dr. Komer’s consideration of Dr. Green’s concerns when he stated that Dr. Komer “gave insufficient consideration to Dr. Green’s concerns.”

131Dr. Komer’s testimony makes clear that he considered her report and the underlying test results. For example, despite the trial Crown’s suggestion that he failed to take account of Dr. Green’s testing when he concluded Trae was not malingering, Dr. Komer testified he incorporated Dr. Green’s concerns into his report and “ma[d]e sure Dr. Green’s opinion was spelled out” in it. I would add that there was no reason not to, as their conclusions in their areas of expertise were consistent.

132In a similar vein, on the issue of Trae’s conduct after the offences, Dr. Komer confirmed that he factored Dr. Green’s report into his report and that what Trae had told him was consistent with Dr. Green’s opinions and conclusions. The Crown had suggested that Trae’s actions when he left the house were of an independent agent who knew exactly what he was doing and who was not under the influence of the incubator or Jesus or others directing him. In Dr. Green’s report, she noted that Trae had explained that when he ran out of the house, Jesus led him down the streets he was to turn down.

133Dr. Komer’s consideration of Dr. Green’s report was effectively captured in his following testimony:

Q. You had indicated that you had factored in Dr. Green’s report into your ultimate report...

A. Correct.

Q. …right? And that – I think we can agree that – and you’ve got this in your report - that Dr. Green noted that,

Mr. Worrie’s presentation suggested that he met the diagnostic criteria for schizophrenia at the time of the alleged offences, and she reported that Mr. Worrie’s accounts regarding his behaviour at the time of his alleged offences clearly included a psychotic explanation, namely that he was commanded to do so by government officials through the incubator in order to have the incubator turned off.

Q. Right?

A. Correct.

Q. All right. So this was Dr. Green’s I guess opinions and conclusions, as well, that you factored into your report…

A. Yes.

Q. …right? The – and that’s consistent with what Mr. Worrie told you throughout his dealings with you…

A. Yes.

Q. …that he did what he did to have the incubator turned off?

A. Correct.

134Simply put, Dr. Komer considered Dr. Green’s report and the underlying tests in coming to his conclusion that Trae was suffering from schizoaffective disorder, was not malingering, and was NCR. He factored Dr. Green’s opinion into his assessment and did not, as the trial judge found, give matters she raised insufficient consideration.

135Lastly, I would also note that the trial judge’s finding that Dr. Komer gave insufficient consideration to Dr. Green’s concerns is contradicted by the trial judge’s finding in his original reasons that “Dr. Komer considered Dr. Green’s concerns along with all the other evidence before reaching his conclusion.”

136In summary, the trial judge materially misapprehended Dr. Green’s evidence. These misapprehensions related to her stated diagnosis of Trae, the trial judge’s appreciation of the scope of her expertise, his identification of concerns in her assessment, and Dr. Gojer and Dr. Komer’s consideration of matters raised by her. The misapprehensions were not collateral. Rather, they went to the substance of her evidence and played an important role in the trial judge’s reasoning process for rejecting Trae’s NCR defence and Dr. Komer and Dr. Gojer’s opinion that he was incapable of knowing that his conduct was wrong at the time of the offences.

137In conclusion, Dr. Green’s evidence did not provide a rational basis to reject the unanimous expert opinion that Trae was NCR. Dr. Green’s opinion did not conflict with the opinion of Dr. Komer and Dr. Gojer, and, to the extent she raised any concerns, the two psychiatrists considered those concerns.

138In my view, the trial judge’s misapprehension of Dr. Green’s evidence is a sufficient basis for this court to intervene because, just as in Molodowic, it resulted in an unreasonable verdict. Although the trial judge indicated that he was also relying on Trae’s after-the-fact conduct and the absence of non-hearsay evidence demonstrating Trae was incapable of appreciating the moral wrongfulness of his conduct, I am satisfied that the misapprehension adversely impacted the trial judge’s consideration of these issues. The misapprehension skewed the evidentiary record upon which the trial judge analyzed the after-the-fact conduct and the sufficiency of the evidence, leading him to erroneously conclude that it was more likely than not that Trae was capable of appreciating that his conduct was wrong according to the moral standards of society. The misapprehension resulted in a verdict that is not that a properly instructed judge or jury, acting judicially, could reasonably have rendered. Appellate intervention is therefore warranted.

139Further, and in any event, consideration of the other two grounds of appeal relating to the NCR defence solidify my conclusion that the convictions must be set aside. I will briefly address both of these grounds.

(ii) After-the-Fact Conduct

140The second reason the trial judge gave for rejecting the NCR defence was his determination that the only reasonable inference that could be drawn from Trae’s after-the-fact conduct was that he had the capacity to rationally decide that his actions were morally wrong.

141After-the-fact conduct evidence is evidence of “what the accused both said and did after the offence charged in the indictment was allegedly committed”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106, per Martin J., dissenting, but not on this point. It “is circumstantial evidence that may help the trier of fact determine the accused’s culpability for the crime”: R. v. Vorobiov, 2018 ONCA 448, at para. 54, leave to appeal refused, [2019] S.C.C.A. No. 440; and is “generally admissible to show that the accused acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person”: R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 51.

142In the NCR context, after-the-fact conduct may be relevant to an assessment of an accused’s NCR defence. Evidence, for instance, that an accused concealed the weapon or fled the scene of the offence may bear upon the accused’s capacity to appreciate the wrongfulness of their conduct: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 50. At the same time, however, after-the-fact conduct is often highly ambiguous and carries the risk that the trier of fact may “mistakenly leap from such evidence to a conclusion of guilt” without taking into account alternative explanations for the accused’s behaviour: R. v. White, [1998] 2 S.C.R. 72 (“White (1998)”), at para. 22; see also Calnen, at paras. 116-17, per Martin J., dissenting, but not on this point. Like any other evidence, after-the-fact conduct “takes on its full significance and probative value only in the context of the other evidence in the case”: White (1998), at para. 43.

143In this case, after committing the offences, Trae discarded the knife into the kitchen sink; collected his phone, charger, money and wallet; and left his home on foot. After leaving home, he dropped his blood-soaked shirt in front of a van parked in a nearby driveway and ran bare-chested through the local neighbourhood until he was apprehended by police. During this time, he was observed “washing” his hands in a drain consisting of leaves, mud, and no water, and attempted both to call a taxi and to call and text several friends.

144It was Dr. Komer’s opinion that at the time of the offences, Trae’s illness adversely affected his “knowledge of the wrongfulness of his actions” and “his ability to … perceive things rationally and make a rational choice about the wrongfulness of his actions”, even though he knew they were legally wrong. He opined that while there were some NCR cases that were tougher to determine, he did not have “any doubt” that Trae was NCR. Dr. Gojer similarly described his opinion that Trae was NCR as going beyond the balance of probabilities.

145The trial judge stated that “the only rational inference” from Trae’s after-the-fact conduct was that Trae “did these things in an effort to evade arrest for the offences he had committed.” Moreover, the weight to be given Dr. Komer and Dr. Gojer’s opinions was reduced because he said they treated this conduct as either not relevant or an unimportant consideration in the determination of whether Trae knew his conduct was morally wrong. In the trial judge’s view, Trae’s after-the-fact conduct demonstrated an appreciation of the moral wrongfulness of his actions. His efforts to evade capture by the police illustrated an ability to exercise rational thought, despite his mental disorder.

146On appeal, Trae argues that his after-the-fact conduct was of no assistance in this case. Given his admission that he knew his actions were legally wrong, he says his after-the-fact conduct provided no probative value to the issue of whether he knew they were morally wrong. He contends that because his after-the-fact conduct was “equally explained by” or “equally consistent with” the admitted fact that he knew the actions were legally wrong, the trial judge could not use his after-the-fact conduct to determine whether he knew his actions were morally wrong: see R. v. Arcangioli, [1994] 1 S.C.R. 129, at p. 145; White (1998), at para. 28; and R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 37.

147To the extent that Trae is submitting that there is a general rule prohibiting the consideration of after-the-fact conduct on the issue of moral wrongfulness when legal wrongfulness is conceded, I disagree. The fact that accused concede that their actions are legally wrong does not mean that their after-the-fact conduct is necessarily irrelevant to the issue of whether they also knew their actions were morally wrong. As the Supreme Court has observed, “[t]he existence of alternative explanations for the accused’s conduct does not mean that certain evidence is no longer relevant. The overall conduct and context must be such that it is not possible to choose between the available inferences as a matter of common sense, experience and logic”: Calnen, at para. 124, per Martin J., dissenting, but not on this point.

148That said, in this case, the trial judge concluded without explanation that the only reasonable inference available from Trae’s after-the-fact conduct was that he had the capacity to rationally decide that his actions were morally wrong. While a trial judge’s reasons are to be reviewed functionally and contextually, rather than “in a search for error” (R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 69), the trial judge did not grapple with any alternative explanation and, in particular, whether Trae’s conduct may instead be simply explained by his knowledge that his actions were legally wrong. Of course, there will be occasions where legal knowledge and moral knowledge are co-existent as in Woodward and Dobson, but as Lamer C.J. explained in Chaulk, this is not invariably so. As he clarified at p. 1354 of that decision, a person may be aware that an act is contrary to law but, by reason of disease of the mind, at the same time be incapable of knowing that the act is morally wrong: “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.’” As this court and the Supreme Court have repeatedly affirmed, a trier of fact must be cautious about drawing incriminating inferences from after-the-fact conduct without first considering alternative explanations for the impugned conduct: see e.g., R. v. Diu (2000), 49 O.R. (3d) 40 (C.A.), at paras. 120-21, leave to appeal abandoned, [2000] S.C.C.A. No. 406; Calnen, at para. 117, per Martin J., dissenting, but not on this point.

149While I would not conclude that in every case, a trial judge must explain why an alternative explanation is rejected, in this case, the need to consider alternative explanations for Trae’s after-the-fact conduct was particularly acute given the evidence of both Dr. Komer and Dr. Gojer and their view that the conduct was attributable to the admitted fact that Trae knew his actions were legally wrong. In the face of this uncontradicted expert opinion, the trial judge should have examined why he rejected their explanation for Trae’s after-the-fact conduct and concluded that the only inference that could be drawn from the conduct was that Trae knew his actions were morally wrong. Instead, the trial judge used Trae’s after-the-fact conduct as a further basis to discount Dr. Komer and Dr. Gojer’s opinions and reject the NCR defence. In the face of the unanimous and uncontroverted expert evidence to the contrary, it was incumbent on the trial judge to consider an alternative explanation. Put differently, without some explanation from the trial judge, Trae’s after-the-fact conduct was not a rational foundation on which to reject the experts’ opinion in this case. Moreover, as I have already stated, the trial judge’s misapprehension of the evidence skewed the record on which he analyzed the after-the-fact conduct.

(iii) Hearsay Statements

150The third main reason the trial judge gave for rejecting Dr. Komer and Dr. Gojer’s opinions and Trae’s NCR defence was his conclusion that there was insufficient evidence that Trae was incapable of appreciating that his conduct was wrong according to the moral standards of society at the time of the offences. On appeal, Trae argues that the trial judge erred in regard to the use that could be made of his statements and mischaracterized admissible original evidence as hearsay.

151In my view, this ground of appeal can be readily disposed of based on my earlier discussion. The trial judge’s misapprehension of Dr. Green’s evidence and his mistreatment of Trae’s after-the-fact conduct skewed the evidentiary record upon which he evaluated the sufficiency of the evidence and concluded it was more likely than not that Trae was capable of appreciating the moral wrongfulness of his conduct. On a full appreciation of the proper evidentiary record, I would conclude that he erred by rejecting Dr. Komer and Dr. Gojer’s opinions and Trae’s NCR defence based on the purported insufficiency of the evidence.

152Courts draw a distinction between preposterous statements of a delusion, which can be considered as original evidence and are not offered as proof of any fact asserted in them, and statements from an accused about a previous delusion, which are not original evidence but rather hearsay assertions not admissible to prove the fact asserted: see R. v. Kirkby (1985), 21 C.C.C. (3d) 31 (Ont. C.A.), at pp. 53-56, leave to appeal refused, [1986] 2 S.C.R. vii.

153The trial judge used some of Trae’s statements as original evidence that circumstantially supported the conclusion that he was suffering from a mental disorder. The trial judge indicated that a series of statements Trae made were admissible “for the non-hearsay purpose of establishing that he said the things attributed to him”. He stated the following concerning the experts’ reliance on them at para. 379(m):

There is an agreed statement of facts regarding the evidence of three psychiatrists who saw [Trae] at Maplehurst. What [Trae] said to any of them is hearsay, however, such evidence is admissible to establish what was said for the fact that it was said and when it was said in the chronology of events. The experts (Dr. Komer, Dr. Gojer and Dr. Green) relied on what Trae said to them and others (for example Officer Cardi, Kate Whiting, Caroline Ackerman, Harsh Pal, Nitan Sharma, Elsworth Worrie, Judy Worrie, Juanita Campbell, Dr. Green, Dr. Komer, Dr. Gojer and Dr. Shariff). This evidence is hearsay, and can be used to assess the opinions of the experts but may not be relied on as proven facts in assessing the experts’ opinions.

154He further stated at para. 388:

The statements [Trae] made to the doctors Komer, Gojer and Green are hearsay, and inadmissible for the truth of their contents. However, the statements of [Trae] to Dr. Komer, Dr. Gojer, Dr. Green, Nitan Sharma, Constable Cardi and others (which are of a preposterous nature) are admissible as original evidence of [Trae’s] state of mind at the time he made those statements. These statements may also be used as circumstantial evidence regarding whether [Trae] had a mental disorder at the time when he stabbed Sam and Juanita Campbell. [Emphasis in original.]

155In his factum, Trae listed original evidence which included statements he made to his family, friends, medical staff and the arresting officer, as well as observations made by them. The Crown agrees that many of these items were original evidence and that while the trial judge would have been entitled to find that this was evidence of a mental disorder that also supported that Trae was NCR at the time of the offence, he was not required to reach that conclusion.

156The trial judge of course did not reach that conclusion and gave Dr. Gojer and Dr. Komer’s opinions little weight. That said, the trial judge’s rejection of the experts’ opinions loses force in the face of my previous conclusions.

157In addition, there clearly was evidence of psychosis both before and after the offences. The admissible original evidence was extensive, including preposterous statements made by Trae to various individuals and their observations of him, both leading up to and following the offences. The two experts were entitled to hold their opinions that Trae was NCR at the time of the offences based on these statements and observations. Notably, at a time immediately proximate to committing the offences, Trae made preposterous statements to Officer Cardi that were consistent with Dr. Komer and Dr. Gojer’s conclusion and the extensive body of evidence of Trae’s troubled state of mind. Fundamentally, in the face of the body of evidence that supported the two experts’ unanimous opinion that Trae was NCR, coupled with their and Dr. Green’s unanimous opinions that Trae was not malingering, there was no rational foundation on which to reject the two experts’ opinions and to conclude there was insufficient evidence that Trae was incapable of appreciating that his conduct was wrong according to the moral standards of society at the time of the offences.

E. Conclusion

158The trial judge’s misapprehensions went to the core of the trial judge’s reasoning process. This led him to discount the uncontradicted expert opinions, resulting in Trae’s convictions and an unreasonable verdict. The trial judge’s rejection of Dr. Komer and Dr. Gojer’s unanimous opinions that Trae was NCR cannot be sustained. As the misapprehensions were material and played an essential part in the reasoning process resulting in a conviction, this court may intervene and enter a verdict of NCR: see Criminal Code, s. 686(1)(d); Molodowic; and R. v. Mock, 2016 ABCA 293, 42 Alta. L.R. (6th) 40, leave to appeal refused, [2016] S.C.C.A. No. 531.

159In light of this determination, there is no need to address the other ground of appeal relating to the allegation that the revised reasons lacked integrity.

Disposition

160For these reasons, I would allow the appeal, set aside the convictions, and substitute a verdict that Trae was not criminally responsible on account of mental disorder within the meaning of s. 16 of the Criminal Code. Trae will remain in custody pending a disposition hearing by the Review Board. The appellate record will be sent to the Review Board without delay.

Released: June 17, 2022 “J.S.” “S.E. Pepall J.A.” “I agree. Janet Simmons J.A.” “I agree. L.B. Roberts J.A.”

[1] The trial judge released the reasons on August 21, 2019. On January 16, 2020, he re-released the reasons with edits. Some databases contain the reasons released on August 21, 2019, not the reasons re-released on January 16, 2020. [2] Due to the similarities in surnames, I have used first names for friends and family members. [3] The alleged defect prompting the mistrial application is not the subject of this appeal. It is unrelated to the revised reasons.