Court of Appeal for Ontario

Date: 2025-07-23
Docket: C68279
Coram: Trotter, Thorburn and Sossin JJ.A.

Between:
His Majesty the King (Respondent)
and
Richard Pereira (Appellant)

Appearances:
Andrew Furgiuele and Kamran Sajid, for the appellant
Dena Bonnet, for the respondent

Heard: 2025-06-19

On appeal from the conviction entered by Justice David E. Harris of the Superior Court of Justice on July 12, 2019, and the sentence imposed on November 28, 2019, with reasons reported at 2019 ONSC 4321.

Sossin J.A.:

OVERVIEW

1The appellant was convicted of second degree murder in the killing of Kathryn Horne. At trial, the defence conceded that the appellant killed Ms. Horne. The primary issue was whether the appellant was not criminally responsible (“NCR”). The appellant argues that the trial judge made several errors in determining that he was criminally responsible for the murder of Ms. Horne. In an amended Notice of the Appeal, the appellant also sought to appeal his sentence; however, he did not pursue this aspect of his appeal in written or oral submissions. For the following reasons, I would dismiss the appeal from conviction and dismiss the sentence appeal as abandoned.

BACKGROUND

2The appellant has a long history of mental illness. For over a decade prior to the murder, he experienced delusions. On several occasions, he claimed that he became fearful of a former girlfriend because he thought she was manipulating him and trying to hurt him. He also complained of being followed and called 911 on several occasions to report it. He hired private investigators to look into who was following him (although the investigators determined that no one was). On several occasions he was civilly committed under the Mental Health Act, RSO 1990, c M.7.

3Just prior to the murder, the appellant called the Canadian Mental Health Association crisis line. He had been given the number a few days earlier after being released on bail from a public mischief charge for filing a false report (he had called 911 to report that he found what he believed to be a bomb but no bomb was found). His mother, who lived with him in Brampton, indicated to the operator that she was going to take him to the hospital.

4After midnight on March 29, 2015, the appellant’s mother made a 911 call from his home requesting an ambulance. The police arrived first and found the appellant sitting on the couch with his head in his hands. He said he needed to die and that he was cursed by black magic. He also said people were trying to kill him. The police began the process of civil committal under the Mental Health Act. Before they took him away, the appellant told the police that they should look in the basement. He said that he had done something “bad”; he killed someone and she was in the bathroom. He said he would go to jail forever.

5The appellant’s mother found the body of Ms. Horne in the basement. Ms. Horne was stabbed 34 times. Two stab wounds to her neck caused her death. The remaining 32 stab wounds were to her torso. Ms. Horne also had 23 incised wounds, some of which were defensive. Evidence showed that Ms. Horne was killed in the bathroom and then dragged to an adjoining area. Efforts had been made to clean up the blood. Additionally, the appellant had put some of Ms. Horne’s clothing and jewelry into garbage bags and attempted to dispose of her cell phone.

DECISION BELOW

6At trial, the original defence theory was that the appellant heard a voice (known to him as “Gabor”) that told him that Ms. Horne was part of the group that was after him and that he should kill her to prevent her from killing him. The appellant had also self-reported this same version of the killing to Dr. Julian Gojer, who prepared an NCR report for trial that indicated that, based on the appellant’s version of events, he was likely NCR at the time of the killing.

7The trial judge concluded (and the Crown conceded) that disease of the mind was easily satisfied in this case, given the appellant’s long history of paranoid and persecutory psychosis. He experienced delusions which increased markedly in the six months prior to the murder. Several witnesses testified to pervasive symptoms of paranoid psychosis. At trial, expert witnesses could not agree on a diagnosis, but the trial judge found it unnecessary to resolve this issue given that all of the potential diagnoses were diseases of the mind.

8The trial judge found, however, that the defence had not met their burden of showing that the appellant was incapable of knowing that the killing was morally wrong. He found that there was insufficient evidence to show that the appellant feared for his safety and killed Ms. Horne out of a belief that it was necessary for his self-preservation. He found that the only evidence supporting this theory was the appellant’s own testimony.

9The trial judge found that the appellant was not a reliable or credible witness (which also was a position his own counsel took at trial). The trial judge found the appellant’s testimony to be inconsistent and contradictory. The appellant claimed that he kept knives he had taken from a knife block in the kitchen in two interior pockets of his jacket out of fear that people were trying to hurt him but this testimony was contradicted in cross-examination. The jacket, which was taken out of evidence bags, had no inside pockets and the knives, which he claimed to have hidden in his room after the murder, were still in the knife blocks. The appellant also testified that he knew Ms. Horne posed no imminent threat to him. The trial judge further noted that the appellant had not previously indicated that he heard voices, aside from two instances in 2004.

10The trial judge found that the appellant’s testimony on cross-examination destroyed the factual basis for Dr. Gojer’s NCR opinion. Although Dr. Gojer offered an alternative opinion after hearing the appellant’s testimony, the trial judge ultimately concluded that he could not rely on the opinion as it lacked evidentiary support. He also raised concerns with Dr. Gojer’s objectivity.

11The trial judge further concluded that the appellant’s efforts to conceal the crime scene and the utterances made following the crime did not support an NCR finding. In particular, he noted that the appellant knew he had done something “bad.” He found that the appellant’s post-offence conduct supported a consciousness of guilt. The trial judge ultimately concluded that it was much more likely that the appellant killed Ms. Horne out of rage. Ms. Horne’s friend testified that she was going to break up with the appellant that day. The trial judge also noted that Ms. Horne had been financially supporting the appellant to a significant degree.

12The trial judge ultimately directed an acquittal on the charge of first degree murder, and convicted the appellant of second degree murder.

ANALYSIS

13The appellant raises three grounds of appeal:

1. That the trial judge erred by misapplying the legal test for an NCR defence;
2. That the trial judge erred in his analysis of moral wrongfulness by overemphasizing the appellant’s post-offence conduct; and
3. That the trial judge misapprehended the evidence of Dr. Pomichalek by failing to consider it at all in his reasons.

I deal with each ground of appeal below.

(1) The trial judge did not misapply the legal test for an NCR defence

14The NCR defence, as set out in s. 16(1) of the Criminal Code, RSC 1985, c C-46, provides:

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

15Qualifying for this defence can involve two different pathways. In every case, the accused must establish that they suffer from a mental disorder or a “disease of the mind”. Then, the accused must establish either that the accused’s mental disorder or disease of the mind rendered them incapable of appreciating the nature and quality of the act/omission (the “first branch”); or that the accused’s mental disorder rendered them incapable of knowing that the act/omission was wrong (the “second branch”): see R. v. Capano, 2014 ONCA 599, paras. 53-56.

16The Crown, with a minor caveat, conceded that the appellant satisfied the first branch of the NCR threshold, and the trial judge found the evidence that the appellant suffered from a disease of the mind to be “undeniable”.

17With respect to the two different branches of the second part of the test, in this case, the defence pursued the second branch in arguing that the appellant qualified for the NCR designation. Therefore, in addition to establishing that the appellant suffered from a mental disorder, it was the appellant’s burden to establish, on a balance of probabilities, that he did not understand that killing the victim was “morally wrong.”

18The parties agree on the case law governing the second branch of the NCR threshold. In R. v. Oommen, [1994] 2 SCR 507, at p. 517, the Supreme Court explained that the focus must be on the accused’s particular capacity to understand that their “act was wrong at the time of committing the act.” The court held that the focus is on the accused’s particular capacity to make a rational choice, a capacity which could be interfered with by their delusions. The court held, at pp. 519-20:

A person may have adequate intelligence to know that the commission of a certain act, e.g., murder, is wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing and the considerations which to normal people would make the act right or wrong. [Emphasis in original.]

19The appellant argues that the trial judge made two errors in support of this ground of appeal. First, the appellant argues that the trial judge improperly added a causal element to the NCR test, and second, the appellant argues that the trial judge improperly required the accused to show that he had acted in self-defence. I will deal with each argument in turn.

(a) The trial judge did not improperly add a causal element to the NCR threshold

20The trial judge explained that there were two “necessary stages” in the NCR position put forward by the appellant at trial. First, the appellant had to show that at the time of the killing, the appellant’s delusions led him to kill Ms. Horne. Second, the appellant had to show that the appellant at that time was not capable of knowing that his actions were morally wrong. In light of how the trial judge understood the defence’s position, he had to consider the presence of the appellant’s delusions and their role, if any, in the appellant’s killing of Ms. Horne.

21According to the appellant, the trial judge added an additional element to the second branch, requiring the appellant to show a causal connection between the appellant’s delusions and Ms. Horne’s death. The appellant argues that by introducing this requirement, the defence was tasked with showing how the appellant’s delusions were directly and causally linked to Ms. Horne.

22The Crown submits that, while it was accepted that the appellant had a mental disorder that made him believe that there were people who were out to get him, that alone did not suggest that the appellant lacked the capacity to understand that killing the victim as a result of his delusion was morally wrong. As the trial judge identified, “in the context of this record”, something further was required: “the killing must have been not only committed while in a delusionary state, but the delusions must have deprived him of the capacity to know his acts were morally wrong.”

23The trial judge did not add a new requirement to the NCR threshold, as alleged by the appellant. Rather, his comments with respect to causation reflected his attempt to grapple with the defence’s theory of the case and the unusual events that unfolded at trial. As the trial judge noted, while this issue may not arise in other NCR cases, on the particular facts of this case, the role that the appellant’s delusions played in the killing came into question, particularly following the appellant’s testimony and his own counsel’s concession that no reliance should be put on the appellant’s evidence.

24I see no error in the trial judge’s approach. Some connection between the appellant’s delusions and actions in killing Ms. Horne was relevant in the context of his claim to meet the NCR threshold. The trial judge was entitled to find that the appellant maintained the capacity to understand that murder was morally wrong, notwithstanding his ongoing delusions.

(b) The trial judge did not improperly add a requirement to show self-defence to the NCR threshold

25The appellant also argues that the trial judge added a de facto self-defence requirement for the appellant to meet the NCR threshold. The appellant relies on the trial judge’s statement that the defence was “obligated to demonstrate that [the appellant] erroneously believed, because of his paranoia and delusionary state, that Ms. Horne was a threat to his life and well-being. He killed Ms. Horne under the influence of a delusion that it was necessary for his self-preservation.”

26The appellant relies on Oommen, where the Supreme Court, at p. 520, explicitly rejected that an accused asserting the NCR defence is required to “raise a specific defence, such as self-defence.”

27The Crown submits that the trial judge did not require the defence to establish a de facto self-defence argument. Rather, the trial judge considered the appellant’s own theory of events – which itself raised the issue of self-defence.

28I agree. Read in context, the trial judge’s references to self-defence reflected his attempt to grapple with assertions from the defence as to what transpired rather than an erroneous heightening of the threshold to be met for an NCR designation. The trial judge clearly states that his rejection of the self-defence narrative was a direct consequence of disbelieving the appellant’s evidence:

The concession that Mr. Pereira was unreliable as a witness had profound ramifications for this trial. I have found that not only do I not believe Mr. Pereira—which is as far as the defence concession went—I disbelieve him. The rejection of Mr. Pereira’s account of the voices that led him to kill Ms. Horne is important. There is no credibility to the entire narrative leading to Mr. Pereira’s self-professed actions said to [be] taken in his own defence. [Emphasis added.]

29After addressing the appellant’s position, the trial judge carefully addressed the evidence to determine whether the appellant was incapable of understanding that killing Ms. Horne was morally wrong. He noted that the only evidence supporting the appellant’s position was that of the appellant himself, which the trial judge concluded lacked credibility and reliability and which the trial judge expressly stated he disbelieved. He concluded that the appellant had failed to establish that he was incapable of knowing that what he had done was morally wrong.

30In my view, the trial judge did not misapply the NCR test, and I would reject this ground of appeal.

(2) The trial judge did not err in his analysis of the appellant’s post-offence conduct

31The appellant submits that the judge’s reasoning with respect to the post-incident conduct failed to consider reasonable alternative explanations and failed to explain why the defence position with respect to the post-incident conduct was rejected. The defence’s theory at trial was that the appellant was in a “frenzied” state of mind, and that the post-offence conduct, such as destroying Ms. Horne’s cell phone, was consistent with his paranoid delusions. The defence’s theory found support in the expert opinion of Dr. Gojer.

32The Crown argues that the trial judge’s finding that the appellant’s after-the-fact conduct “demonstrates consciousness of guilt” is entitled to deference.

33This Court provided helpful guidance on the treatment of post-offence conduct in the NCR analysis in R. v. Worrie, 2022 ONCA 471, para. 142:

In 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. 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. 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”. [Citations omitted.]

34In Worrie, the trial judge relied, in part, on the appellant’s after-the-fact conduct to discount expert opinions and reject the appellant’s NCR defence. In that case, the unanimous and uncontroverted expert opinions were that the appellant’s after-the-fact conduct was attributable to the fact that he understood that his actions were legally wrong but that his illness affected his ability to perceive that his actions were morally wrong. This court found that, although not required in every case, in the face of uncontradicted expert opinion, the trial judge should have examined why he rejected the expert’s explanation for the appellant’s after-the-fact conduct, and concluded that the only inference that could be drawn from the conduct was that the appellant in that case knew his actions were morally wrong.

35This case may be distinguished. Here, the trial judge rejected Dr. Gojer’s expert evidence for the reasons set out above, and there was no consensus as to the implications of the appellant’s post-offence conduct. The trial judge found the distinction between moral and legal wrongfulness in this context to be “virtually indiscernible.” In my view, in the context of this case, the trial judge appropriately relied on the appellant’s post-offence conduct, and particularly his attempts to conceal evidence of the crime, and his admission that he had done something “bad.”

36The trial judge was entitled to consider the post-offence conduct in considering whether the appellant knew that what he did was morally wrong. In doing so, the trial judge was not required to conclude that this finding was the only possible explanation for the appellant’s conduct.

37Further, this post-offence conduct was only part of the evidence that the trial judge considered. He also considered evidence that the appellant had lied, and evidence that Ms. Horne intended to break up with the appellant.

38I see no error in the trial judge’s consideration of the post-offence conduct, as part of his determination that the appellant knew that his actions were morally wrong.

(3) The trial judge did not err in his treatment of the evidence of Dr. Pomichalek

39As set out above, the trial judge considered and rejected the evidence of the defence’s expert psychiatrist, Dr. Gojer, expressing serious concerns about his lack of objectivity.

40The appellant does not argue that the trial judge erred with respect to his assessment of Dr. Gojer’s evidence or his decision to disregard it for the reasons set out above. Rather, the appellant asserts that the trial judge erred by not considering the evidence of a psychologist, Dr. Pomichalek, whose assessment of the appellant was conducted in conjunction with Dr. Gojer.

41Dr. Pomichalek’s assessment was that the appellant likely was NCR. According to the appellant, Dr. Pomichalek played a key role within the appellant’s trial, testifying for over two days, and preparing a 60-page psychological report (that was filed as an exhibit at trial) based on extensive interviewing and testing of the appellant. In particular, the appellant argues that the trial judge failed to consider the implication of the appellant being at “very close to the upper limit of Mild Intellectual Disability range” and that his memory was at an “extremely low range”.

42The Crown argues that the trial judge properly considered the substance of Dr. Pomichalek’s evidence, but contends that Dr. Pomichalek was not eligible to complete an NCR assessment on his own. Dr. Pomichalek is a forensic and clinical psychologist. Section 672.1 of the Criminal Code requires that an NCR assessment only be completed by “a medical practitioner or any other person who has been designated by the Attorney General as being qualified to conduct an assessment of the mental condition of the accused”. In Ontario, the Attorney General has not designated psychologists to complete NCR assessments. Dr. Pomichalek, as part of a team of experts, was to perform psychological testing which would contribute to the NCR assessment report written by a psychiatrist, Dr. Gojer. According to the Crown, it would not have been appropriate for the trial judge to rely on Dr. Pomichalek’s final NCR conclusion.

43It is apparent from his reasons that the trial judge did not ignore Dr. Pomichalek’s evidence. For example, at para. 70 of his reasons, the trial judge states, “[t]he psychological testing done on Mr. Pereira shows he has a very poor short-term memory and is functioning at a very low level.” Given that the defence relied on Dr. Gojer’s assessment of the appellant, it was appropriate that the trial judge focused on Dr. Gojer’s evidence.

44Finally, with respect to whether the trial judge could rely on Dr. Pomichalek’s assessment on its own as a basis for an NCR designation, the appellant referred to lower court decisions where the evidence of psychologists have been referred to in an NCR analysis, but provides no principled rationale for why the Criminal Code should be interpreted as permitting non-medical practitioners as qualified to conduct an assessment for purposes of the NCR determination. If it were necessary to reach this question, I would conclude Dr. Pomichalek’s evidence on its own could not be a basis for an NCR expert assessment.

45Therefore, I would reject this ground of appeal.

DISPOSITION

46For the reasons set out above, I would dismiss the appeal from conviction. I would dismiss as abandoned the appeal from sentence.