R. v. Hannah, 2020 ONCJ 409

Court File and Parties

Court File No.: Toronto 19-1141797 Date: 2020-09-01 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Randy Floyd Hannah

Before: Justice David A. Fairgrieve

Heard on: November 25, 26, December 13, 2019; January 20, February 10, March 6, July 22, 2020

Reasons for Judgment released on: September 1, 2020

Counsel:

• Alexander Merenda, for the Crown
• Frank Bernhardt, amicus curiae
• Randy Floyd Hannah, defendant in person, not represented by counsel

FAIRGRIEVE J.:

Overview

1The primary issue in this case requires a determination of whether the Crown has established, on a balance of probabilities, that Mr. Hannah is not criminally responsible on account of a mental disorder ("NCR") for the offences of assault causing bodily harm and breaching the condition of probation that required him at the time to keep the peace and be of good behaviour. The offences in question involved an unprovoked and inexplicable assault on a young woman, a stranger to him, who was simply crossing a street on her way to work one morning last summer in midtown Toronto.

2There is a third count to which, it is agreed, the NCR issue has no application. That charge alleges that Mr. Hannah violated another condition of his probation order that prohibited him from possessing any incendiary devices, including lighters, a condition that had been imposed following earlier convictions for arson and mischief endangering life. He has not yet been sentenced for this breach of probation.

3The trial has followed an admittedly unusual course. When the trial, set for two days, commenced, the Crown elected to proceed summarily, and Mr. Hannah pleaded not guilty to all three charges. It might be noted that at the beginning of the trial, there was nothing in Mr. Hannah's appearance or demeanour that gave rise to any mental health concerns. He was courteous, calm, and answered questions put to him in a responsive, if succinct and sometimes monosyllabic, manner. His demeanour in the courtroom did not vary during his subsequent appearances.

4In addition, Mr. Hannah has consistently rejected all efforts to obtain legal representation for him. He has been adamant throughout the proceedings that he does not wish the assistance of a lawyer and has declined to obtain the Legal Aid certificate to which he would undoubtedly be entitled. Instead, he has insisted on his right to defend himself personally, without the assistance of duty counsel or any other lawyer acting on his behalf.

5The Crown called five witnesses at trial. After the evidence-in-chief given by each of them, Mr. Hannah stated that he had no questions to ask in cross-examination. At the conclusion of the case for the Crown, Mr. Hannah stated that the defence was not calling any evidence. Similarly, after Mr. Merenda, counsel for the Crown, made submissions that the evidence had proved all three charges beyond a reasonable doubt, Mr. Hannah indicated that he did not intend to make any submissions himself.

6Given the apparent absence of motive for the assault on a stranger and the observations of Mr. Hannah's bizarre conduct at the time, the Crown also applied for an assessment order, pursuant to s. 672.12(3)(b) of the Criminal Code, to determine if Mr. Hannah was suffering from a mental disorder at the time that exempted him from criminal responsibility. Findings were made that the Crown had proved beyond a reasonable doubt that Mr. Hannah had committed the acts constituting the three offences, and the assessment was ordered. At this point, Mr. Bernhardt was appointed as amicus curiae to aid Mr. Hannah and to make submissions defending his interests.

7The psychiatric report generated by the assessment order concluded that Mr. Hannah clearly suffers from a longstanding severe mental disorder. The differential diagnosis specified schizoaffective disorder – bipolar type and schizophrenia, as well as anti-social personality disorder. The report also stated, however, that based largely on the sparsity of the available information and Mr. Hannah's refusal to cooperate in the assessment process, the psychiatrist could not say what Mr. Hannah had been thinking at the relevant time. He therefore concluded that, on a balance of probabilities, the NCR "defence" was not available. At the same time, it might be observed, the psychiatrist also stated that he could not think of any non-psychotic explanation to account for the assault.

8The conclusion expressed in the psychiatric report caused the Crown to abandon the NCR issue it had raised earlier.

9Brief oral reasons were then given as to why, in the absence of any evidence being relied on by either party relating to the issue of criminal responsibility, the only reasonable inferences available compelled the conclusion that the requisite mens rea concerning the three offences had been proved beyond a reasonable doubt. Specifically, the evidence proved an intentional, non-consensual application of force in circumstances where Mr. Hannah must have foreseen the obvious risk of bodily harm. Similarly, the unchallenged evidence compelled a finding that he understood the conditions of probation by which he was bound and that he had intentionally engaged in the conduct that was prohibited, namely, by committing the assault causing bodily harm and by knowingly possessing the lighters in pockets of the layers of clothing he was wearing. Findings of guilt were made accordingly, and the case proceeded to sentencing.

10During the sentencing proceedings, which became quite protracted for a variety of reasons, the Crown filed additional material that had not been provided to the psychiatrist who had conducted the assessment. Specifically, the material consisted of a pre-sentence report from December 2017 following a conviction for mischief endangering life, different transcripts of earlier proceedings against Mr. Hannah, and a video of his booking by the police after his arrest for the current charges. Of particular significance, in my view, was the transcript of Mr. Hannah's guilty plea to a virtually identical assault charge in Ottawa in 2013 in which he had assaulted a woman in the street and where he seemed to demonstrate in court the next day that he remained in a floridly psychotic state, expressing delusional thoughts concerning the victim.

11During the period when trial courts were suspended because of the Covid-19 pandemic, teleconferences involving all parties took place. In apparent response to concerns that the psychiatrist had not been provided with all the relevant material earlier, the Crown confirmed that the psychiatrist had now received the documents and the booking video, and that the Crown intended to renew the NCR application that had previously been abandoned. The NCR hearing, including the viva voce evidence of Dr. Van Impe, the psychiatrist who had written the earlier report, proceeded as soon as a reopened court could be found in the Region. In his testimony, Dr. Van Impe stated, among other things, that the additional material that had been provided to him had not changed the opinion he had expressed earlier concerning the ultimate NCR issue.

12Given the provisions of s. 16(2) that presumes criminal responsibility until the contrary is proved on a balance of probabilities, and s. 16(3) that places the burden of proving NCR on the party raising the issue, it was accepted that the Crown bears the burden of proof in this case.

13Submissions were made at the conclusion of the NCR hearing which restated the positions taken by the parties. Crown counsel argued that despite Dr. Van Impe's opinion with respect to the ultimate issue, the evidence and inferences to be drawn dictated a finding that Mr. Hannah, on a balance of probabilities, suffered from a delusion at the material time that rendered him incapable of knowing his act was morally wrong, thereby exempting him from criminal responsibility for the assault causing bodily harm and the related breach of probation.

14Mr. Bernhardt, as amicus, submitted that the psychiatric evidence that was called supported a finding, again on a balance of probabilities, that Mr. Hannah's antisocial personality disorder accounted for his conduct. While he knew that it was morally wrong to assault the victim, he did not care, and whether out of anger or for some other personality-related reason, he proceeded to commit the offence anyway. Mr. Hannah made no submissions himself, although it can be inferred that he would adopt the submissions of amicus advocating convictions and dispositions that would involve no further custody.

15For the reasons that follow, contrary to the opinion stated by the psychiatrist in his report and repeated in his evidence at the NCR hearing, I am satisfied that the preponderance of evidence establishes that Mr. Hannah is indeed exempt from criminal responsibility, by reason of s. 16(1) of the Criminal Code, for the assault causing bodily harm with which he is charged and for the breach of probation associated with the assault. To be more specific, I am persuaded, on a balance of probabilities, that at the time he committed the act constituting that offence, it is probable that his mental disorder not only led to a delusion that caused him to assault the victim, but it also rendered him incapable of knowing that his conduct in the circumstances was morally wrong, within the meaning of s. 16(1) as interpreted by the Supreme Court of Canada in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, and R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, and as applied in many appellate decisions that have followed.

16I should acknowledge that it is highly unusual to reach a verdict of not criminally responsible on account of mental disorder under s. 672.34 of the Code without having heard expert evidence from a psychiatrist expressing the opinion that a NCR defence is available. At the same time, it is not completely unprecedented. Reference will be made to R. v. Quenneville, 2010 ONCA 223, and to R. v. Brown, 2012 ONSC 2942, later in these reasons. I should also add that it is obvious that merely rejecting the NCR opinion given by the only expert who was called to testify does not in any way justify reaching an NCR verdict. Rather, such a result requires a conclusion, based on the totality of the evidence, on a balance of probabilities, that all of the requirements of s. 16(1) have been met, without the necessity of ordering a second assessment or obtaining a different psychiatric opinion. The focus in this case became the "wrongfulness inquiry" mandated by the second branch of s. 16(1).

17It might also be appropriate to note that in R. v. Capano, 2014 ONCA 599, the Court of Appeal harshly criticized the conclusory finding made by the trial judge in that case who simply stated that an NCR verdict was warranted based on the evidence he had heard. Epstein J.A., for the Court, held that the summary conviction appeal judge had erred in law when she failed to find that the reasons given by the trial judge were insufficient because they did not explain to the parties or the public why he reached the conclusion he did, nor did the reasons facilitate appellate review. At para. 80, Epstein J.A. stated the following:

… I am of the view that in cases such as this, in which the person most affected by the trial judge's conclusion is vulnerable and is involved in a process in which he faces the loss of his liberty for an indefinite period of time, particular attention must be given to ensuring that the reasons fulfil the first rationale – that they tell the accused why the decision was made. In these circumstances, focusing on the first rationale is a way of contributing to the rights of individuals such as [the appellant] to [have] access to justice and to their right to accommodation for their disability.

In the present case, I accept that I am required to provide reasons that explain my conclusion to Mr. Hannah or anyone acting on his behalf, and to the public at large. Moreover, there is an obligation to give reasons that would assist an appellate court in determining whether the findings reflect factual or legal errors. I propose to summarize the evidence that was called, review the case law pertaining to the essential issues that emerged, and then explain my findings, recognizing that the civil standard of proof, by its very nature, involves a determination of what is probable, not what has been established with certainty.

The Evidence Called to Prove the Charges

18As already stated, the Crown's case consisted of the evidence of five witnesses: the victim of the alleged assault, two civilian witnesses who observed the event and identified Mr. Hannah as the assailant, the police officer who arrested him several blocks away shortly afterwards, and the probation officer who had been supervising Mr. Hannah in the community for the previous eight months. Again, to repeat it, none of the evidence called by the Crown was challenged by any cross-examination nor contradicted by any other evidence, and there appeared to be no reason to doubt the credibility of the witnesses or the reliability of their evidence. The nature of the assault and the circumstances in which it was committed were, of course, relevant to the NCR issue that eventually arose.

19The 30-year old victim, Allison Kinnaird testified that on the morning of June 20, 2019, she was crossing Avenue Road at Bloor Street on her way to work, when she heard an "angry, scary voice" immediately before she was punched in the face "out of nowhere" by a person coming toward her. She felt the impact of the blow to the right side of her face in the area of her eye, but was unable to say who had struck her. Photographs taken a couple of hours later at the hospital were filed as exhibits, showing swelling to her cheekbone and nose and other injuries to her face. Ms. Kinnaird testified that although her nose was not broken, the internal bleeding interfered with her breathing and the painful, visible injuries persisted for a period of weeks. There was no dispute that the injuries that were inflicted constituted bodily harm, within the meaning of s. 2 of the Code.

20Antonio De Firenza, also on his way to work, testified that when he walked east on Bloor Street, at the intersection of Avenue Road, from a distance he estimated to be about 30 feet ahead of him, he heard a noise he described as loud shouting or "growling" by a "dishevelled" man walking westbound. About halfway across the intersection, Mr. De Firenza testified, he saw the person he identified as Mr. Hannah raise his right forearm and use his fist to strike the victim with full force in the face. According to his evidence, Mr. Hannah said nothing and continued to walk ahead. He testified that the woman fell "like a ton of bricks," crying and shaken, with blood all over her face. Mr. De Firenza stayed with her, along with other witnesses, until the police arrived. Mr. De Firenza also testified that immediately after the assault, Mr. Hannah made a noise and moved quickly to the west, making threatening gestures so that people got out of his way. Mr. De Firenza called 911 from the nearby McDonald's to which the victim had been taken, and he saw police cars speeding by, apparently in response to the numerous calls that had been made.

21Michael Arduini, a pharmaceutical sales manager, testified that he was stopped behind other vehicles at the red light going east on Bloor Street when he heard the person, later identified as Mr. Hannah, yelling loudly. He could also see the victim in obvious distress, being assisted by other people who were pointing at the accused, the only individual in the area, about 10 feet west of the intersection. Mr. Arduini made a U-turn and followed Mr. Hannah, describing his clothing and his unkempt appearance, which he relayed to the 911 operator. He testified that Mr. Hannah continued to yell loudly as he walked west, sometimes looking back. At around Bedford and Bloor, he rolled down his window and asked Mr. Hannah if he had just assaulted the woman, to which the defendant "just smirked and kept walking," making what the witness described as "unusual facial gestures". Having called 911, Mr. Arduini observed the arrest by the police of the person he had been following. At that time, he testified, Mr. Hannah was still yelling and violently resisting the arrest.

22P.C. Shane Colton testified that he was dispatched in response to numerous calls and was provided with a description of the assailant and his clothing. Flagged down by Mr. Arduini, he was directed to Mr. Hannah who, fitting the description, was walking west, flailing his arms, yelling and "acting erratic". Mr. Arduini confirmed that Mr. Hannah was the man he had followed from the scene. The officer then arrested him for assault. P.C. Colton testified that Mr. Hannah resisted violently by kicking at him, but other officers arrived and assisted him in subduing the accused.

23P.C. Colton also testified that when Mr. Hannah was booked at the police station, he was found to be wearing several layers of clothing, including multiple jackets. During the "level 3" search that was conducted, two lighters were located, one in a pants pocket and one inside a jacket pocket. The officer did not testify as to any observations he made that indicated any signs of consumption or impairment due to alcohol or other intoxicants. A video of the various stages of the booking process, while not filed on the trial proper, was later played during the NCR hearing. It appeared to show Mr. Hannah talking to himself, which Dr. Van Impe in his oral testimony regarded as evidence that Mr. Hannah was psychotic at that time, but the quality of the audio was very poor and it was impossible to understand what he was saying to himself.

24The final Crown witness, Chris Broughton, testified that he had been Mr. Hannah's probation officer since November 2018 when he was released after serving the custodial part of the sentence imposed in Oshawa on December 8, 2017, following his guilty plea to mischief endangering life that had involved repeatedly interfering with gas lines that caused leaks and the risk of explosions. He testified that he met with Mr. Hannah then and reviewed with him the conditions of the probation order, filed as an exhibit, and explained to him his right to apply to vary those conditions. The probation order, to be in effect for three years, included both the statutory condition to keep the peace and be of good behaviour, and the condition that he not possess any incendiary devices, including lighters. According to Mr. Broughton's evidence, Mr. Hannah verbally conveyed his understanding of the conditions, and he continued to report to him every two weeks before his arrest in June 2019 on the current charges.

The Evidence Called on the Sentencing

25As already stated, after Dr. Van Impe's written report was received and the Crown abandoned the NCR issue it had raised earlier, the case proceeded to a sentencing hearing. The Crown sought a reformatory sentence of 18 months and 3 years' probation. While it was recognized that 18 months is the maximum period of imprisonment for both assault causing bodily harm and breach of probation when the Crown proceeds summarily (s. 267 and s. 733.1(b), respectively), the Crown's position did not specify how the recommended sentence should be apportioned among the counts or whether consecutive sentences would be appropriate.

26The Crown then attempted to tender what purported to be Mr. Hannah's prior criminal record, said to consist of over 30 convictions and numerous sentences of imprisonment. Mr. Hannah declined to admit that the CPIC record was accurate. It should be added that, at that time, it was not understood that Mr. Hannah was illiterate and likely incapable of reading the document that amicus presented to him. In the absence of an admission by the self-represented accused that the criminal record was accurate, I ruled that the Crown would have to prove the previous convictions in accordance with s. 667 of the Criminal Code and s. 23 of the Canada Evidence Act. (Given R. v. Albright, 1987 CanLII 26 (SCC), [1987] 2 S.C.R. 383, at para.14-15, the ruling was likely in error.) Before the sentencing was adjourned to allow the Crown to prove the record, further material was filed by the Crown, with the agreement of amicus and with Mr. Hannah saying he had no objection.

27This material included the victim impact statement of Ms. Kinnaird describing the physical and emotional trauma she suffered as a result of the assault. Relevant to the sentencing rather than the NCR issue that was later revisited, she stated that being assaulted by an apparently homeless and unstable person had left her anxious and fearful, even when she was teaching in South Africa shortly after the offence. She reported that she found it necessary to seek psychological counselling and that she no longer feels safe in the community in areas where people with apparent mental health issues are present.

28The new material also included a number of documents from the Crown brief that had not accompanied Mr. Hannah when he was remanded for purposes of the psychiatric assessment. The additional material included a pre-sentence report dated December 5, 2017, that had been prepared for the sentencing in Oshawa in relation to the mischief endangering life offence. It set out in considerable detail his prior record, background, and experience while subject to community supervision pursuant to many separate probation orders starting in 2011. The report also documented multiple unsuccessful efforts to make appropriate psychiatric referrals during those years.

29The Crown also filed five transcripts from different court proceedings involving earlier guilty pleas by Mr. Hannah and the sentencings that had followed. Among other things, the transcripts showed that Mr. Hannah has repeatedly adopted the same pattern of disengagement and non-communication that he displayed in the present case, clearly frustrating the efforts made by medical and legal professionals attempting to understand and assist him. The most significant of the transcripts, it seemed apparent, involved a guilty plea and sentencing in Ottawa on May 17, 2013. In that case, not only were the facts of the offence to which Mr. Hannah pleaded guilty remarkably similar to the present assault (another unprovoked attack on a woman in the street, a stranger to him), but the proceedings in court the next day seemed to demonstrate that Mr. Hannah remained in a floridly psychotic state when he offered a completely delusional explanation for his conduct. I will review the contents of the transcripts in some detail.

The Psychiatric Assessment

30The assessment order, made on the application of the prosecutor, led to Mr. Hannah's admission to the Waypoint Centre in Penetang on December 18, 2019. The report by Dr. J. Van Impe, a consultant psychiatrist in the High Secure Provincial Forensic Programs Division, dated February 7, 2020, was filed as an exhibit. As already stated, its conclusion that the NCR exemption was not available to Mr. Hannah led the Crown to decide on February 10 not to pursue the NCR issue any further.

31In his written report, Dr. Van Impe stated that Mr. Hannah had previously been admitted to Waypoint in 2012 to assess his fitness to stand trial and his criminal responsibility for offences he was charged with then. Dr. Van Impe stated that he explained to Mr. Hannah that any information provided by him would not be confidential, as well as the fact that he would be providing a report pertaining to the issue of criminal responsibility. Dr. Van Impe went on to state that "Mr. Hannah understood this information and clearly appreciated that he had the right to refuse to cooperate, which he did on every occasion."

32At p. 2 of his 13-page report, Dr. Van Impe listed the sources of information that were available to him prior to completing his assessment. These included various clinical records from 2013, including the report of Dr. Kolchak at Waypoint, and then clinical records from St. Joseph's Health Centre between 2014 and 2018 and a clinical record from the St. Michael's Mobile Crisis Intervention Team dated June 9, 2019, i.e.,11 days before Mr. Hannah's current custody began. In addition, Dr. Van Impe was provided with e-mailed copies of witness statements in relation to the current charges, Mr. Hannah's criminal record, his health care record from the Toronto South Detention Centre dated June 21 to October 7, 2019, and then the "psychosocial assessment" by a social worker at Waypoint dated January 15, 2020.

33At p. 3, Dr. Van Impe stated that "given Mr. Hannah's unwillingness to participate in interviews during his current admission and the relative sparsity of collateral information," he culled Mr. Hannah's psychosocial history from the 2013 report and noted that Mr. Hannah's social circumstances since that time were unknown. As already stated, it turned out that, through oversight, much of the material in the Crown's file, including the 2017 pre-sentence report and a number of transcripts of Mr. Hannah's various court proceedings during the intervening years, had not been provided to Waypoint to assist in the assessment process.

34Without repeating all the details stated by Dr. Van Impe (at pp. 3 to 8 of his report), the psychosocial history that had been prepared at Waypoint in 2013 documented that Mr. Hannah, born in 1982 (so now 38), was raised by a single mother in Peterborough. He was diagnosed with ADHD and limited intellectual capacity at an early age, reportedly failing kindergarten and Grade 1. Leaving high school for a short-lived job at a bagel shop (his only employment experience), he has collected ODSP and remained on disability assistance since the age of 19. He has generally resided in boarding houses or utilized the shelter system when homeless.

35Dr. Van Impe noted that Mr. Hannah refused to provide any information about his past substance use or whether substance intoxication or withdrawal might have been a factor in relation to the current offences.

36Dr. Van Impe also referred to health care records indicating that Mr. Hannah had been taken by police twice to the emergency department at Lakeridge Health in 2011. On one occasion, it was stated that he had been found crossing the 401 basically naked, but because he had only "vague delusions" that the police were watching him and he refused to offer any useful information or take any medication, he was hospitalized only briefly. At Waypoint in early 2013, Mr. Hannah was found fit to stand trial on charges including assault, uttering threats and mischief, and Dr. Kolchak, the assessing psychiatrist at the time, found that he did not qualify for an NCR defence.

37In October 2014, Mr. Hannah was taken on a Form 1 from the Toronto South Detention Centre, where he had been detained on break and enter charges, to the emergency department of St. Joseph's Health Centre because, it was stated, he was angry, talking to himself, and engaging in bizarre behaviour, including playing with his urine and feces, urinating on his clothes and in his food, as well as episodes of yelling and threatening staff. On examination at St. Joseph's, Mr. Hannah refused to answer questions or to be assessed. He allegedly threatened to kill a nurse and her family and required six people to put him in restraints. Because he denied, however, any psychotic symptoms or using substances, and since he again refused to participate in the assessment, it was stated that "it was unclear whether there was any delusional content." He was discharged back to the TSDC which was believed to be better equipped to address his aggressive conduct. Dr. Van Impe's report repeated that diagnostic considerations at that time included antisocial personality disorder and/or psychosis not otherwise specified.

38In November 2018, i.e., 4 years later, Mr. Hannah was taken to St. Joseph's after being released from the TSDC following 6 months' incarceration (resulting, one can infer, from the custodial part of the sentence imposed in Oshawa for mischief endangering life). TSDC documentation indicated "that he had been responding to internal stimuli, was paranoid, and not cooperative." Dr. Van Impe's report also recorded that at that time "Mr. Hannah was stated to have a history of antisocial personality disorder, possible schizoaffective or delusional disorder and borderline intellectual functioning," but since his mood was euthymic, his thought process was logical and coherent, and he denied any abnormal perceptions, the Form 1 was rescinded and he was discharged.

39On June 9, 2019 (11 days before the current offences), the St. Michael's Hospital mobile intervention team was contacted because Mr. Hannah appeared to be homeless, "walking around screaming at everyone." When located in a park, Mr. Hannah was described as uncooperative and "suspicious/guarded," but there were no problems identified with his thought process or content, and he refused any support.

40With respect to Mr. Hannah's detention at the TSDC between his arrest on June 20, 2019, and his admission to Waypoint for the current assessment on December 18, he was initially described as "polite, calm and cooperative" and "well-groomed, logical and coherent." The TSDC file apparently indicated that Mr. Hannah had been seen at the Central East Correctional Centre in 2018, where Dr. Wesley had observed "ongoing evidence of psychosis," noting Mr. Hannah "was dismissive, hostile and talking to himself," that he quickly began screaming and yelling, "I'm going to fucking kill you," and ran at the door. Dr. Impe stated that the diagnostic impression on June 26, 2019, was unclear, but that "the differential diagnosis included major mental illness, substance-induced mental illness, substance use disorder and personality disorder." On July 5, 2019, Mr. Hannah was said to have presented again with a euthymic affect, but refused to engage with staff on multiple occasions, simply stating, "I have no reason to talk to you." Also on that date, however, Mr. Hannah was recorded as being agitated and "… appearing to be experiencing auditory hallucinations. He was yelling 'who the fuck are you?' and 'you're going to jail – how do you have my information?'." Dr. Van Impe noted that the diagnostic impression at the TSDC on July 8 was stated to be schizophrenia.

41When seen at Waypoint, Mr. Hannah conveyed to Dr. Van Impe that he understood the reason for his admission to the facility, but that he had no interest in participating in the assessment. Dr. Van Impe said, "I viewed Mr. Hannah's lack of cooperation as being completely volitional and not the result of untreated psychiatric symptoms such as thought disorganization, thought blocking or poverty of thought content." Mr. Hannah was quoted as stating that he had pleaded innocent, and "Why would I talk to you about something I didn't do?", refusing to provide any information about the assault, simply stating "I'm done talking."

42Dr. Van Impe reported (at p.8) that throughout his admission, Mr. Hannah's hostility persisted and he became increasingly easily agitated, glaring angrily at staff and was often observed "responding to internally generated stimuli." Under the heading "Mr. Hannah's Self-Report During Interviews" (at pp. 10-11) Dr. Van Impe stated that Mr. Hannah repeatedly made it clear that he had no desire or willingness to participate in the NCR assessment. On January 15, 2020, Dr. Van Impe observed that "he presented as quite paranoid, irritable and easily agitated… often responding to internal stimuli… and yelling out threats to persons unseen." He referred to the psychiatrist as "a fucking retard," "a fucking idiot" and a "jackass," and refused to take any medication to reduce his level of irritability. When the final attempt to assess Mr. Hannah was made on February 6, 2020, he maintained his refusal to speak about the assault and told Dr. Van Impe, "Take a fucking hint, you fucking loser… we're done here … fuck off."

43Under the heading "Diagnostic Impression" (at p. 11), Dr Van Impe stated the following:

…I have formed the clinical opinion that Mr. Hannah suffers from a severe mental disorder with prominent psychotic and affective components. The differential diagnosis will consist of Schizoaffective Disorder – Bipolar type and Schizophrenia.

… I do not believe Mr. Hannah has a purely substance-induced psychotic disorder and if substance use is an issue I would consider it to be an exacerbating factor as opposed to a causative one with respect to his symptomatology.

I would also echo the clinical impression of several previous psychiatrists who have offered the opinion that Mr. Hannah has Antisocial Personality Disorder.

44Dr. Van Impe's opinion, under the heading "Assessment of Criminal Responsibility" is set out at p. 12 of his report. It warrants quotation in full:

With respect to the charges that resulted from Mr. Hannah's alleged conduct on June 20, 2019, I am of the opinion that he would not have a defence of not criminally responsible available to him for the following reasons:

(1) I do not believe that Mr. Hannah was experiencing signs and symptoms consistent with a mental disorder at the time of the offence and base this opinion on information provided by witnesses to the offence and police officers. He was noted to be yelling at no one in particular in advance of the offence and was described as "jittery and agitated." However, we have no information about the actual content of his thoughts at the time of the offence. Unfortunately there does not appear to have been any statement given by Mr. Hannah to police around the time of the offence. We also have no information about any substance use that may have been a factor at the material time. He was assessed in custody five days after the index offence and was noted to be well-groomed, logical, coherent, calm and cooperative. This does suggest the possibility that his mental state at the time of the offence on June 20, 2019 was exacerbated by substance use.

(2) Mr. Hannah was entirely uncooperative throughout the entire assessment process. He did not provide me with any information that would permit me a better understanding of his thought content or process at the material time. He would not discuss the offence in any detail and instead consistently denied being involved in the offence. He did not express any delusional or unusual thoughts focused on the victim.

(3) I certainly do not have a non-psychotic explanation for the index offence, but I also do not have a clear psychotic motive. I am left with no idea as to what Mr. Hannah was thinking as the offence unfolded. He apparently did not know the victim which makes the offence somewhat unusual and apparently did not try to steal anything from her. However, he fled the scene and appeared to appreciate that what he had done was wrong. He did not provide me with any explanation for the offence that suggested that he did not appreciate the moral wrongfulness of his actions. He clearly did not want to be arrested as evidenced by his conduct with the arresting officer. The resistance could be evidence that he was paranoid of the police officer or could simply have been him acknowledging that he had done something wrong and not wanting to be held accountable for his conduct.

(4) The assessment of criminal responsibility for these offences was hindered by the relative sparsity of information that was provided for the purpose of conducting the assessment. Of greatest significance was the absence of any statement from Mr. Hannah that would have provided even the slightest amount of insight into his mental state at the material time. A fulsome understanding of his mental status at the material time proved impossible to determine.

In summary, with respect to the charges from June 20, 2019, I am of the psychiatric opinion on a balance of probabilities that Mr. Hannah would not qualify for a defence of not criminally responsible due to a mental disorder. [Emphasis in original.]

45Under the heading "Recommendations" (at p. 13), Dr. Van Impe suggested that should Mr. Hannah be found to be criminally responsible, he should "be afforded ongoing treatment for his primary psychotic disorder," abstain from all non-prescribed substances and maintain full compliance with prescribed medications, unlikely though that might be in the absence of a controlled setting. Dr. Van Impe forwarded a Form 1 based on his assessment of Mr. Hannah on February 6, 2020, and the belief that he had then "a mental disorder that results in him presenting a risk for violence (harm) to others." Dr. Van Impe stated his opinion that Mr. Hannah warrants psychiatric assessment and consideration for involuntary admission to a general inpatient psychiatry unit, observing that he would benefit from an assessment of his capacity to consent to treatment and likely from the initiation of antipsychotic medication.

Previous Criminal Record

46The prior record set out in the 2017 pre-sentence report was not disputed at the sentencing at that time. It consisted of the following:

Date	Location	Charge	Sentence
2011-06-04	Oshawa	Mischief under $5000	Suspended sentence and 18 months probation
2011-07-14	Peterborough	(1) Possession weapon (2) Mischief under X3	Suspended sentence and 18 months probation
2012-06-25	Peterborough	FTC probation X2	Suspended sentence and 6 months probation (1 day PSC)
2012-10-09	Oshawa	(1) Assault (2) FTC undertaking	(1) 30 days (2) 10 days consec. and 12 mos. probation
2013-01-29	Peterborough	(1) Assault (2) FTC probation (3) Mischief under	1 day (30 days PSC)
2013-02-19	Oshawa	(1) Mischief under (2) Fail to attend court	11 days (4 days PSC) and 2 years probation
2013-04-03	Peterborough	FTC probation	1 day
2013-04-19	Oshawa	FTC recognizance	Suspended sentence and 18 months probation
2013-05-17	Ottawa	(1) Assault (2) FTC probation	59 days and 12 months probation
2013-05-29	Oshawa	(1) Assault (2) FTC probation (3) Fail to attend court	60 days consec. to sentence being served, and 18 months probation
2013-10-01	Peterborough	(1) Assault (2) FTC probation	27 days and 12 months probation
2013-11-25	Toronto	(1) Assault (2) FTC probation	28 days
2014-03-12	Toronto	Assault X3 FTC probation X2	1 day and 2 years probation
2014-09-26	Toronto	(1) Break and enter with intent (2) FTC probation	15 days
2014-12-29	Toronto	(1) Arson (2) Break, enter and commit (3-5) FTC probation (6) FTC recognizance	12 months and 3 years probation
2013-12-23	Toronto	Assault	1 day
2017-07-13	—	Public mischief	1 day

47The documents filed also indicate that Mr. Hannah's criminal record should also include as the most recent entry the following:

Date	Location	Charge	Sentence
2017-12-08	Oshawa	Mischief endangering life	17 months (after PSC 138 days, credited as 207 days) and 3 years probation

Transcripts of Previous Proceedings

48As already stated, the Crown filed, initially on the sentencing and then on the NCR hearing as well, a number of transcripts relating to earlier proceedings against Mr. Hannah that resulted in some of the entries appearing on his prior criminal record, as set out above.

Ottawa, May 17, 2013

49The transcript of the proceedings in the Ontario Court of Justice in Ottawa on May 17, 2013, recorded Mr. Hannah's guilty pleas to two charges. The first count alleged an assault committed the day before (i.e., May 16, 2013) in Ottawa on a woman named Nicole Cook. The second count alleged a breach of probation by violating the statutory condition in the probation order made October 9, 2012, that required Mr. Hannah to keep the peace and be of good behaviour.

50It might be noted that the transcript does not record any plea comprehension inquiry of the kind mandated by s. 606(1.1) of the Code. Instead, duty counsel simply indicated that Mr. Hannah was prepared to plead guilty to the two counts in the information, and the arraignment followed immediately thereafter.

51The Crown then read in the facts, which bore a seemingly striking similarity to the facts concerning the assault bodily harm committed in the present case. The Crown there stated the following:

The facts, Your Honour, are that May 16 th this year, at approximately 4:20 in the afternoon, the accused walked passed a CIBC bank located on the corner of Rideau Street and Sussex. For some unknown reason, he yelled at a security guard that was standing outside the bank, that being Nicole Cook; she was on duty and in uniform at that location. He kicked the window of the bank with enough force that Ms. Cook believed the glass had shattered. She told him to leave and, as a result, the accused responded by punching Ms. Cook in the left side of her face with his right fist. She received a cut to the left side of her face causing her to bleed all over her shirt. Police were called.

He had fled the scene; however, they found him a short time later within the area. He was booked and when he was booked it was noted that he was also on probation; one of the conditions being that he keep the peace and be of good behaviour.

Duty counsel stated that he had reviewed the facts with Mr. Hannah and that they were correct. Findings of guilt were then made by the trial judge.

52After the criminal record was admitted and filed, duty counsel stated that there was a joint submission for a 60-day jail term as a resolution of both charges, as well as a non-reporting probation order, to run concurrently with the one to which he was already subject, with the only additional condition being that he not attend the address where the assault was committed. The Crown concurred.

53The following exchange then occurred between the trial judge and Mr. Hannah:

The Court: Mr. Hannah, is there anything you wish to say to the court before I impose sentence? You're not required to say anything but if you wish to address me, I'll listen to what you have to say.

Mr. Hannah: Nope, there's nothing I wanna say.

The Court: All right. You don't want to explain why you did this?

Mr. Hannah: I could, but you wouldn't want an explanation.

The Court: Pardon?

Mr. Hannah: I could but you wouldn't want it.

The Court: I would.

Mr. Hannah: Okay. That was an ex-Durham Regional cop, that tortured me in a holding cell. Went out of control we started messing with the street lights [ sic ].

So basically, I've been tortured on the streets while they messed with the street lights, and when I seen her at CIBC bank, basically I said to her, why did you torture me in a holding cell this – and got – pointed a gun at me on my last charge which is original from almost a year ago. That's basically why I punched her in the head. Like I said, you wouldn't wanna know. Now you know.

The Court: No, I thank you for giving me that information. Mr. Hannah…

Mr. Hannah: I'm just [inaudible] that we can't get a trial again and strapping her to a polygraph.

The Court went on to accede to the joint submission and imposed a sentence of 59 days in jail and 12 months probation (as reflected in the criminal record, supra). No issue concerning criminal responsibility was raised by either party.

Toronto, November 7 and December 29, 2014

54On November 7, 2014, Mr. Hannah appeared at the Old City Hall on charges of arson (s. 434), break, enter and commit arson (s. 348(1)(d)), three counts of breach of probation (s. 733.1(1)) and one count of breach of recognizance. The Crown proceeded by indictment. Although defence counsel appeared on his behalf, Mr. Hannah stated, "He's not representing – I'm representing myself. Let him fucking try. … I said I'm representing myself. I told that guy to fuck off downstairs. So let's proceed. It appears that he's here and he can fuck right off." Defence counsel agreed that he had thereby been discharged and left. When asked how he elected to be tried, Mr. Hannah replied, "Before a judge and Crown attorney, unassisted by defence attorney, pleading guilty." He then entered guilty pleas to the six counts.

55The Crown read in the following facts:

On the date in question, October 6, 2014, Mr. Hannah was subject to three separate probation orders, as outlined in the information before the Court, wherein he was required to keep the peace and be of good behaviour. He was also subject to a recognizance which required, amongst other things, he not attend 39 Elm Street, in the City of Toronto.

On October 6, 2014, at approximately 11:15 a.m., Mr. Hannah indeed attended at 39 Elm Street, in the City of Toronto. That is an unoccupied two-storey building that is currently under renovation, and it's located in a densely populated, mixed residential commercial area, here in the downtown core of Toronto. Using an unknown instrument, Mr. Hannah pried open the door leading into the premises. Once inside, he started a fire … somebody who works in the area observed the smoke coming from the premises and called 911.

Toronto Fire Department attended the scene in relation to the fire. Police also arrived. Mr. Hannah was located by police still inside the premise. He was smoking a cigarette and he was observed to be covered in soot and smelled like fire. He was placed under arrest at that time…

56When the Court asked Mr. Hannah if those facts were substantially correct, the following exchange occurred:

Mr. Hannah: Yeah, I just have a question. Did the house burn down? 'Cause, like, what does she mean by arson?

The Court: Arson is setting a …

Mr. Hannah: Like, I understand the fire – I lit the place on fire. Do you mean the house burned down, ma'am? Like, what particularly is the problem with the fire?

The Court: Well, are those facts substantially correct, sir?

Mr. Hannah: Yes, they are.

57Convictions were then entered on all counts (without, it might be noted, any potential Kienapple issue being raised concerning the separate counts of arson and also break, enter and commit arson), and sentencing was adjourned in order to obtain an earlier pre-sentence report that had been prepared.

58On December 29, 2014, when Mr. Hannah appeared for sentencing, reference was also made to a report from CAMH, although its contents were not discussed and it was not filed here. In answer to questions from the Court, Mr. Hannah stated that he sometimes committed offences when he was "depressed and drinking," but that he had never been prescribed anti-psychotic drugs, nor had he ever asked for them. The Crown sought a sentence of two years less a day and three years' probation. The Court imposed a sentence of one year in addition to the three months of pre-sentence custody he had spent, with a recommendation that the sentence be served at the Ontario Correctional Institute in Brampton, to be followed by three years of probation, concurrent on all six counts. The probation that was ordered included a condition that he not have any devices capable of setting a fire, including matches or lighters.

Oshawa, September 21 and December 8, 2017

59On September 21, 2017, at the Ontario Court of Justice in Oshawa, Mr. Hannah, not represented by counsel but assisted by amicus, pleaded guilty to the charge that on July 24, 2017, he "did wilfully damage property, namely a gas line situated at 13 King Street West, and did thereby commit mischief that caused actual danger to life, contrary to s. 430(3) of the Criminal Code." He also agreed that he would admit four other incidents involving damaging gas lines.

60The facts read in by the Crown indicated that police officers attended 13 King Street West in Oshawa with respect to "a pretty significant gas leak at the back of the building" that appeared to have been caused intentionally. Three similar incidents involving deliberate damage to gas lines had been reported in the previous three days. The Fire Department shut off the gas, pointing out that the black hosing had been pulled to expose copper piping at the top and bottom of the line, causing the gas leak. The gas leak had first been detected by a student at the tae-kwon-do centre located in the building, and the occupants, including a number of children, were evacuated from the building. A motion-activated security camera captured Mr. Hannah "bending over and yanking on the gas line violently numerous times." Mr. Hannah was located a short distance away in a telephone booth where he was screaming into the phone receiver, and he was arrested. He was found to have a lighter in his possession, despite the condition of probation prohibiting him from having it that was ordered following his arson conviction. It was observed that he continued to rant in the police cruiser, angry that he had been arrested.

61The additional facts admitted to be accurate were that three days earlier, on July 21, 2017, Mr. Hannah caused leaks of natural gas by damaging the gas lines affixed to two other buildings in Oshawa, each causing danger to people in the area. Similarly, the next day, on July 22, 2017, he damaged the gas line at another building, also requiring immediate repair by Enbridge Gas. A pre-sentence report was ordered. The Crown stated that its position on sentence was maximum reformatory time, less credit for pre-sentence custody, and three years probation.

62On December 8, 2017, while waiting for Mr. Hannah to be brought in, the trial judge made the following observation: "I anticipate that Mr. Hannah will, as he has so far, refuse to participate in any meaningful manner in the sentencing. He generally doesn't say anything. He doesn't wish to say anything. He doesn't want to review anything. He doesn't want to talk, period, which is consistent with the PSR…". Mr. Hannah, when he appeared, stated that he did not want amicus to read the PSR to him, that he had already seen it himself, and that he was "fine with it." When the judge asked Mr. Hannah if there was any explanation he wanted to give for why he had committed the offence, he said simply, "I wasn't thinking when I did it…. I wasn't thinking, and that's pretty much it." Similarly, when she asked him if he realized that a spark could have caused an explosion and killed children, Mr. Hannah said he was aware of that, but "… like I said, I wasn't thinking at the time."

63Giving enhanced credit for the pre-sentence custody, the trial judge deducted 7 months from the 2-year sentence sought by the Crown, leaving 17 months' imprisonment to be followed by probation for three years. Among the conditions ordered was the same condition that he not possess any incendiary devices, including, but not limited to, matches and lighters.

The Pre-Sentence Report Dated December 5, 2017

64Among the material filed by the Crown here on March 6, 2020, as already stated, was the pre-sentence report that had been prepared for the sentencing in Oshawa with respect to the mischief endangering life conviction.

65The pre-sentence report repeated much of the same information that Dr. Van Impe had gleaned from other sources. As a child in Peterborough, Mr. Hannah was not exposed to an abusive or violent family environment. He was diagnosed in elementary school with a learning disability, although he was never assessed by a mental health professional. It seemed apparent that he could not read, and after he dropped out of high school, he received ODSP benefits. For a number of years, he moved back and forth between Peterborough and Oshawa, but his mother reported that he had not contacted her for a few years and that, in any event, "he really won't talk to me."

66With respect to substance use or addictions, Mr. Hannah told the probation officer that he consumed alcohol only occasionally, that he did not use other illicit drugs, and that when asked if he was under the influence of any substances when he cut the gas lines, he replied, "No comment." The probation officer reported that Mr. Hannah was minimally cooperative when interviewed and declined to explain the circumstances surrounding the offence.

67Under the heading "response to Community Supervision," the PSR recorded the experience Mr. Hannah had had on probation since 2011 when he was found guilty of mischief. At that time, he had been found damaging vehicles with an axe which, he said at sentencing, was because he was drunk.

68More entries on his criminal record followed, and further probation orders were made. In August 2012, his probation officer observed that while he could present with bizarre and unusual behaviour, he was never threatening, and that finding stable housing was his primary problem. His limited intelligence and apparent mental health issues left him vulnerable to negative peers. Mr. Hannah was referred to a local psychosis intervention program, given the suggestion that he had been experiencing a psychotic episode when the offences were committed, but he did not present with such symptoms when he was assessed and was deemed unsuitable for the program. His probation officer at the time expressed disappointment with the outcome since Mr. Hannah appeared to be someone who would have benefitted from community mental health services, since he was supported by ODSP and had been diagnosed as a child with illiteracy, ADHD and lacking "insight, judgment and poor planning skills."

69The PSR summarized (at pp. 7-10) Mr. Hannah's disappointing response to probation, interrupted by further offences and jail terms, over the next several years. Referrals that were made to psychiatrists and community support agencies, including a housing worker, proved unsuccessful.

70The assessment ultimately made by the author of the PSR expressed concern that with Mr. Hannah's intellectual and developmental disabilities, there was an increased risk of alcohol and substance abuse. Despite his consistent denials and resistance to psychiatric interventions, it was suggested that given Mr. Hannah's purposeful transient behaviour, apparently moving about the province to avoid confronting the issues he was unwilling to address, he was not considered a suitable candidate for further probation.

Dr. Van Impe's Viva Voce Evidence at the NCR Hearing

71Dr. Van Impe testified in person at the NCR hearing on July 22, 2020. He repeated the diagnoses he had made in his report in February and confirmed his conclusion that Mr. Hannah does not qualify for a s. 16 defence, expanding on the reasons he gave earlier. He testified as well that that the material provided to him after he wrote his report, including the booking video in the present case and the Ottawa transcript from 2013, did not alter his psychiatric opinion.

72Dr. Van Impe testified that his interactions with Mr. Hannah had led him to believe that intellectual impairment was clearly an issue, but that in the absence of formal psychological testing (which there was no reason to think he would participate in), it was impossible to determine its extent.

73Dr. Van Impe repeated his impression that Mr. Hannah suffers from a major mental illness, a primary psychotic disorder, but that he was uncomfortable saying, nor was it particularly relevant, whether it was schizoaffective disorder – bipolar type or schizophrenia. He indicated again that there was a behavioural component at play as well. While admitting that there was always "a little bit of clinical doubt," he diagnosed it as antisocial personality disorder.

74Dr. Van Impe noted that the video of Mr. Hannah's booking at the police station shortly after his arrest appeared to show that he was talking to himself, perhaps experiencing auditory hallucinations, although the quality of the audio was very poor and he could not understand what he was saying. As a result, from the psychiatrist's perspective, it did not provide much information as to the content of his thinking at the time.

75With respect to the transcript relating to what he described as the "similar offence" in Ottawa in 2013, Dr. Van Impe testified that he thought the offence was "very clearly delusional." Referring to Mr. Hannah's statement in court that he had assaulted the victim because she had tortured him, Dr. Van Impe stated:

… I wondered why [this] didn't lead to an NCR assessment because that, to me, he's talking about the lights flickering and this person had tortured him in – so, it seems like he had lost, in that moment, the moral ability to really appreciate what he was doing and he probably felt that he was morally in the right to do it.

Dr. Van Impe also pointed out that such a statement from Mr. Hannah was completely lacking in the present case.

76Dr. Van Impe further explained that while he believed Mr. Hannah knew that he had physically assaulted someone and then took off,

… Usually, NCR opinions tend to hinge on the moral wrongfulness of the behaviour and that is where we like – me personally – maybe other forensic psychiatrists would approach it differently – I like to have something to go on. It can be a one liner to the police who arrest him, it can be a booking video where he's talking about the victim in psychotic terms, that sort of thing, which was present in the 2013 Ottawa case which, in my mind, I couldn't find that for this offence.

Dr. Van Impe added that while the booking video in the present case, showing Mr. Hannah talking to himself, demonstrated that he was psychotic, "… it doesn't speak to me to what thoughts he was having about the actual victim."

77Apparently believing that witnesses had reported that Mr. Hannah had been going up to other people acting aggressively before he committed the assault (which was not in fact the evidence at trial), Dr. Van Impe continued,

… So, is there at least the possibility that this victim was unfortunate and was in the wrong place at the wrong time? Did she smile at him in the wrong way? We know that he angers very easily… And was it just this woman - his kind of anger had reached a boil and she happened to be the one who got it? I think that's a possibility, too, because I have no indication beyond the fact that he was probably psychotic.

I'm not certain it wasn't substance induced, but regardless, I think he was psychotic. But I don't have any information to suggest that the psychosis was anything other than auditory hallucinations 'cause that's when I think it was for sure because I think that's [why] he was engaging himself in conversation. But I don't know the content of those auditory hallucinations and I don't know if he was also have delusions, and even if he was having delusions, were those delusions focused on the woman he ended up attacking? It's a lot – for me anyways, it's a lot for me [to] speculate on… because I don't – and you know, it's an opinion, right, like that's just… [ sic ]

78In answer to the Crown's question as to whether he considered an NCR defence too speculative, based on the information he had been given, Dr. Van Impe replied:

… so, we use the balance of probabilities. In the absence of something telling me that he was psychotic with delusions of any form focused on the victim, my opinion was that I couldn't pass that balance of probabilities threshold and comfortably suggest that Mr. Hannah was not criminally responsible.

79Dr. Van Impe further testified that when he had stated in his report that he could not think of any non-psychotic motivation for the offence, he was referring to "… the things we don't know, the influence of substance and the influence of just poor anger control, irritability, in an individual who is pretty antisocial."

80In cross-examination, Dr. Van Impe agreed that sociopathy refers to a personality type that includes antisocial personality disorder, a major focus of which is on callous disregard for others and indifference to laws or the police. While symptoms vary, he agreed, it is often associated with anger and aggression. People with antisocial personality disorder tend not to be inhibited by the moral feelings that people generally have towards wronging others, which is quite different from those to whom s. 16 applies.

81Dr. Van Impe also agreed that a hallmark of antisocial personality disorder is anger or hostility directed toward an authority figure. In his opinion, the aggression Mr. Hannah directed towards him personally when he attempted to engage him during the assessment process was based on a behavioural, rather than delusional, issue. In response to the suggestion made by amicus, Dr. Van Impe agreed that he could not rule out the possibility that the assault on the victim here involved an angry, antisocial person being triggered by something that caused him to strike out, conduct that was more associated with his personality-based disorder rather than his psychosis.

82Dr. Van Impe repeated his opinion that Mr. Hannah knew what he had done and knew that it was illegal, but that, unlike the assault in Ottawa in 2013, he saw no evidence that he was motivated by a delusion towards the particular victim. While Mr. Hannah had been at Waypoint, the psychiatrist observed that he had displayed psychotic symptoms on occasion, but that he never verbalized any delusion concerning the victim. Moreover, Dr. Van Impe stated, it would be unusual for a person who was psychotic and delusional to be able to "keep a lid" on his beliefs and not express them at some point during such an extended period as his detention at Waypoint from mid-December until early February.

83After repeating his opinion that Mr. Hannah's hostility shown towards him personally during their interactions was driven more likely by his personality type than by his psychotic symptoms, Mr. Bernhardt then asked questions about the assault in question:

Q. You have somebody who's angry, who may have been drinking, who just didn't like something she did?

A. Well, was it – the other thing, we don't know the circumstances of his life at the time. Was he homeless? Did he have no money? Was she dressed really well and that peeved him? Like, there's just…

Q. But that is a possibility?

A. It is a possibility.

Q. So, and that would be based on behaviour and personality as opposed to the sort of delusion that justify – that can be the foundation of s. 16 defence; is that fair?

A. I would agree with that.

Q. Using the – I hope it's not inappropriate, but you couldn't rule that out; is that possible?

A. I could not rule that out.

84Dr. Van Impe repeated that he did not see that Mr. Hannah's conduct, either towards him or the victim, was based on a fixed false belief or by "a command auditory hallucination where an individual is commanded to engage in a certain manner and feels absolutely powerless to resist those commands," which he regarded as the two most common routes to a s. 16 finding that the person did not know his act was wrong.

85Dr. Van Impe testified as well that with people like Mr. Hannah who have both a psychotic disorder and antisocial personality disorder, it is not possible to attribute with certainty the cause of particular conduct, that there is instead a "grey area" requiring interpretation, and that attributing an offence to one or the other of the two diagnoses is "very, very difficult." What distinguishes the current assault from the case in Ottawa, he stated, was Mr. Hannah's failure here to say something indicating that he was clearly delusional at the time, recognizing that "individuals with psychotic disorders generally aren't able to hide those kinds of feelings for extended periods of time, especially when untreated."

Legal Principles Relevant to the NCR Issue Raised by the Crown

86It is, of course, a basic tenet of the Canadian criminal justice system that a person who is not criminally responsible at the time of an offence should not be convicted of it: see R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933.

87Section 16 of the Criminal Code reads as follows:

16. (1) 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.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on a balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

88In this case, the presumption of Mr. Hannah's criminal responsibility can only be displaced if it is found, based on a the preponderance of the evidence, first, that there was a causal connection between his mental disorder and his act constituting the offence (as opposed to, for example, a "behavioural" explanation stemming from his anti-social personality disorder), but also, second, that his mental disorder resulted in an incapacity on his part to appreciate what he was doing or to know that it was wrong. As the NCR issue was developed here, the focus of much of the psychiatric evidence and the submissions of counsel centred on the subjective "wrongfulness" inquiry mandated by the second branch of s. 16(1).

89To restate it, the difficult question, at least from my perspective, is whether the Crown has established, on a balance of probabilities, that because of his mental disorder, Mr. Hannah did not know that his specific conduct was morally wrong in the particular circumstances in which he committed the act. The requisite "wrongfulness" inquiry has been guided now by three decades of case law from the Supreme Court of Canada and the Ontario Court of Appeal. While the judgments provide a good deal of repetition of much the same language, they also illustrate how, as Blair J.A. put it in R. v. Campione, 2015 ONCA 67, at para. 37, "[m]oral wrongfulness as contemplated in s. 16 is a slippery concept to apply."

90In R. v. Chaulk, [1990] 3 S.C.R. 1303, at pp. 1354-56, Lamer C.J.C. explained the meaning of the phrase "knowing that it [was] wrong", the words used now in s. 16(1), in the following terms:

Viewed from this perspective, it is plain to me that the term "wrong" … 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 according to the moral standards of society.

[T]he insanity defence should not be made unavailable simply on the basis that an accused knows that a particular act is contrary to law and that he knows, generally, that he should not commit an act that is a crime. It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by reason of a disease of the mind, believes it would be "right" according to the ordinary morals of his society to commit the crime in a particular context. In this situation, the accused would be entitled to be acquitted by reason of insanity.

91Lamer C.J.C. also stated further, in R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68, at p.80, the meaning of "wrong" in this context:

In accordance with our decision in Chaulk, the trier of fact must be directed to consider whether the appellant was rendered incapable by reason of disease of the mind or "natural imbecility", to know that his act was morally wrong in the circumstances. It is not sufficient to decide that the appellant's act was the result of his delusion. Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society. [Emphasis in the original.]

92Chaulk was also applied and explained further by the Supreme Court in R. v. Oommen, 1994 CanLII 101 (SCC), [1994], 2 S.C.R. 507. In that case, there was evidence that the accused, suffering from psychosis of a paranoid delusional type, falsely believed that his sleeping friend was a conspirator intending to kill him. As a result, he killed her to prevent her from killing him. At trial, psychiatrists testified that while the accused possessed the general capacity to distinguish right from wrong and would know that killing someone is wrong, his delusion at the time deprived him of that capacity and led him to believe that the killing was necessary and justified in the circumstances as he perceived them. The trial judge convicted the accused of second degree murder, despite the evidence of his delusional belief at the relevant time. Concluding that the trial judge had misinterpreted s. 16(1), the Alberta Court of Appeal ordered a new trial.

93In dismissing the Crown appeal to the Supreme Court, McLachlin J. observed that there was no question at trial that the accused had killed the deceased, nor was there much doubt that his "insane delusions" provoked the killing. The only issue was whether his delusion exempted him from criminal responsibility under s. 16(1) on the ground that he lacked the capacity at the relevant time to know the difference between right and wrong, and that, despite his intellectual capacity to know that killing a person was wrong in the abstract, his delusion affected his interpretation of events and caused him to believe that the killing was justified in the circumstances as he perceived them.

94McLachlin framed the issue in the following way: "What is meant by the phrase "knowing that [the act] was wrong" in s. 16(1)? Does it refer only to abstract knowledge that the act of killing would be viewed as wrong by society? Or does it extend to the inability to rationally apply knowledge of right and wrong and hence to conclude that the act in question is one which one ought not to do?"

95In answering those questions, McLachlin J. stated the following, at pp. 518-20:

The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of dysfunctions; … these include, at a minimum, the states to which the psychiatrists testified in this case – delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the person of the ability to rationally evaluate what he is doing.

The issue is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person… the real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.

96More recently, in R. v. Dobson, 2018 ONCA 589, the Court of Appeal confronted differing interpretations advanced by the parties concerning the wrongfulness inquiry prescribed by Oommen. Dobson involved an appeal from conviction of two counts of first degree murder where, pursuant to a suicide pact, the accused had killed two friends and then tried to kill himself. At trial, the defence advanced an NCR defence, arguing that the accused suffered from a mental disorder that rendered him incapable of knowing that it was wrong, in the circumstances, to kill his two friends. On appeal, it was argued that in convicting the accused, the trial judge had misinterpreted the phrase "knowing that it was wrong" in s. 16(1).

97As a result of the conflicting psychiatric evidence called by both parties in Dobson, it was common ground that the appellant suffered from a serious mental disorder - schizophrenia or schizotypal personality disorder - and that there was a causal relationship between the mental disorder and the killings. All four psychiatrists agreed that the appellant was capable of appreciating the nature and quality of his actions and that the appellant knew when he killed his friends that his actions were legally wrong. They differed, however, on whether the appellant knew that his actions were morally wrong, as that concept had been judicially interpreted.

98The appellant quoted a passage from Oommen and submitted that it provided authority for the proposition that the capacity to know one's act is wrong requires the capacity to make a rational choice about committing the act, such that, if a delusion precludes the making of a rational choice, the accused does not have the capacity to know his act is "wrong". The Crown, on the other hand, took the position that it was not enough that the accused, in his delusional state, believed his acts were "right" according to his or own moral code, but that an accused could only be found NCR if he lacked the capacity to know that society would regard what he did, in the circumstances, as morally wrong.

99Doherty J.A. stated at paras. 22 and 24 of Dobson:

It may be that different extracts from Oommen are open to different interpretations, however, the Crown's interpretation of Oommen is consistent with the interpretation adopted in an unbroken line of authority in this court: e.g. see R. v. Woodward, 2009 ONCA 99, at para. 5 ; R. v. Guidolin, 2011 ONCA 264, at paras. 17-18 ; R. v. Szostak, 2012 ONCA 503, at paras. 56-58 ; R. v. Campione, 2015 ONCA 67, at para. 30 .

In my view, 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 wrongfulness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.

100The Court of Appeal's decisions in what Doherty J.A. described as that Court's "unbroken line of authority" clearly warrant consideration, not only because they provide restatements of the requirement of a s. 16(1) "wrongfulness" inquiry, but also, on occasion, illustrations of where the psychiatric evidence was found insufficient or where trial courts fell into reversible error.

101In R. v. Ross, supra, the Court of Appeal dealt with a conviction appeal eight years after the accused had pleaded guilty to charges of criminal harassment and uttering threats. On appeal, fresh evidence was tendered that two psychiatrists concluded that he was NCR at the time of the offences; two others concluded that he was not. After referring to Chaulk and Oommen, MacPherson J.A. stated, at para. 27, that "[t]hese decisions make it clear that a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was regarded as wrong on a societal standard…"

102MacPherson J.A. went on to find, at para. 29, that the reports and testimony of the psychiatrists who opined that an NCR defence was available did not provide a basis upon which a trial judge could be satisfied on a balance of probabilities that the accused was incapable of knowing his conduct was morally wrong when he committed the offences. MacPherson J.A.'s conclusion was based, he wrote, on several grounds, including the 150-page letter the accused had written at the time acknowledging his conduct was morally and legally wrong, his admission to one of the psychiatrists that he knew his conduct was unacceptable, the failure of one of the doctors to review the available evidence, including the letter that showed his capacity to engage in an objective evaluation of his conduct, and, finally, the contrary opinions reached by two other psychiatrists.

103In the Court of Appeal's endorsement in R. v. Woodward, supra, dismissing a conviction appeal and rejecting the psychiatric opinion tendered as fresh evidence, the Court restated the following, at paras. 5-6,

The applicable test where the NCR claim is founded on the assertion of an incapacity to know that one's acts are morally wrong is set out in Oommen. That case instructs that the court must determine whether the appellant was incapable of understanding that his acts were wrong according to the ordinary moral standards of reasonable members of the community.

In our view, Dr. Gojer does not address this specific question in his report or in his evidence beyond stating that he does not think that the appellant knew that what he was doing was morally wrong. The appellant's personal belief about the morality of his actions is different than his capacity to know how others in the community would assess the morality of his acts. It is difficult to see how an individual like the appellant who knew his actions were legally wrong would be incapable of understanding that the same acts would be regarded as morally wrong by the community. Dr. Gojer provides no insight into this problem.

104The Court of Appeal also made the following observation, at para. 9, in an explicit direction applicable to triers of fact in such cases:

Dr. Gojer's opinion comes down to a conclusory statement that appears to be driven in large measure by his belief that the appellant would be better served from a treatment perspective in the NCRMD regime than he would be in the penitentiary. We cannot accept this result-driven approach to the NCRMD inquiry. Dr. Gojer's evidence does not provide any basis upon which the appellant could demonstrate that he was NCRMD at the relevant time.

Given the strength of the evidence here that Mr. Hannah's untreated mental illness and anti-social personality disorder make him an ongoing threat to the safety of the public, it is important to state expressly that the NCR determination must be based on the legal requirements of s. 16, and not be influenced by consideration of the consequences of any particular verdict.

105R. v. Guidolin, supra, also cited by in Dobson, provided an example of a case where a trial judge, dealing with a robbery charge, had accepted the NCR defence advanced by the accused, and not opposed by the Crown, that was based on the opinion expressed in the only psychiatric report that had been filed. The Court of Appeal set aside the NCR finding as unreasonable and substituted a conviction. Doherty J.A. observed that while there was ample evidence that appellant suffered from a serious, longstanding mental disorder (the diagnosis was schizoaffective psychosis, polysubstance abuse and antisocial personality disorder) and that there was "ample evidence that the appellant's mental disorder was in all likelihood causative of his criminal conduct, he went on to state, at paras. 17-19, the following:

However, as [ amicus ] correctly observes, s. 16 is not triggered merely because an accused suffers from a mental disorder that is causative of criminal conduct, even if that disorder renders the accused a danger to the public. The mental disorder can constitute a "defence" under s. 16 only if it has one of two effects. It must either render the person incapable of appreciating the nature and quality of the act or render the person incapable of knowing that the act was wrong.

The meaning of "wrong" in the context of s. 16 was explained in Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, at p. 520:

The issue is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person.

Nothing in the brief recitation of the facts surrounding the offences provided to the trial judge offered any support for the claim that the appellant did not know his conduct was wrong. The viability of the NCRMD verdict turned entirely on Dr. McDonald's report.

106Doherty J.A. went on to explain that the psychiatric report did not provide a reasonable basis upon which the NCR verdict could be reached, given that Dr. McDonald apparently accepted that the accused had the capacity to recognize the wrongfulness of his act, but simply did not care, and he misinterpreted the meaning of the word "wrong" in Oommen, equating it with an inability to exercise the judgment of a normal person, rather than the very different requirement of an incapacity to know that one's actions are wrong according to the normal standards of the community.

107In R. v. Szostak, supra, Rosenberg J.A., for the Court, found no error in the NCR finding made at trial where the accused, suffering from alcohol-related dementia, believed, as a result of a paranoid delusion that his son was at risk, that he was justified in threatening and harassing his wife. At paras. 56-58, Rosenberg J.A. stated:

I agree with the trial judge's analysis and his findings. In my view, he properly applied the law, particularly as set down in R. v. Oommen … As in this case, the accused in Oommen suffered from delusions. The important part of the analysis in Oommen as it applies in this case is that the inquiry under s. 16(1) as it relates to knowing the act was wrong focuses not on a general or abstract capacity to know right from wrong but, rather, on the capacity to know whether the particular act was wrong in the circumstances. …

In this case, the accused did have a general understanding of the difference between right and wrong and even appreciated that his actions were illegal. However, he also felt compelled to threaten and harass the complainant to protect his son and believed he was justified in taking this course of action. In the words of McLachlin J. in Oommen, he was deprived of the capacity for rational perception and hence rational choice about the rightness or wrongness of his acts.

Put another way, the appellant did not know that his acts were morally wrong as that concept was explained by Lamer C.J.C. in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at pp.1354-56 [in the passages already quoted above].

108R. v. Campione, supra, was the final case cited by Doherty J.A. in Dobson, at para. 22. Campione involved an appeal from first degree murder convictions where the appellant had killed her two young daughters by drowning them in a bathtub. According to the NCR defence advanced at trial, she suffered from a psychotic order that produced a delusion that she could only save her children from harm from her estranged husband and his family by killing them so God could protect them. The defence argued that her psychotic disorder rendered her incapable of making rational choices, so that she was incapable of knowing her acts were morally wrong. The Crown relied on the opinion of a second psychiatrist who concluded that anger and revenge were the motivations for the accused's actions and that she had the capacity to understand the moral wrongfulness of her acts.

109Blair J.A. referred, at para. 30, to Chaulk, Oommen and Ratti, and, at para. 31, stated:

Moral wrongfulness as contemplated by s. 16 is a slippery concept to apply. However, this Court very succinctly summarized the relevant considerations in Ross, at para. 27, when it stated that "a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was wrong on a societal standard: see also R. v. Woodward, supra at para. 5

110At para. 23 of Dobson, Doherty J.A. quoted with approval the description of the wrongfulness inquiry under s. 16(1) that Blair J.A. provided in Campione, at paras. 39 and 41:

The ultimate issue for the jurors to determine was whether – in spite of her delusions and any honest belief in the justifiability of her actions – the appellant had the capacity to know that those actions were contrary to society's moral standards. The centrepiece of the inquiry is her capacity to know and to make that choice; it is not the level of honesty or unreasonableness with which she may have held her beliefs. Concentrating on the latter unduly complicates the inquiry for the very reason the appellant raises in support of her argument; it leads to the application of reasonableness considerations to the appellant's delusions and subjective belief.

In short, a subjective, but honest belief in the justifiability of the acts – however unreasonable that belief may be – is not sufficient, alone, to ground an NCR defence, because an individual accused's personal sense of justifiability is not sufficient. The inquiry goes further. The accused person's mental disorder must also render him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with those standards. [Emphasis added by Doherty J.A.]

Legal Principles Re Acceptance or Rejection of Psychiatric Opinion Evidence

111In R. v. Ratti, supra, under the heading "Issue No. 5", Lamer C.J.C. stated that the trial judge in that case had made no error in instructing the jury that "psychiatry, like any other branch of medicine, is not an exact science" and that "an individual judgment is always a factor in psychiatric assessments." Moreover, he held, the trial judge properly instructed the jury that they were the sole judges of the facts, and that in determining the facts, they could believe all, part or none of a witness's evidence, including the expert evidence given by the psychiatrists. The Chief Justice stated, "The trial judge correctly advised the jury to consider the expert testimony in relation to the facts and that the testimony could be rejected if it was based upon factual assumptions with which they disagreed."

112Similarly, in R. v. Molodowic, 2000 SCC 16, Arbour J. cited Ratti and stated the following, at para. 8:

The jury may therefore reject the opinion of experts, even when the experts called are unanimous and uncontradicted by other experts. … However, there has to be a rational foundation, in the evidence, for the jury to reasonably reject the opinion of the experts.

113Arbour J. further stated, at para. 10:

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. 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 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). …

114At para. 12 of her reasons, Arbour repeated that the trial judge had correctly instructed the jury "that they were not required to accept the psychiatric evidence, but that they had to assess it in light of the totality of the evidence tendered, and that they were entitled to reach their own conclusion even if it conflicted with that of the experts." She went on, however, to approve the following statement by Huband J.A. in his dissenting opinion, R. v. Molodowic (1998), 1998 CanLII 27968 (MB CA), 126 Man. R. (2d) 241, at p. 252:

The trial judge['s] instruction needs to be considered in the context of the case presented to the jury. The expert opinions of Dr. Yaren and Dr. Shane need not be accepted if there is some reason to reject them, because of some discernible flaw in their 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.

115Moreover, at para. 15, Arbour J. made the following observation:

The appreciation of the import of expert psychiatric evidence must be a realistic and reasonable one. Expert evidence, be it in the field of psychiatry or some other field, does not always provide a dispositive answer to questions of fact raised in an adjudicative legal context. In Addington v. Texas, 441 U.S. 418 (1979), in rejecting the "beyond a reasonable doubt" standard as inappropriate in civil commitment proceedings, the United States Supreme Court said (at p. 430):

The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical "impressions" drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient.

Arbour J. cautioned that "the nature and limits of psychiatric expertise" must be kept in mind when assessing whether a party has established "the defence of mental disorder" on a balance of probabilities.

116In most cases, of course, unlike the present one, the party raising the NCR issue will tender in evidence a psychiatric report or testimony in which the psychiatrist who conducted the assessment expresses an opinion, on which the party relies, that the accused has an NCR defence available. The case law makes it clear, however, that that is not a legal requirement.

117In Quenneville, supra, at paras. 26-30, Goudge J.A. held that the trial judge was entitled to reject the conclusory opinion given in the psychiatric reports that, despite the accused's mental disorder, he was not NCRMD. Goudge J.A. stated:

In my view, he was entitled to reject [the psychiatrist's opinion] because there was a rational foundation in the evidence for doing so: R. v. Molodowic, 2000 SCC 16, …

Nonetheless, for the trial judge's finding of NCRMD to be sustained, there still must be enough evidence to allow a reasonable trier of fact to conclude on a balance of probabilities that, at the time of the offences, Mr. Quenneville met the second branch of the test in s. 16(1) of the Code.

In my view, such evidence existed here, drawn from the facts surrounding the offences and the information in Dr. Balmaceda's reports. It is not necessary that this evidence include expert opinion evidence: see R. v. Simpson (1997), 1977 CanLII 1142 (ON CA), 16 O.R. (2d) 129 (C.A.).

118In another example, R. v. Richmond, 2016 ONCA 134, the appellant had been convicted of second degree murder following the stabbing and decapitation of his mother. The jury rejected his NCR defence that had been based on the evidence of a psychiatrist that he suffered from schizophrenia, with various psychotic-related symptoms, and that there was "an extremely strong circumstantial case" for an NCR finding. The psychiatrist agreed that the lack of an account of the killing from the appellant prevented him from offering a definitive opinion on the NCR issue, but that looking at the collateral material and the observable symptoms of his illness, an NCR defence was available to the appellant. The Court of Appeal dismissed the appeal from the convictions, finding that there was no legal error made in the trial judge's instructions to the jury on how they could assess the only expert evidence that had been presented.

119At para. 57-59, Cronk J.A. stated the following:

The appellant did not testify at trial or at his NCR hearing. The only medical evidence in support of his mental disorder defence was that of Dr. Klassen. But the jury was not obliged to accept Dr. Klassen's opinion that there was strong circumstantial case for an NCR finding, even though his opinion was not contradicted by Crown expert evidence: R. v. Molodowic, 2000 SCC 16, at paras. 7-8 ; R. v. Grandbois, (2003), 2003 CanLII 52129 (ON CA), 174 C.C.C. (3d) 181 (Ont. C.A.), at para. 24 . Further, in weighing Dr. Klassen's expert evidence, the jury was entitled to examine its factual foundations and to accord less weight to Dr. Klassen's opinion if it was not based on facts proved at trial, or where it was based on factual assumptions with which the jury disagreed: Molodowic, at para. 7.

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), 1998 CanLII 27968 (MB CA), 126 Man. R. (2d) 241, at p. 252.

However, the Supreme Court in Molodowic also cautions, at paras. 13 and 15, of the real danger that juries can be unduly skeptical of a psychiatric "defence", which is "often perceived as easy to fabricate and difficult to rebut". For this reason, "the weight of judicial experience must be brought to bear on the assessment of the reasonableness, as a matter of law, on the conclusion reached by the jury" and "the appreciation of the import of expert psychiatric evidence must be a realistic and reasonable one". See also R. v. W.H., 2013 SCC 22, at para. 29 .

120In her helpful review of the authorities in R. v. Burlacoff, 2009 ONCA 619, [2009] O.J. No. 3457, at paras. 184-186 (S.C.J.), Horkins J. restated the same principles and applied them to the case she was trying:

Before reviewing the expert medical opinions, it is important to set out the role these opinions play in assessing whether a defendant is NCR. This was confirmed in R. v. Molodowic, 2000 SCC 16, [2000] 1 S.C.R. 420 (S.C.C.), at pp. 425-28:

[U]nder the terms of s. 16 of the Criminal Code, the appellant was entitled to be found not criminally responsible for the killing if he could prove, on a balance of probabilities, that, by reason of his mental disorder, he was incapable of knowing that his act was morally wrong…

In R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68, at p. 80, this Court held that an act or omission is "wrong" within the meaning of s. 16, where that act or omission "in the particular circumstances would have been morally condemned by reasonable members of society." In deciding whether or not an accused appreciated that his actions were morally wrong, a jury is not "bound by the expert psychiatric testimony and … its probative value is to be assessed in the same manner as any other testimony" ( Ratti, supra at p. 81). Further, in weighing expert evidence a jury is entitled to examine the factual foundations of the opinion and is entitled to accord less weight to that opinion where it is not based on facts proved at trial and/or where it is based on factual assumptions with which they disagree. …

The jury may therefore reject the opinion of experts, even when the experts called are unanimous and uncontradicted by other experts. …

However, there has to be a rational foundation, in the evidence, for the jury to reasonably reject the opinion of the experts…

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. 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 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 where 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)."

In summary, I am not bound by expert opinions. I must assess this testimony like any other testimony. The factual foundation of the opinion must be examined and the weight will be negatively affected if the opinion is based on facts not proven during the trial.

It is open to me to reject an expert opinion even if it is unanimous and uncontradicted by other experts. However, there must be a "rational foundation in the evidence … to reasonably reject" the expert's opinion.

121Finally, R. v. Brown, 2012 ONSC 2942, provides a further example of a case where Kelly J., sitting as a summary conviction appeal court, dismissed an appeal from a NCR finding that had been at variance with the only psychiatric evidence given in the case. Kelly J.'s reasons included the following:

[2] Following the plea, Crown counsel made an application pursuant to s. 672.12 of the Criminal Code. She requested a court-ordered assessment to determine if the appellant was not criminally responsible ("NCR") at the time the offence occurred. The assessment was ordered.

[3] Dr. Rootenberg provided a report to the court which concluded the appellant was not NCR. He testified before Lapkin J. along with a number of other witnesses. Following submissions, the appellant was found NCR.

[16] While it is true that Dr. Rootenberg found that the appellant was not NCR in his initial report, it was clear that Dr. Rootenberg "struggled" with the question of whether the appellant understood that his conduct on the date in question was wrong. Lapkin J. made the legal finding of NCR as he was entitled to do and based upon all the evidence before him – Dr. Rootenberg's evidence included.

[17] Although I might not have come to the same conclusion, I find that the appellant has not demonstrated that a trier of fact acting reasonably and properly applying the law could not have arrived at the finding of NCR on account of mental disorder in this case. There was a reasonable basis, on all of the evidence, for such a finding on the balance of probabilities that the appellant suffered from a mental disorder that rendered him incapable of appreciating the nature and quality of his acts and, in particular, that they were wrong. Accordingly, this ground of appeal is dismissed.

Analysis and Findings

122There is no reason not to accept much of the unchallenged evidence provided by Dr. Van Impe, a well-qualified forensic psychiatrist. It has been amply established that Mr. Hannah suffers from a severe mental disorder of a psychotic nature. The differential diagnosis made by Dr. Van Impe of schizoaffective disorder – bipolar type and schizophrenia is clearly supported by a review of Mr. Hannah's medical history and the observations the psychiatrist was able to make himself during the assessment process at Waypoint. Similarly, Dr. Van Impe's conclusion that Mr. Hannah has as well an anti-social personality disorder is consistent with the opinions expressed by other psychiatrists on earlier occasions and is not the subject of serious dispute.

123To restate the obvious, that Mr. Hannah suffers from a psychotic mental disorder and also has an anti-social personality disorder are both insufficient to raise, let alone decide one way or the other, the NCR issue advanced by the Crown. Criminal responsibility is presumed. Conduct resulting from a personality or behavioural disorder clearly does not meet the requirement of a "disease of the mind" capable of exempting a person from criminal responsibility. Even if there is a finding that Mr. Hannah's mental disorder caused him to engage in the conduct constituting the alleged offence, the exemption from criminal responsibility is available only if it has been established, again on a balance of probabilities, that the mental disorder causing the act rendered him incapacitated in one of the ways specified by s. 16(1).

124For reasons I will explain, I am satisfied, on a balance of probabilities, that Mr. Hannah's act in striking the blow was attributable to his psychotic mental disorder, rather than simply reflecting his anti-social personality disorder and a state of anger or some other unidentified, non-psychotic motivation that led him to strike her, knowing but not caring that his act was morally wrong. More than that, I am satisfied that the preponderance of evidence supports an inference that there was a delusion of some kind at play that focused on the victim and not only caused him to act in the way he did towards her, but rendered him incapable of evaluating his conduct and knowing that his act was morally wrong according to societal standards. This conclusory statement requires explanation, but I do not share Dr. Van Impe's opinion that such a finding requires an explicit statement from Mr. Hannah or the kind of self-reporting that the psychiatrist evidently considered essential.

125On the other hand, I see no reason not to accept Dr. Van Impe's opinion that when Mr. Hannah assaulted the victim, he appreciated the nature and quality of his act at the time. There is nothing emerging from the evidence that implies that he did not understand that he was physically striking the victim or that he was not fully aware that the immediate physical consequence of punching her in the face would be the risk of the bodily harm that in fact resulted.

126I also have no difficulty accepting Dr. Van Impe's opinion that Mr. Hannah understood, both on an abstract level and in the particular circumstances surrounding his act, that assaulting a person was legally wrong. As pointed out in both the psychiatric report and Dr. Van Impe's oral testimony, the evidence of Mr. Hannah's flight after committing the offence, his aggression towards bystanders in the area of his escape, as well as his efforts to resist his arrest by the police officer, all support the likelihood that he understood very well that his conduct was contrary to the law and that he wanted to avoid the consequences of his conduct.

127At the same time, it is clear Mr. Hannah can be found NCR only if the Crown has proved both that it was his psychotic mental disorder that caused his conduct and that, at the material time, his delusion rendered him incapable of assessing the wrongfulness of his act according to normal societal standards. To use the language employed by Doherty J.A. in Dobson, at para. 24, Mr. Hannah has an NCR defence only if, through the distorted lens of his mental illness, he saw his conduct as justified not only according to his own view, but also according to the norms of society, or if at the time he lacked the capacity to assess the wrongfulness of his conduct against societal norms.

128Despite the trepidation with which one reaches a conclusion at variance with the only expert opinion provided at the NCR hearing, I feel compelled to find that Dr. Van Impe's opinion regarding the ultimate issue of criminal responsibility was simply not persuasive. In my view, as I have said, the preponderance of evidence dictates a contrary conclusion. There are several reasons, I think, why Dr. Van Impe's opinion should not prevail, and why an NCR finding, on a balance of probabilities, is warranted.

129The first reason for not accepting Dr. Van Impe's opinion that an NCR defence was unavailable is simply that Dr. Van Impe did not present his conclusion, which ultimately seemed somewhat equivocal as to whether Mr. Hannah's conduct had a likely psychotic or behavioural explanation, with particular confidence or conviction. It may be that the uncertainty and discomfort he expressed reflected the inherent imprecision of psychiatric diagnostic "impressions" drawn largely from a subjective analysis, as recognized by Arbour J. in Molodowic, but at the same time did not provide a convincing case for accepting his opinion. While Dr. Van Impe appeared to move away from the statement in the written report that he had no idea what Mr. Hannah was thinking, although he could think of no non-psychotic explanation for his conduct, to a more definite opinion in his evidence-in-chief that he was probably psychotic at the relevant time, he then backtracked again in cross-examination, apparently agreeing with the suggestion by amicus that his personality disorder provided an equally plausible explanation for his conduct.

130Dr. Van Impe also made a point of expressly stating that he was merely offering his own personal assessment and repeatedly implied that in the absence of explicit information provided by Mr. Hannah himself, either to the police just after his arrest or to him during the assessment process, he was not comfortable drawing inferences as to his mental state at the relevant time. Dr. Van Impe candidly admitted that other forensic psychiatrists might approach the matter differently.

131In my view, once Dr. Van Impe had the benefit of the booking video showing Mr. Hannah talking to himself at the police station, evidently responding to internal stimuli shortly after the assault, it did not require much of a leap to infer that he was in a similarly psychotic state at the relevant time, particularly given the evidence that the assault was immediately preceded by a grunt or groan, and then followed by his bizarre behaviour, flailing his arms and yelling for no reason as he walked along Bloor Street. Dr. Impe's statement that he believed that Mr. Hannah had not displayed any signs or symptoms of mental illness at the time of the offence was, in my view, simply inaccurate. Indeed, the inference that Mr. Hannah was psychotic at the time seemed quite irresistible.

132Moreover, with respect to inferences that could be drawn concerning the present assault, I think that Dr. Van Impe gave insufficient weight to the evidence concerning the remarkably similar occurrence in Ottawa and Mr. Hannah's delusional explanation that he provided then. While Dr. Van Impe testified that Mr. Hannah's statement then suggested "he had lost, in that moment, the moral ability to really appreciate what he was doing," it was apparent that Dr. Van Impe needed an equally explicit delusional statement focusing on the victim of the assault in this case before he was prepared to draw any similar inferences here. In my view, Dr. Van Impe imposed unrealistically stringent evidentiary requirements that were inappropriate to an issue to be determined on a balance of probabilities, involving a defendant who had managed to adopt, whatever his intellectual limitations, a repeated pattern of refusing to communicate or co-operate in order to prevent others from gaining insight into his thought processes.

133With respect to the particular offence that was committed, I am also of the view that Dr. Van Impe, while recognizing that it was an attack on a stranger for no apparent reason, gave insufficient weight to its completely unprovoked nature and the fact that the violence, according to the evidence called at trial, was directed only at the particular victim. Dr. Van Impe testified that the witness statements he had been given suggested that Mr. Hannah had been acting in a generally angry, belligerent and aggressive manner where his violence could have been directed at anyone who happened to be crossing the street at the time, and not just at the victim he struck. Contrary to the impression he may have had, the evidence at trial was that the only aggression consisted of a loud grunt or a growl immediately preceding a single blow, suddenly out of the blue, aimed directly at the female victim's face. It may be that references in whatever witness statements were provided to Waypoint suggested that the hostility and aggression displayed by Mr. Hannah towards other people on the sidewalk who were in his way as he fled after the assault left room for believing, mistakenly, that witnesses had seen Mr. Hannah acting in this manner before the blow was struck, but the evidence, to repeat it, was that there was no interaction of any kind between the targeted victim and the punch to her face, inflicted without warning, for no explicable reason, and focused on her alone.

134Similarly, Dr. Van Impe seemed prepared to accept the suggestion by amicus that Mr. Hannah's anti-social personality could reasonably account for both the animus directed at the psychiatrist when Mr. Hannah was being assessed at Waypoint and the violence directed at the victim on the street six months earlier. In my view, however, there is no compelling reason to view the quite different situations in the same light or to assume that the same explanation applied to both. The "behavioural" explanation for Mr. Hannah's hostility and, at one point, physical aggression toward Dr. Van Impe himself, an authority figure assigned the responsibility of conducting the assessment which Mr. Hannah was actively resisting, seems more than likely. In my view, however, there is no reason to think that it also accounts for his conduct in the altogether different circumstances involving the assault on a completely innocent stranger who had done nothing to provoke any violence on Mr. Hannah's part.

135I also think that it appears that Dr. Van Impe allowed his opinion, given at least in cross-examination, that Mr. Hannah's act in assaulting the victim could be attributed to a behavioural, sociopathic explanation rather than a psychotic one, to be unduly influenced by unwarranted consideration of "possibilities", unsupported by any evidence, that the psychiatrist believed could not be ruled out. For example, there was no evidence that Mr. Hannah had demonstrated any sign that he had consumed or been affected by alcohol or any other intoxicant at the relevant time, and speculation concerning that possibility as a potential contributing factor to explain his conduct, remained, in my view, unjustified. Similarly, Dr. Van Impe asked rhetorically in his testimony, "Did she smile at him in the wrong way? … And was it just this woman – his kind of anger had reached a boil and she happened to be the one who got it? I think that's a possibility too, because I have no indication beyond the fact that he was probably psychotic." Although consideration of possibilities arising from the evidence can certainly have a role to play in determining what was or was not probable in the circumstances, it is difficult to see that groundless speculation that the victim might have smiled in a particular way or that Mr. Hannah was already in an angry state where he could have lashed out at any other random person is not at all helpful in assessing what likely accounted for the event that actually occurred.

136As already noted, it is obvious both from his written report and his oral evidence that Dr. Van Impe placed considerable importance on the absence of any statement by Mr. Hannah, either the morning of the assault or later, particularly during the protracted assessment process, concerning what he had been thinking at the material time. Indeed, Dr. Van Impe seemed to suggest that without such self-reporting by a person, either intentionally or inadvertently, it would be very difficult to draw inferences as to what was in his mind when he committed a specific act. While, in hindsight with criminal responsibility identified as the most pressing issue, it would have been preferable if the police had made some attempt to interview Mr. Hannah shortly after his arrest and to obtain a statement from him, and while it would have been helpful in addressing the NCR issue if he had been co-operative and forthcoming during the psychiatric assessment at Waypoint, I do not think that the absence of such statements by Mr. Hannah here should preclude the drawing of reasonable inferences from the circumstantial evidence, having regard to the probabilities of the matter.

137Trial judges, of course, are not unaccustomed to dealing with cases where an accused maintains his or her right to silence, pleads not guilty, and simply relies on the presumption of innocence, leaving it to the Crown to prove guilt beyond a reasonable doubt if it is able. If the circumstantial evidence leaves an innocent explanation available as a reasonable inference, then an acquittal will necessarily follow, but a finding of guilt, even on the higher standard of proof beyond a reasonable doubt, has never required that an accused volunteer information or be otherwise co-operative. It strikes me that it would be a very odd situation if the absence of direct evidence from an accused addressing his mental state should be seen by a psychiatrist conducting an NCR assessment as an insurmountable obstacle preventing an opinion based on the rest of the information available.

138In my view, particularly given the lower standard of proof applicable to the NCR issue, Dr. Van Impe placed undue weight on Mr. Hannah's refusal to speak to him or to participate in the assessment process by providing his own explanation of what had been in his mind at the time. The transcript of the arson and mischief endangering life proceedings demonstrate that Mr. Hannah has adopted in the past the same pattern of disengagement and minimal participation that he is undoubtedly entitled to adopt, but in my view, the court's responsibility in a case such as this is to assess the evidence, determine what inferences should be drawn in the circumstances, and to make findings of fact based on the applicable standard of proof. Since that standard involves here a balance of probabilities, there will naturally be areas where reasonable people might disagree as to what inferences are available and what conclusions should be reached based on the totality of the evidence.

139I am not overlooking Dr. Van Impe's evidence that it is unusual for a person suffering from Mr. Hannah's mental disorder to be able to "keep a lid" on his earlier thought processes and, if he had experienced a particular delusion at a specific time, not to eventually share it, especially if he were the subject of prolonged observation during an assessment process. Similarly, I accept that Dr. Van Impe has the professional expertise to observe that it is remarkable that a person burdened, as Mr Hannah sadly is, with so many afflictions – borderline or limited intellectual functioning, schizophrenia or schizoaffective disorder, and anti-social personality disorder – could nonetheless be able to "keep it together" continually, if not continuously, and appear logical, coherent and calm, as he has succeeded in doing not only in the courtroom during the current proceedings, but also when examined by various psychiatrists in the past and in other court proceedings as well. I think it is apparent that Mr. Hannah's psychotic breaks are episodic and that his mental state varies over time. Without necessarily being able to understand exactly how he perceives and reacts to reality generally, it seems clear that his psychosis, at least on some level, permits him to act in a rational and controlled way much of the time. At the same time, however, I do not think that those unusual aspects of Mr. Hannah's mental illness should preclude the drawing of reasonable inferences as to what was probably in his mind when he attacked the victim, given his medical history and, in particular, the Ottawa assault and his delusional explanation for it at the time.

140As already stated, I do not find Dr. Van Impe's opinion concerning the NCR issue to be persuasive. In my view, the evidence establishes, certainly on a balance of probabilities, that Mr. Hannah was in a psychotic state when he committed the act constituting the assault. Dr. Van Impe conceded that himself, at least in the parts of his evidence when he did not agree with the suggestions made by amicus that Mr. Hannah's conduct could just as easily be explained by his personality disorder, perhaps as exacerbated by an intoxicant. A finding that Mr. Hannah was psychotic at the material time is, of course, only the necessary first step in determining the potential availability of a s. 16 exemption from criminal responsibility.

141I am satisfied that his prior history, and in particular the similar offence in Ottawa and his explanation for it, compel inferences as to both the probability of delusional thinking at the time of the present assault, and the probable nature of the delusion that caused Mr. Hannah to commit it. I am prepared to infer that, as was the case in Ottawa, he experienced a delusion focused on the victim, which not only led him to believe that assaulting her was justified and the right thing to do in his own mind, but also probably deprived him of the capacity to evaluate his act and to know that it was wrong, according to normal societal moral standards.

142I should add that I am aware that Dr. Van Impe's testimony concerning Mr. Hannah's apparent delusion at the time of the Ottawa assault and his psychiatric opinion that it appeared to demonstrate that he had lost then "the moral ability to really appreciate what he was doing" was given in the context of stating that an NCR assessment would have been warranted, not that an NCR verdict would inevitably have followed, but I think the probabilities of the matter would certainly have produced that result.

143At the risk of unnecessary repetition, I am of the view that the insight gleaned from the transcript of the proceedings in Ottawa in 2013 provides the basis for understanding the nature of Mr. Hannah's mental illness and compels findings as to his likely thought process when he committed the similar assault here. Admittedly, in the absence of any statement by Mr. Hannah as to what was in his mind at the material time, the evidence remains circumstantial in nature, but I do not think it is necessary to reconstruct the exact content of his delusional thought process or to know precisely what delusional belief he had concerning the victim here. What the evidence does permit, and indeed compels, in my view, applying logic and experience, is a finding that he had the same or comparable delusional belief concerning the woman here as he had in Ottawa, again a complete stranger, that evidently justified in his own mind that assaulting her was the right thing for him to do. More importantly, I am satisfied, at least on a balance of probabilities, that his delusion, regardless of the precise form it took, rendered him incapable of rational perception and, therefore, rational choice about whether his particular act was right or wrong in the circumstances, according to the moral standards of society. In my view, the totality of the evidence, without necessarily precluding any other interpretations, is sufficient to displace the presumption of criminal responsibility and to entitle Mr. Hannah to an NCR verdict with respect to the charge of assault causing bodily harm.

144Counsel agreed that if there was an NCR finding concerning the assault, the same finding should be made with respect to the breach of probation charge alleging that he failed to keep the peace and be of good behaviour, on the same basis that he did not know that his act which constituted the offence was wrong within the meaning of s. 16(1). Accordingly, pursuant to s. 672.34, NCR verdicts are entered on the two counts.

145With respect to the breach of probation charge alleging that he failed to comply with the condition of probation that prohibited him from having lighters in his possession, there was no evidence as to the circumstances in which he acquired the items, why he had them, or what, if anything, he intended to do with them. It was not suggested that the NCR issue could have any application to this offence. A conviction is, therefore, entered on that count for the reasons already stated at a much earlier stage of the proceedings. Given that the pre-sentence custody far exceeds what would have been a fit sentence for this offence, Mr. Hannah is sentenced to one day in jail. In the circumstances, a further probation order seems neither necessary nor appropriate.

146Counsel agreed that rather than proceeding with a disposition hearing under s. 672.45 of the Code, the appropriate disposition should be left to the Ontario Review Board, which will conduct a hearing before October 10, 2020. Mr. Hannah will be detained in custody at the Toronto South Detention Centre, unless a bed becomes available at a hospital prior to the disposition hearing before the Ontario Review Board.