Court of Appeal for Ontario
Judges: Fairburn A.C.J.O., Monahan and Osborne JJ.A.
Between:
His Majesty the King Respondent
and
Diana Babor Appellant
Counsel:
Diana Babor, acting in person Michael Davies, appearing as amicus curiae Brent Kettles, for the respondent
Heard: April 17, 2026
On appeal from the verdict of not criminally responsible on account of mental disorder entered by Justice Kevin Phillips of the Superior Court of Justice, dated December 9, 2022.
Reasons for Decision
1Following a trial, the appellant Ms. Babor was found not criminally responsible (“NCR”) by reason of mental disorder in relation to one count of criminal harassment pursuant to s. 264(3) of the Criminal Code, R.S.C. 1985, c. C-46, and was accordingly referred to the Ontario Review Board (“the Board”). She received an absolute discharge from the Board on May 17, 2023.
2Ms. Babor is self-represented on this appeal. The court appointed amicus curiae to assist her. At trial, Ms. Babor was at times represented by counsel, at other times she was self-represented and at other times still, she was assisted by amicus curiae.
3Ms. Babor asks in her Supplementary Notice of Appeal that this court set aside the finding of NCR below and enter an acquittal. Appeal amicus also submits that the finding of NCR should be set aside, but submits that a new trial should be ordered. The Crown (respondent) submits that the appeal should be dismissed, but in the alternative submits that there is no basis to order a new trial and only the finding of NCR should be remitted to the Superior Court if necessary.
4Ms. Babor and appeal amicus raise seven grounds of appeal related to alleged procedural errors and one substantive ground of appeal related to the trial judge’s conclusion in arriving at the NCR verdict. They also raise an overarching issue that they submit affected the entire proceeding below. Finally, Ms. Babor also seeks to file fresh evidence consisting of a report from a psychologist together with her clinical notes as described below.
5For the reasons that follow, I would grant leave to admit the fresh evidence but dismiss the appeal.
Preliminary Matter: Adjournment Request
6At the outset of argument the appellant requested an adjournment of the appeal to allow her additional time to file a factum and prepare submissions. Appeal amicus took no position on the adjournment request and the Crown opposed it.
7This appeal has been extensively case managed by two judges of this court. The most recent case conference was conducted by Dawe J.A. on July 10, 2025 in the presence of the appellant and appeal amicus. The case conference was required specifically because Ms. Babor had not filed a factum and therefore the appeal had not been perfected or set down for hearing. The Crown requested a hearing date in November 2025 and Ms. Babor preferred a later hearing date.
8At the conclusion of the case conference, Dawe J.A. directed that the appeal could be scheduled for hearing whether or not Ms. Babor had filed a factum, that if she chose to file a factum it was due no later than 30 days before the scheduled hearing date, and that the appeal would proceed on the scheduled date whether or not Ms. Babor had filed a factum in accordance with that direction. Finally, he directed that Ms. Babor would be permitted to make oral argument at the hearing of the appeal, whether or not she had filed a factum.
9In the circumstances, and given the previous adjournments of this appeal, particularly the directions of Dawe J.A., the court denied the adjournment request and the appeal proceeded.
Background and Chronology of Proceedings Below
10The appellant and the complainant first met in the spring of 2002. Both were employed by the federal government.
11In the summer of 2002, Ms. Babor asked the complainant if they could meet privately, and they did so in a boardroom at their workplace. At the meeting, Ms. Babor raised a number of topics of a personal nature including issues with a former romantic partner, restraining orders obtained by him against her, her convictions for breaches of those orders, the effect of those convictions on her ability to be qualified as a lawyer, and her belief that her friends and her lawyer had all conspired against her to stop her from becoming a lawyer.
12As a result of that meeting and further interactions with the appellant, the complainant became concerned that she was transferring her love interest from her former boyfriend to him. Later that same year, the complainant received a document comprising approximately 30 pages from the appellant which contained what the complainant described as “rambling” and “incoherent” messages ending with her proposing sexual relations with him, including particulars of the sexual activity in which she proposed they engage.
13Upon receiving this document, the complainant went to the Ottawa police. Charges were laid and Ms. Babor pled guilty to criminal harassment and received a conditional sentence with a probation period of 12 months. The probation order included a non-communication condition in relation to the complainant.
14Ms. Babor and the complainant had a small number of further interactions in the period between 2008 and 2013. Then, in 2017, certain events occurred giving rise to the index offence.
15In June 2017, Ms. Babor and the complainant had a few brief encounters by chance on the street. After that, between June and November 2017, the appellant sent approximately seventeen emails to the complainant. In those emails, the appellant asked the complainant to “stop running away from me”, “stop making me crawl” and suggested a time and place for them to meet. One email contained what amicus accurately described as a contractual offer for sex.
16The complainant did not respond to any of the emails, but rather forwarded them to the Ottawa police. The police wrote to Ms. Babor advising her not to communicate with the complainant, but she continued sending emails anyway. Ms. Babor was subsequently charged with the offence of criminal harassment that is the subject of this appeal.
The Trial
17This was clearly a very challenging trial. It ultimately proceeded after numerous adjournments granted at the request of the appellant to prepare for trial and for the NCR hearing.
18While periodically represented by counsel at various stages of the proceeding below2, Ms. Babor was self-represented for significant parts of the trial. She was assisted throughout both the trial and the NCR proceedings by amicus. She herself is trained as a lawyer with a master’s degree in law, and as was evident on the hearing of this appeal, is articulate and capable of making submissions, although amicus fairly describes her as a challenging litigant.
19At trial before a judge alone, the court heard from four witnesses: the investigating officer, the complainant, Ms. Babor and an additional defence witness.
20Ms. Babor made closing submissions on her own behalf. The trial judge then invited amicus to make submissions “in Ms. Babor’s interests”, during which amicus asked the trial judge to consider ordering a psychiatric assessment pursuant to s. 672.12(1) of the Criminal Code to determine whether Ms. Babor “could appreciate the nature and consequences of her actions”.
21The trial judge ordered the initial criminal responsibility assessment for a period of 30 days. A 30-day extension was ordered on October 16, 2020. On November 13, 2020, a further 30-day extension was ordered. The report was ultimately completed by the assessing psychiatrist, Dr. Julian Gojer. Dr. Gojer’s assessment referenced the report of Dr. Justine Joseph, a psychologist3. Dr. Gojer’s report was made available to the parties and to the court by December 11, 2020.
22Upon receiving the report, Ms. Babor requested an adjournment of the matter to retain counsel. The trial judge declined to adjourn the matter and directed the parties that he would first determine whether the actus reus had been made out by the Crown and that Ms. Babor could make any further submissions if she wished.
23The trial judge gave his decision orally on January 29, 2021. He found that the Crown had, on the record, established the actus reus beyond a reasonable doubt. The trial judge found that Ms. Babor authored and sent the emails. She persisted in sending them repeatedly despite having been warned by police that further emails may result in charges being laid. While the emails varied in content and tone, the trial judge found that Ms. Babor was communicating to the complainant that she was in love with him and wanted to have sex with him. The trial judge found that the email messages constituted repeated communication, that the complainant was harassed by these emails, that they caused him to fear for his safety, and that his fear was reasonable in the circumstances.
24He stated, however, that:
Acting in the finest traditions of his office, the Crown requested an assessment in respect of whether a s. 16 defence ought to operate here. That assessment, though completed, is incomplete because the assessor required findings of fact to be made by this Court, which have now been made.
Despite Ms. Babor’s objections, I wish to engage in further litigation on the mens rea issue. In every respect but one Crown has proved this case beyond a reasonable doubt. The evidence is overwhelming that Diana Babor harassed [the complainant] by repeatedly engaging with him despite it being made clear that he wished to have nothing to do with her. [The complainant] felt harassed, intimidated and fearful. His emotions in that respect were entirely reasonable in all the circumstances.
Further evidence with respect to Ms. Babor’s mental state is required. The evidence suggests that she suffers from some form of mental health impairment. It could be erotomania. It could be something else. There is enough evidence before me to pique my interest in that regard and I wish to have a hearing about whether s. 16 ought to operate such that a full finding of guilt is inappropriate. This shall involve the forensic psychiatrist who conducted the assessment presently before the Court. Ms. Babor, of course, will be afforded the opportunity to both cross-examine that assessor and to present any relevant evidence as she sees fit.
25The matter was then adjourned so that a hearing to determine the s. 16 issue (i.e., the defence of NCR by reason of a mental disorder) could take place. As described below, it was the above-noted language used by the trial judge that gave rise to some confusion.
26Ms. Babor retained counsel again. That counsel submitted to the trial judge that the decision of the Supreme Court in R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, prohibited the advancement of a s. 16 defence over the objections of an accused unless the accused had put their mental capacity in issue or a finding of guilt had been made. In effect, counsel submitted that until the trial judge found that the Crown had proven mens rea beyond a reasonable doubt, the court could not proceed to determine the issue of criminal responsibility.
27The trial judge acknowledged that he “inadequately or wrongfully communicated the Court’s position”. He acknowledged the principles established in Swain, but observed that he wished to investigate the subject of mens rea because there was a broader principle of justice at work, specifically that individuals who lack the capacity for mens rea due to a mental disorder should not be convicted. However, he stated that it was ultimately shown beyond doubt that Ms. Babor harassed the complainant and that she “had a basic mens rea about what she was doing”.
28Accordingly, the trial judge issued an Addendum to Decision in which he stated that: “I have reflected on my reasons already issued in this matter. I have decided to issue this addendum as I see that I unfortunately used sloppy language and have created uncertainty about where things lay.”
29After noting that an assessment of the mental condition of the accused had been requested by trial amicus (i.e., not the Crown), that the request was unopposed by the Crown, and was then ordered, the trial judge clarified his earlier decision by stating the following:
It was and is clear that the Crown had proved all essential elements of the offence beyond a reasonable doubt. I should not have expressed myself the way I did in my earlier decision. I was confusing the verdict question with the appropriateness of proceedings post-verdict in the face of possible mental health disability.
In other words, having heard all of the evidence and submissions from both sides, I would find Ms. Babor guilty. Nonetheless, I remain curious about whether a mental health issue exists in a way relevant to whether the matter should remain in the criminal sphere to the end.
The s. 16 Hearing
30The s. 16 hearing then took place. By that time, Ms. Babor was once again self-represented. Dr. Gojer, the assessing psychiatrist, gave evidence and opined that Ms. Babor was suffering from a delusional disorder with erotomanic and persecutory components. He concluded that she suffered from a persistent depressive disorder and had a personality with obsessive-compulsive features. In his opinion, however, Ms. Babor’s illness did not interfere with her capacity to appreciate the nature and quality of her acts but did interfere with her ability to know that her acts were wrong.
31Due to her illness, in Dr. Gojer’s opinion, Ms. Babor interpreted the complainant’s actions in a sexualized manner and developed the delusional belief that he was interested in her. Due to this delusional disorder, she was unable to exercise rational choice and did not believe that she had done anything legally or morally wrong.
32Ms. Babor exercised her right to cross-examine Dr. Gojer. Part way through that examination, the trial judge terminated it, noting that: “cross-examination by Ms. Babor of the witness will add nothing useful to the disposition of the issue before the Court.”
33Ms. Babor then requested and was granted an opportunity to contact Dr. Joseph (the psychologist whose report had been considered by Dr. Gojer) regarding her desire to have Dr. Joseph assist her to prepare and/or testify, although that would apparently have required an adjournment of the hearing as Dr. Joseph was not immediately available. The trial judge determined that “nothing could possibly be gained from the involvement of Dr. Joseph, who was a contributor to the Gojer opinion to be sure, but is not in any way pivotal to it”.
34Ms. Babor also asked whether she was supposed to give evidence. The trial judge replied: “[w]ell, you may but Ms. Babor, I cannot conceive of how that would be in your best interests”. She did not testify.
35Following submissions from Ms. Babor as well as the Crown on s. 16, the trial judge found that Ms. Babor was suffering from a mental disorder at the time of the events: delusional disorder with an erotomania and persecutory component, combined with persistent depressive disorder, such that she was incapable of knowing that her actions were wrong.
36Accordingly, Ms. Babor’s matter was referred to the Ontario Review Board for disposition. As noted at the outset of these reasons, Ms. Babor received an absolute discharge by the Board on May 17, 2023, almost three years prior to the hearing of this appeal.
Issues on Appeal and Analysis
37As noted above, Ms. Babor and appeal amicus submit that the trial judge made seven procedural errors and one substantive error. They also submit that there is one overarching issue that permeated the proceeding below.
38The alleged procedural errors are these:
a. trial amicus and the Crown ambushed Ms. Babor with the NCR assessment application;
b. the trial judge conducted an inquisitorial proceeding guided by an improper legal principle;
c. the trial judge ordered extensions of the NCR assessment in excess of the aggregate time limit imposed by the Criminal Code;
d. the trial judge improperly terminated Ms. Babor’s cross-examination of Dr. Gojer;
e. the trial judge improperly determined that Dr. Joseph had no material evidence to give;
f. the trial judge improperly discouraged Ms. Babor from testifying in her own defence; and
g. the trial judge failed to assist Ms. Babor during closing submissions.
39The alleged substantive error is that the trial judge failed to consider the conclusions of Dr. Joseph in arriving at the NCR verdict.
40While appeal amicus raised an additional issue in his factum about whether the trial judge erred in concluding that Ms. Babor was not capable of knowing her acts were wrong, amicus confirmed in oral argument that he would not be pursuing this ground of appeal.
41Finally, Ms. Babor also seeks to introduce fresh evidence consisting of Dr. Joseph’s report as well as her notes regarding her assessment of Ms. Babor. The Crown does not oppose the admissibility of this evidence.
42I address each of these issues in turn, together with the one additional overarching issue.
Overarching Issue: the Trial Judge’s Assistance to the Appellant as a Self-Represented Accused
43Ms. Babor and appeal amicus raise one overarching issue and submit that the trial judge failed to properly or adequately assist the appellant during those periods when she was self-represented.
44As noted above, this was an extremely challenging trial involving an equally challenging litigant. The procedure adopted and the language used by the trial judge was at times confusing and created some uncertainty as to the status of the proceeding. Indeed, it necessitated the trial judge’s Addendum to Decision.
45However, a fair reading of the record reflects a proceeding in which an experienced trial judge was doing his best in extremely challenging circumstances to balance his duty to afford the appellant a fair process, while at the same time managing that process and keeping it on track.
46There can be no issue that the trial judge was alive throughout to his obligation to assist the appellant as a self-represented litigant. The law is clear that a trial judge has a duty to assist a self-represented accused and to guide them throughout the trial so that their defence is brought out with its full force and effect: R. v. Forrester, 2019 ONCA 255, 375 C.C.C. (3d) 279, at para. 15; R. v. Bancroft, 2024 ONCA 121, at paras. 6-8; and R. v. Davis, 2026 ONCA 198, at paras. 17-21.
47Failure to assist a self-represented accused is not an independent ground of appeal, but raises the possibility of an unfair trial or miscarriage of justice that may attract appellate intervention under s. 686(1)(a)(iii) of the Criminal Code. It is the cumulative effect of any errors that the court needs to consider: Forrester, at para. 17.
48I agree with the Crown that the trial judge made significant efforts throughout the proceeding to achieve the required balance. Among other things, he:
appointed amicus and relied on amicus to advance the appellant’s interests, which they did;
assisted the appellant by repeatedly explaining the elements of the offence with which she was charged, and how she could call relevant evidence and what sort of evidence was likely to assist her;
granted numerous adjournments for the appellant to prepare for trial and for the NCR hearing;
explained what an NCR assessment was and invited her to make submissions with respect to the relevant issues; and
gave the appellant a full opportunity to make submissions, both on the trial outcome and on the NCR finding.
49I agree with the Crown that the trial judge extended a reasonable and appropriate amount of assistance to the appellant when she was self-represented in often difficult circumstances. Accordingly, this issue has no traction.
Procedural Error #1
50With respect to the first alleged procedural error, I am not persuaded that amicus or Ms. Babor were ambushed or surprised by the NCR assessment application.
51Amicus on this appeal submits that it is apparent from the record that the possibility of an NCR assessment had been discussed between trial amicus and the Crown but not with Ms. Babor, who was therefore ambushed by the application and did not appreciate what was involved or the consequences which could arise from such an application. Amicus submits in his factum that the appellant was repeatedly “shut down” by the trial judge when she tried to make submissions on this point such that “[a]t no point did her arguments get a fair hearing.”
52I do not accept this ground of appeal.
53As noted above, amicus initially raised the issue of an assessment under s. 672.12(1) of the Criminal Code, which the Crown then joined.
54Pursuant to s. 672.12(1), the court is entitled to make an assessment order “at any stage of the proceedings against the accused”, on its own motion, on application of the accused, or in some circumstances, on application of the Crown. Doing so does not, in my view, have the effect of raising the issue of NCR prior to verdict contrary to the principles in Swain: R. v. Faire, 2020 BCCA 110, 386 C.C.C. (3d) 312, at paras. 39, 43.
55While in this case, amicus initially raised the issue of the assessment, the trial judge explicitly stated that he would have raised it on his own motion (as s. 672.12 contemplates) had it not been raised by counsel.
56Furthermore, the record supports the finding that the court had reasonable grounds to believe that an assessment was necessary in the circumstances, as required by s. 672.11 of the Criminal Code. Section 672.11 requires that there be reasonable grounds to believe that evidence of the accused’s mental condition is necessary to determine if the accused is exempt from criminal liability: R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, at para. 49.
57In my view, the appellant’s testimony at trial clearly established a basis for the trial judge to conclude that her mental capacity for criminal intent was in question.
58For example, the complainant testified that on June 21, 2017, he encountered the appellant on the street and upon noticing her, he turned and walked away. Her evidence, on the other hand, was that time stood still, she and the complainant locked eyes for an extended period of time, and the complainant then used a hand gesture to mimic getting an erection.
59The conclusion of the trial judge that this factual dispute was a manifestation of a delusion was reinforced by an email the appellant sent to the complainant some months later in which she described hearing the complainant make a reference to masturbating on a Tuesday morning. The parties had not even been together on that date.
60That email increased the trial judge’s concern that the appellant had the capacity to conjure from her imagination amorous interactions with the complainant. That concern was reinforced by the appellant’s closing submissions, where she referenced her own arrest in 1994. The corresponding fitness assessment and report done at that time, issued by the then Queen Street Mental Health Centre, concluded that there was ample evidence of an “underlying major mental illness, i.e., delusional disorder, otherwise known as erotomania.”
61The record is clear that, following the conclusion of evidence, the trial judge had genuine concerns about the appellant’s mental capacity. The trial judge’s intention was clear on the record; namely, that he wanted to ensure that the appellant was not convicted in circumstances where she lacked the capacity for the requisite intention. Moreover, the trial judge understood, based on the appellant’s submissions, that she held the view that she was neither mentally ill nor delusional and that she opposed the NCR finding.
62Fundamentally, the evidence of Ms. Babor’s mental condition was overwhelming and amply supported the trial judge’s findings.Neither amicus nor Ms. Babor challenge those key findings on appeal. Nor could those findings be challenged.
63The trial judge understood and rejected Ms. Babor’s position that the complainant had invited her communications due to the ongoing sexual attraction he had for her. I see no error in how the trial judge approached that evidence. Deference is owed.
64Amicus assisted the appellant throughout the trial as best as could be done in the circumstances. Evidentiary objections were raised, Crown witnesses were effectively cross-examined, and amicus was available to the appellant for advice and information. Ultimately, the record supports the ordering of an assessment, which the court clearly would have ordered on its own motion regardless of the submissions of counsel. I would reject this ground of appeal.
Procedural Error #2
65With respect to the second alleged procedural error, amicus submits that the trial judge conducted an inquisitorial proceeding guided by an improper legal principle. The submission is essentially that the trial slowly turned from an adversarial to an inquisitorial process.
66A fair reading of the record belies this submission. Without question, there were multiple interjections by the trial judge. Again, however, I am satisfied that these were necessary to keep the proceeding on track. While the trial judge repeatedly had to intercede, the process was not inquisitorial in nature. I am satisfied on a review of the record that, but for those interjections, the proceeding would have continued indefinitely at each stage to no avail.
67While it is unquestionably the role of the trial judge to ensure a fair process, constraints on judicial resources as well as fairness can require in appropriate circumstances that a trial judge intervene to ensure that the proceedings unfolding before them are also efficient, focused and relevant to the issues to be determined. That is what occurred here.
68I am also satisfied that the trial judge did not misapprehend the import of the decision in Swain or that he proceeded pursuant to an incorrect principle. In Swain, the Supreme Court held that the common law rule permitting the Crown to adduce evidence of mental disorder over and above the wishes of the accused violated s. 7 of the Canadian Charter of Rights and Freedoms. However, the right of an accused to control his or her own defence, while a principle of fundamental justice, is not absolute.
69Ordering an assessment at any stage of the proceeding is consistent with ss. 672.11((b) and 672.12(1) of the Criminal Code and the principles set out in Swain. Following closing submissions, the trial judge asked amicus to make submissions “in Ms. Babor’s interests”, with particular reference to the required mens rea of the offence. It was during those submissions that amicus asked the trial judge to consider ordering an assessment pursuant to s. 672.12(1). The trial Crown agreed.
70As previously noted, there were ample grounds to make the order. Nothing in the chronology or in that order warrants appellant intervention.
71While the trial judge found himself in a position where he had to issue an Addendum to Decision in order to clear up some previous confusion, in the end, no harm was done and the same result was achieved.
72The appellant also argues that it was the trial judge who was pursuing the s. 16 defence over and above the objections of the accused.
73At the s. 16 hearing, the trial judge stated: “I invite counsel and Ms. Babor to consider, to the extent it is helpful, that the Court feels inclined in this case to raise the NCR issue, and the issue of onus is perhaps unimportant”. The Crown fairly concedes that the trial judge’s language with respect to onus was unfortunate and inaccurate. However, it is also evident, reviewing the record, that the Crown was already pursuing the NCR finding, and the trial judge understood that, in accordance with s. 16(3), the Crown bore the burden of displacing the presumption that Ms. Babor was not suffering from a mental disorder. I explain this in the following paragraphs.
74At the outset of the NCR hearing, the trial judge asked for the Crown’s position about where it saw the matter heading. The Crown and the trial judge then had the following exchange:
[TRIAL CROWN]: … At this juncture, I can indicate that I do have concerns, and I, unless the Court advises otherwise, I think this matter should be pursued. So that being said, with respect to....
THE COURT: This matter being an NCR hearing?
[TRIAL CROWN]: Yes, yes.
THE COURT: Very well.
75Shortly thereafter, the trial judge correctly stated that “the test of course is that Ms. Babor is presumed not to suffer from any mental disorder … until the contrary is proved on a balance of probabilities” and that “[t]he burden of proof most certainly does not fall on Ms. Babor”.
76Finally, when the trial judge invited submissions on the s. 16 defence, he said the following:
So now we are [at] the submission stage. So the Crown bears the onus. I said earlier that the Court would have brought this application, even if the Crown did not, but the Crown did, and so the Crown is endeavouring to discharge an onus here. You are presumed to [be] criminally responsible. In other words, for there to be a finding of NCR, not criminally responsible, the Crown must rebut that presumption on a balance of probabilities. Because the Crown bears the onus, I will call on the Crown first to make its submissions, and then I will hear from you [Ms. Babor].
77In response, Crown counsel submitted:
On that my submission is that, and Your Honour’s consideration is on a balance of probability, that there is evidence before the Court, and I would submit, evidence that is more than sufficient to establish that on this balance of probability Ms. Babor was at the time of the actions for which you found her guilty, and because of mental disorder, was unable to appreciate the moral wrongfulness of her action, and knowing that these actions were wrong. So what I will submit, Your Honour, is that on, obviously the burden is on the applicant. And I know Your Honour has discussed at the outset who was bringing the application, but I think in my submission, and in an effort to make that a little, this inquiry a little lighter, my submission is that if this were an application by the Crown, my submission is that I would have met the burden as the applicant to prove on a balance of probability that Ms. Babor should be, should be able to benefit from a defence of mental disorder, and be found not criminally responsible of the offences for which she has been, you have made a finding of guilt.
78In this particular case, the record reflects that, although Crown counsel used somewhat equivocal language, the trial judge understood that the Crown was pursuing the NCR finding, which was open for the Crown to do after the trial judge found Ms. Babor guilty of criminal harassment, and he properly understood the burden the Crown had to meet.
79Accordingly, I would reject this ground of appeal.
Procedural Error #3
80With respect to the third alleged procedural error, the extensions of the NCR assessment in excess of the permitted aggregate time limit, the assessment was first ordered on September 16, 2020, extended for 30 days on October 16, 2020 and then was further extended for 30 days on November 13, 2020.
81Prior to the November 13 extension, the assessing psychiatrist, Dr. Gojer, wrote to the court requesting an extension of the assessment order, noting the need for the appellant to undergo psychological testing and explaining that due to the COVID-19 pandemic, hospitals had been dealing with an increased volume of assessments. Importantly, the appellant consented to the further extension, and moreover, she was out of custody during that entire period.
82To the extent that the language of s. 672.15(2) of the Criminal Code is mandatory, the extensions here clearly exceeded 60 days in the aggregate, and this was an error. However, pursuant to the curative proviso in s. 686(1)(b)(iii), in my view no substantial wrong or miscarriage of justice resulted therefrom. I agree with the submission of the Crown that the overarching object and purpose of Part XX.1 of the Criminal Code is to ensure that the court has the evidence necessary to determine an NCR issue.
83In this case, there were compelling reasons to extend the order, but most fundamentally, the appellant consented to the extension and was not prejudiced thereby. Accordingly, the appellant suffered no prejudice as contemplated in s. 686(1)(b)(iii).
84I see no basis for appellate intervention on this ground.
Procedural Error #4
85The fourth alleged procedural error is that the trial judge improperly terminated Ms. Babor’s cross-examination of Dr. Gojer. The transcript is clear that the trial judge did cut off the cross-examination on the basis that the appellant was unable to ask focused questions or elicit relevant evidence. Amicus submits that the appellant had “hardly been given a chance”.
86I disagree. The transcript reflects that the questions were such that there was no prospect of eliciting relevant, probative evidence. I agree with the Crown that as she had done throughout the trial, the appellant remained focused on attempting to establish as fact her version of events in 1994 and 2002, which had already been rejected by the trial judge.
87I also note that by the time of this cross-examination, the trial judge had experience in dealing with this appellant for a period that exceeded two years during which he had observed first-hand her challenges in asking relevant, focused questions of multiple witnesses.
88Moreover, by the time of the cross-examination, the appellant had benefited from multiple adjournments for the purpose of preparing her cross-examination and to consult with counsel and amicus about how to pursue that cross-examination.
89I do not see any trial unfairness arising from the termination of the cross-examination. While the right of an accused to cross-examine witnesses for the prosecution is an essential component of a fair trial, that right is not unlimited or unfettered, and the trial judge is entitled to limit the pursuit of fruitless lines of questioning as part of their entitlement to control the proceedings: see e.g. R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 47-60; R. v. Snow (2004), 2004 CanLII 34547 (ON CA), 73 O.R. (3d) 40 (C.A.), at paras. 24-25.
90I am also not persuaded that the trial judge erred by not permitting, as is argued in the alternative, amicus to step in and continue the cross-examination. The record is clear that by this point, the relationship between the appellant and trial amicus had broken down. The appellant was already unhappy that amicus had raised the issue of an NCR assessment in the first place. In my view, further involvement by amicus would not have increased trial fairness.
Procedural Errors #6 and #7
91I address the sixth and seventh alleged procedural errors together: that the trial judge improperly discouraged Ms. Babor from testifying in her own defence, and that he failed to assist her during closing submissions. As noted above, when the appellant asked if she was supposed to take the stand and give evidence, the trial judge replied: “Well, you may but Ms. Babor, I cannot conceive of how that would be in your best interests”.
92Neither of these arguments can succeed. The trial judge did not prevent the appellant from testifying. She understood that she was entitled to do so, and that she could cross-examine other witnesses. In fact, when the appellant got discouraged and seemed to almost give up and attempt to consent to an NCR finding through exasperation, the trial judge refused to accept her concession and reminded her that she was entitled to cross-examine Dr. Gojer. There is nothing improper in a trial judge warning a self-represented accused, in appropriate circumstances, of the risks involved in testifying. Such circumstances were clearly appropriate here.
93In addition, the transcript reflects that the trial judge did offer the appellant assistance in her closing submissions at the s. 16 hearing. Among other things, she had been previously represented by counsel for the NCR hearing, had already been given a lengthy adjournment of several months expressly for the purpose of preparing her submissions, and the trial judge granted two further adjournments during the hearing so the appellant could speak with amicus and also with Dr. Joseph. She availed herself of both of those things. The Crown fully laid out the test for a defence under s. 16, and that occurred before the appellant was called upon to make her submissions.
94I would reject both of these grounds of appeal.
Procedural Error #5, the Substantive Error, and Motion for Fresh Evidence
95The fifth alleged procedural error is the same as the single substantive error alleged, and I therefore address the two together. Amicus and the appellant submit that the trial judge erred in improperly determining that Dr. Joseph had no material evidence to give and this affected overall trial fairness. In oral argument, the Crown agreed that the trial judge was wrong to conclude that Dr. Joseph did not have material evidence to give, but submitted that this error was curable.
96As noted above, Dr. Joseph was the psychologist who had assessed Ms. Babor at the request of Dr. Gojer. Her report is excerpted in the report of Dr. Gojer and it is uncontested on this appeal that after administering psychological tests, Dr. Joseph reached a different diagnostic conclusion from that of Dr. Gojer with respect to whether the appellant was delusional or psychotic at the time of the offence.
97The appellant seeks leave to file fresh evidence in the form of Dr. Joseph’s report and notes, on which she seeks to rely as part of her submission about trial unfairness.. Appeal amicus takes no position on the fresh evidence motion and the Crown does not oppose the admission of Dr. Joseph’s report.
98The discretion of an appellate court to admit fresh evidence derives from s. 683(1)(d) of the Criminal Code. As stated by this court in R. v. Jaser, 2024 ONCA 448, 172 O.R. (3d) 1, at para. 304, leave to appeal refused, [2025] S.C.C.A. No. 127 and R. v. Colley, 2024 ONCA 524, 172 O.R. (3d) 433, at para. 63, there are two categories of fresh evidence in which evidence is most often adduced under s. 683(1)(d).
99The first category is evidence that relates to a factual or legal determination made at trial, including rulings or the ultimate determination of the trier of fact. In those circumstances, the exercise of discretion to admit the fresh evidence is governed by the principles established in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, and the conviction must be set aside: R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R. 480.
100It is the second category of fresh evidence that is applicable here. In this category, the proposed evidence is not adduced for the purpose of challenging a factual or legal issue at trial; it is focused on the validity or fairness of the trial process: Colley, at para. 64. Here, the appellant seeks to admit the fresh evidence to assist the court in appreciating its relevance and importance to the s. 16 issue. The Palmer criteria are not necessarily applicable in this context. When fresh evidence is admitted on this basis, it does not automatically trigger a new trial. Instead, if the evidence is admitted, it must then be determined whether the substantive claims have been established: Jaser, at paras. 304-5.
101As the court found in Colley at para. 65, there is no principled basis to refuse the admission of the proposed fresh evidence here. It is relevant to important issues at trial. There is no suggestion that the evidence is unreliable, and the respondent had the full opportunity to test it. Accordingly, I have considered Dr. Joseph’s report.
102The trial judge determined that Dr. Joseph would have nothing useful to add to the proceedings and that direct evidence from her was not necessary. As a result, he was not prepared to adjourn the NCR hearing so that her evidence could be received (Dr. Joseph was apparently not available at the time).
103In my view, and in the particular circumstances of this case, the trial judge made a reviewable error in refusing to permit Dr. Joseph to testify before determining the NCR issue.
104I recognize that Dr. Joseph is a psychologist and not a psychiatrist or medical practitioner, and therefore not qualified to conduct a s. 672.12 assessment or opine on the ultimate question of criminal responsibility. Moreover, Dr. Joseph never provided an opinion on that ultimate issue in her report in this case.
105However, Dr. Joseph had conducted her assessment expressly at the request of Dr. Gojer to clarify her diagnosis and provide an opinion about risk. Dr. Joseph conducted numerous interviews with Ms. Babor and performed a number of psychological tests, ultimately concluding that Ms. Babor was not suffering from delusional disorder, but rather was suffering from major depressive disorder, trauma-related problems and obsessive-compulsive personality disorder.
106While Dr. Joseph’s report and conclusions were substantially before the trial judge, having been incorporated into and expressly referred to in Dr. Gojer’s report, and while that report expressly included her diagnosis and conclusions, in my view, the trial judge ought to have permitted Dr. Joseph to give evidence before determining the NCR issue.
107As noted above, this was clearly a challenging proceeding and it is equally clear that the trial judge was doing his best to keep the matter on track in a manner that was fair to the appellant. In addition, I should not be taken to be stating that oral evidence from all professionals whose inputs form part of an assessment report and opinion filed pursuant to s. 672.12 will always be required in an assessment hearing.
108I also note that Dr. Gojer expressly referred to Dr. Joseph’s opinion and explained why he reached a different conclusion. The trial judge was clearly aware of all of this. However, in the particular circumstances of this case, and given the difference of clinical opinion between the two professionals, the tension and animosity between the appellant and amicus, the fact that by this point in the proceedings the appellant was self-represented having dismissed successive counsel, it was an error for the trial judge not to have permitted the appellant to have the evidence of Dr. Joseph directly.
109However, in my view, that error can and should be cured under s. 686(1)(b)(iii) of the Criminal Code. There has been no substantial wrong or miscarriage of justice.
110Fundamentally, the position of the appellant was clearly before the trial judge and fully considered by him. He understood her position that she was not delusional, that Dr. Gojer’s opinion should not be accepted, and that Dr. Joseph’s opinion should have been preferred. The trial judge concluded otherwise, and this conclusion was amply open to him on this record.
111The trial judge had the benefit of Dr. Joseph’s opinion and was entitled to prefer the opinion of a qualified psychiatrist over that of a psychologist on the question of the appellant’s mental disorder and criminal responsibility. I am satisfied that even if Dr. Joseph had testified, the trial judge would inevitably have reached the same conclusion.
112An appeal lies from the judgment, not the reasons for judgment. It is clear in this case what the trial judge decided and why. An NCR finding is a question decided on a balance of probabilities: Criminal Code, s. 16(2). The fact that there was a differing opinion or competing inference that the trial judge could have accepted (and of which he was well aware) did not preclude a finding that the Crown had established to the requisite standard that the appellant was NCR.
113Here, when considering the record as a whole, it is clear that the evidence of the appellant’s mental illness and lack of capacity to assess the wrongfulness of her conduct was overwhelming. At the same time, the evidence before the trial judge as to the actus reus was also overwhelming and, but for the NCR finding, so too was the evidence of mens rea. There is no submission from either amicus or the appellant that could impugn those findings.
Disposition
114For all of these reasons, I see no basis to order a new trial (or to enter an acquittal). Nor do I see any basis to now set aside the NCR finding. That would mean that either the appellant would have a conviction for criminal harassment and be subject to sentencing afresh, or the NCR issue would be remitted back to the Superior Court, with the result that the appellant would again be subject to the Ontario Review Board system in which the outcome would remain to be determined. I see no purpose to be served in directing that to occur here where, as noted, Ms. Babor received an absolute discharge over three years ago.
115Accordingly, I would grant leave to admit the fresh evidence, but dismiss the appeal.
Released: June 17, 2026 "J.M.F."
"P.J. Osborne J.A." "I agree. Fairburn A.C.J.O." "I agree. P.J. Monahan J.A."
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
- Each of those successive counsel was either discharged by the appellant or brought a motion to be removed from the record because they could not act on her instructions.
- It is this report that is the subject of the fresh evidence motion.