Court of Appeal for Ontario
Date: June 28, 2018 Docket: C61119 Judges: Doherty, Pepall and Nordheimer JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Mark Dobson Appellant
Counsel
For the Appellant: James C. Fleming
For the Respondent: Eric H. Siebenmorgen and Amy Alyea
Hearing and Appeal
Heard: June 4, 2018
On appeal from: The convictions entered on January 15, 2015, by Justice David Watt of the Superior Court of Justice for first degree murder, with reasons reported at 2015 ONSC 2865.
Decision
Doherty J.A.:
I. Overview
[1] The appellant killed his two friends and tried to kill himself. He was charged with two counts of first degree murder. The trial proceeded before a judge alone. The appellant advanced a not criminally responsible on account of mental disorder ("NCR") defence. The defence argued that the appellant suffered from a mental disorder that rendered him incapable of knowing that it was wrong, in the circumstances, to kill his two friends.
[2] The trial judge convicted. The appellant raises four grounds of appeal:
Did the trial judge misinterpret the phrase "knowing that it was wrong" in s. 16(1) of the Criminal Code, R.S.C. 1985, c. C-46?
Did the trial judge's finding that the appellant was not in a psychotic state at the time he killed his friends reflect a misapprehension of the evidence or an unreasonable finding of fact?
Should this court recognize the partial defence of "diminished responsibility"?
Should this court recognize the partial defence of "suicide pact"?
II. Facts
[3] The facts of this tragic case are not in dispute and are fully set out in the reasons of the trial judge. Essentially, the appellant, his girlfriend, and another friend of theirs decided to commit suicide together so that their souls would travel to a different, divine world. The appellant claims to have been in contact with Satanistic beings who advised him about how to carry out the planned murder-suicide. They developed a plan whereby the appellant would ensure the deaths of his two friends, and then kill himself. Not surprisingly, expert psychiatric evidence called by both the defence and the Crown figured prominently at the trial.
[4] It was common ground at trial that the appellant suffered from a significantly debilitating mental disorder at the time he killed his friends and that there was a causal relationship between his mental disorder and the killings. The defence experts diagnosed the illness as schizophrenia. The Crown experts were more inclined to a diagnosis of schizotypal personality disorder. The trial judge observed, correctly, that for the purposes of determining whether the appellant suffered from a mental disorder under s. 16, the exact diagnosis was not crucial.
[5] Three of the four experts called agreed that the appellant's mental disorder did not render him incapable of appreciating the nature and quality of his acts at the time of the killing. The defence did not take the position that the evidence showed that the appellant was incapable of appreciating the nature and quality of his actions.
[6] All of the experts agreed that the appellant knew when he killed his friends that his actions were legally wrong. The experts, however, disagreed on whether the appellant knew that his actions were morally wrong, as that concept has been judicially interpreted.
[7] The trial judge provided his understanding of the word "wrong", at para. 120:
Under the second branch of section 16(1), the term "wrong" refers to morally wrong, that is to say, contrary to the ordinary moral standards of reasonable men and women. What is "morally wrong" is not to be judged by the personal standards of the person charged but, rather, by his or her awareness that society regards the conduct as wrong. In other words, the exemption extends only to those accused of crime who, because of a mental disorder, are incapable of knowing that society generally considers their conduct to be immoral. [Citations omitted.]
[8] The trial judge went on, at para. 121, to emphasize that the "wrongness" inquiry does not take place at a general or abstract level, but rather is directed at the accused's capacity to understand that his actions, in the specific circumstances, would be regarded as wrong according to the moral standards of reasonable members of society.
III. Grounds of Appeal
(1) Did the trial judge err in his interpretation of "knowing that it was wrong" in s. 16(1)?
[9] Section 16(1) reads:
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. [Emphasis added.]
[10] The appellant submits that the trial judge erred in construing the "wrongness" component of s. 16(1) as limited to a cognitive awareness of how society would regard the morality of the appellant's actions. The appellant submits that "wrongness" also requires a consideration of volitional incapacity. In other words, did the appellant at the time he killed his friends have the capacity for rational judgment or choice? The Crown argues that the trial judge correctly captured the meaning of "wrong" in s. 16(1): see R. v. Dobson, 2015 ONSC 2865, 327 C.C.C. (3d) 473, at paras. 120, 160, 161, 170.
[11] Counsel's arguments ranged over an extensive body of case law. Both, however, settled on R. v. Oommen, [1994] 2 S.C.R. 507 as the leading authority on the meaning of "wrong" in s. 16(1). They disagree as to what the case says.
[12] In Oommen, the accused suffered from a mental disorder that manifested itself in delusions that people, including the victim who was staying with the accused, were conspiring to harm him. On the night of the homicide, the accused, in a delusional state, believing that his home was surrounded by his enemies and that the victim was about to stab him, shot and killed the victim. In fact, the victim was lying asleep on the floor when the accused shot her.
[13] The accused asked a neighbour to call the police. When the police arrived, the accused told them:
I shot and killed a girl inside. She thought I was sleeping. She came with a knife. I had no other choice, so I shot her, okay.
[14] The trial judge concluded that the NCR defence was unavailable as the accused had the capacity to know in general terms that society would regard killing another as wrong. At the same time, the trial judge acknowledged that in his delusional state, the accused believed that what he did was justified to save himself: Oommen, at p. 514.
[15] McLachlin J., for a unanimous court, held that the trial judge had erred in focusing on the accused's ability to understand right from wrong on a general level. She indicated that the trial judge should have focused on the accused's capacity to know his act was wrong at the time of the killing and in the circumstances of the killing: Oommen, at pp. 522-23.
[16] The ratio of Oommen is relatively narrow. However, in arriving at that conclusion, the court examined, in broader terms, the meaning of "wrong" in s. 16(1).
[17] The appellant submits Oommen stands 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. If a delusional state precludes the making of a rational choice, the appellant maintains that Oommen holds that the accused does not have the capacity to know his act is "wrong".
[18] In advancing this position, the appellant refers to two passages in Oommen, at pp. 518 and 520, respectively:
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.
Thus the question is not whether, assuming the delusions to be true, a reasonable person would have seen a threat to life and a need for death-threatening force. Rather, 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.
[19] The Crown submits that Oommen does not suggest assessing the capacity of an accused to know that his actions were "wrong" exclusively by reference to his or her delusional perceptions. The Crown submits that it is not enough that the accused, in his delusional state, believed his acts were "right" according to his or her own moral code. On the Crown's approach, an accused can be found NCR only if that accused lacked the capacity to know that society would regard what he did, in the circumstances, as morally wrong. The Crown refers to two passages from Oommen in support of its position, at pp. 520 and 521, respectively:
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 …
Finally, it should be noted that we are not here concerned with the psychopath or the person who follows a personal and deviant code of right and wrong. The accused in the case at bar accepted society's views on right and wrong. The suggestion is that, accepting those views, he was unable because of his delusion to perceive that his act of killing was wrong in the particular circumstances of the case. On the contrary, as the psychiatrists testified, he viewed it as right. This is different from the psychopath or person following a deviant moral code. Such a person is capable of knowing that his or her acts are wrong in the eyes of society, and despite such knowledge, chooses to commit them.
[20] The Crown further submits that its interpretation of the meaning ascribed to "wrong" in Oommen is consistent with earlier Supreme Court of Canada jurisprudence. In R. v. Chaulk, [1990] 3 S.C.R. 1303, the seminal case on the meaning of "wrong" in s. 16, Lamer C.J.C., for the majority, said, at p. 1357:
The accused will not benefit from substituting his own moral code for that of society. Instead, he will be protected by s. 16(2) if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society.
[21] In R. v. Ratti, [1991] 1 S.C.R. 68, a case in which the accused, like the accused in the present case, suffered from schizophrenia, the Chief Justice explained the meaning of "wrong", at p. 80, in these terms:
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 a result of his delusion. Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society. [Emphasis in the original.]
[22] 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. Ross, 2009 ONCA 149, at paras. 24-27; R. v. Woodward, 2009 ONCA 911, at para. 5; R. v. Guidolin, 2011 ONCA 264, at paras. 17-18; R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 247, at paras. 56-58; R. v. Campione, 2015 ONCA 67, 321 C.C.C. (3d) 63, at para. 30.
[23] A recent description of the "wrongfulness" inquiry under s. 16(1) from this court is found in Campione, at paras. 39-41:
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.]
[24] 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 wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.
[25] There was evidence from the defence experts that the appellant did not know his acts were wrong in the sense defined in the preceding paragraphs. Dr. Rootenberg opined:
During the material time, Mr. Dobson's mental state was so thought disordered that he was unable to rationally consider whether his actions were right or wrong in a way most people would ordinarily be able to do so.
[26] Dr. Chaimowitz expressed a similar opinion:
I believe he felt compelled to do what he did based on the belief system that was epitomized by his delusional ideas and framed by the Satanic system … I believe his psychotic symptoms were sufficient in intensity to deprive him of the ability to recognize what he was doing was wrong from a moral perspective …
[27] The Crown experts offered a contrary opinion, relying in part on the appellant's statements to them that he knew that society would regard the killing of his friends as morally wrong.
[28] The trial judge considered these opinions at length. He also considered the appellant's conduct leading up to the killings and many statements the appellant made to first responders and the police: Dobson, at paras. 136-55.
[29] As I read the trial judge's reasons, he was prepared to accept that the appellant, applying his distorted sense of right and wrong, may have seen his actions as right. However, the appellant reached that conclusion having the capacity to know that society would regard the acts as morally wrong. The trial judge said, at para. 163:
It is perhaps implicit in Mark Dobson's explanation of why it was he unlawfully killed Mary Hepburn and Helen Dorrington and tried to kill himself that he viewed his conduct as morally justified, since it would result in their souls being together in a better place. But Mark Dobson's own views about the moral justification for his conduct, which as even he points out, are contrary to the teachings of the Joy of Satan, is a different issue than that framed by the second branch of section 16(1) – his capacity to know how others in the community would assess the morality of his acts. These were acts that Mark Dobson knew were legally wrong. In those circumstances, I simply cannot accept that he was incapable of knowing that the same acts in the circumstances would be regarded as morally wrong by members of the community. [Citations omitted.]
[30] Ultimately, after a thorough review of all of the evidence, the trial judge concluded that the appellant had failed to establish, on the balance of probabilities, that he did not have the capacity to know that his actions would be viewed as morally wrong in the eyes of reasonable members of the community: Dobson, at paras. 170-71. His analysis reflects a proper understanding of the meaning of "wrong" as reflected in the post-Oommen jurisprudence of this court. It also demonstrates a full appreciation of the relevant evidence.
(2) Did the trial judge's finding that the appellant was not in a psychotic state when he killed his friends reflect a misapprehension of the evidence or an unreasonable finding of fact?
[31] The appellant submits that the trial judge's finding that the appellant was not in a psychotic state at the time of the homicides is irreconcilable with his finding that the appellant suffered from schizophrenia. Counsel submits that these conflicting findings can be explained only by a material misapprehension of the evidence or an unreasonable assessment of the evidence.
[32] This submission fails for two reasons. First, the expert evidence that the appellant suffered from schizophrenia did not compel the conclusion that the appellant was in a psychotic state at the time of the killings. Psychotic delusions are a feature of schizophrenia, but those diagnosed with the disorder do not necessarily experience such symptoms at all times.
[33] Second, the trial judge did not actually make a finding that the appellant was not in a psychotic state at the time of the killings. Rather, he declined to make a finding that the appellant was in a psychotic state: Dobson, at para. 165. The distinction is important, given that the appellant had the onus of proof on the NCR claim. In declining to make the finding, the trial judge adverted to concerns about the reliability of information provided to the psychiatrists by the appellant. In my view, the trial judge, as the trier of fact, was entitled to take that view of the evidence.
(3) Should the court recognize the partial defence of diminished responsibility?
[34] The appellant asked the court to recognize "diminished responsibility" as a partial defence to murder. The proposed defence would reduce what is defined in the Criminal Code as murder to manslaughter where mental disorder impairs the accused's capacity to appreciate the nature and quality of the act, or know that it was wrong. The appellant points to various common law jurisdictions, notably England and Wales where a statutorily-created defence of diminished responsibility has existed for years: Homicide Act 1957 (5 & 6 Eliz. 2, c. 11), s. 2.
[35] The appellant submits that s. 8(3) of the Criminal Code gives Canadian courts the power to recognize (i.e. create) a common law defence of diminished responsibility.
[36] The appellant does not raise a constitutional challenge. He does not argue that the definition of murder in the Criminal Code is unconstitutional, absent the partial defence of diminished responsibility. Nor does the appellant suggest that any provision in the Charter constitutionally commands the creation of the diminished responsibility defence. The appellant does argue that criminal law principles, particularly the principle of "fair labelling" should cause this court to recognize that those who commit murder while suffering from a mental disorder that negatively impacts on their responsibility for their actions, are inherently less culpable than persons who commit the same act, but do not suffer from a mental illness. The appellant contends that a manslaughter verdict, coupled with the broad sentencing discretion available for that offence, would properly reflect the different levels of culpability.
[37] This issue was not raised at trial. More importantly, in my view, it is an issue that can only be properly addressed by Parliament. The debate over the need for and the contours of a diminished responsibility defence has gone on for over 60 years in most of the common law world. Various law reform bodies have made various recommendations and various legislatures have had various responses. To date, Parliament has chosen not to go down the road of diminished responsibility.
[38] As the academic literature and various law reform commission reports demonstrate, there are many difficult policy questions that must be addressed in deciding whether to recognize a defence of diminished responsibility and, if so, what the defence should be and what dispositions should follow from a finding of diminished responsibility. Those questions are complex and contentious. Informed decisions require long and careful study with input from various disciplines and stakeholders. None of that is available to a court deciding a single case. The adversarial process is singularly unsuited to the wise resolution of the multi-faceted and difficult policy issues raised by the consideration of diminished responsibility as a partial defence to murder.
(4) Should this court recognize the partial defence of "suicide pact"?
[39] This issue was also not raised at trial. The appellant again invokes s. 8(3) of the Criminal Code and urges the court to recognize the common law defence of "suicide pact". According to the appellant's submission, that defence would give the survivor of the suicide pact a partial defence to what would otherwise be murder. The appellant submits that the survivor should be convicted of manslaughter. As with the diminished responsibility defence, he argues that a manslaughter verdict would more accurately reflect the culpability of the survivor of the suicide pact.
[40] The appellant refers to R. v. Gagnon (1993), 84 C.C.C. (3d) 143, 24 C.R. (4th) 369 (Que. C.A.). In Gagnon, the accused and his girlfriend decided to commit suicide. They laid on a bed with the girlfriend on top of the accused. The accused fired a single bullet into both bodies. The bullet killed the girlfriend and injured the accused.
[41] The court in Gagnon accepted a very narrow "suicide pact" defence. That defence was available only when the parties formed a common and irrevocable intention to commit suicide together, simultaneously by the same event and the same instrumentality, and where the risk of death was identical for both: Gagnon, at p. 155. The court distinguished a true suicide pact from a murder-suicide pact in which one person agreed to first kill the other and then kill himself. Gagnon would not have extended the "suicide pact" defence to the murder-suicide situation.
[42] This case involves a double murder-suicide. The very narrow defence outlined in Gagnon, which led to an outright acquittal on the murder charge, does not assist the appellant. His defence, if any, as with most people who kill pursuant to a suicide pact, lay under the NCR provisions in s. 16.
[43] Furthermore, it is implicit in this submission that this court recognizes a partial common law defence to murder if a person kills another pursuant to a suicide pact. No such defence has been recognized by this court. Nor should it be recognized in the context of an appeal in which the defence would not be available on the facts.
[44] In any event, for the same reasons outlined in reference to the proposed defence of "diminished responsibility", the question of whether a person who kills pursuant to a suicide pact should have a partial defence to murder is probably a matter that is much better addressed by Parliament.
IV. Conclusion
[45] I would dismiss the appeal.
Released: June 28, 2018
"Doherty J.A."
"I agree S.E. Pepall J.A."
"I agree I.V.B. Nordheimer J.A."
