Court of Appeal for Ontario

Date: October 4, 2018 Docket: C52785

Judges: MacPherson, Huscroft and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Trevor LaPierre Appellant

Counsel:

• James C. Fleming, for the appellant
• Eric H. Siebenmorgen, for the respondent

Heard: September 5, 2018

On appeal from the conviction entered by Justice Stephen Glithero of the Superior Court of Justice on January 18, 2010, and from the sentence imposed on January 21, 2010.

MacPherson J.A.:

A. INTRODUCTION

[1] The appellant pleaded guilty to the savage, unprovoked and inexplicable killing of Hugh "Hunter" Brown, a defenceless 74-year-old man delivering Christmas cards to neighbours on a residential street in Kitchener in December 2007. In advance of the trial, he was examined by two psychiatrists; both offered the opinion that the appellant was not eligible for a Criminal Code s. 16 defence of not criminally responsible ("NCR"). The appellant pleaded guilty to second degree murder and assault. The trial judge imposed a sentence of life imprisonment with no possibility of parole for 17 years.

[2] The appellant appealed his sentence. During the appeal process, this court ordered a new psychiatric report. The author of this report, Dr. John Bradford, concluded that the appellant suffered from severe treatment resistant schizophrenia at the time of the commission of the offence and met the threshold to be found NCR. Based on this report, the appellant decided to appeal his conviction as well as the sentence.

[3] The principal issue on the conviction appeal is whether the fresh evidence anchored in Dr. Bradford's psychiatric report is sufficient to sustain a determination, at this juncture, that the appellant was NCR when he killed Mr. Brown. The principal issue on the sentence appeal is whether a parole ineligibility period of 17 years is too harsh.

B. FACTS

(1) The parties and events

(a) The homicide and the assault

[4] On Saturday, December 15, 2007, at approximately 12:45 p.m., Hunter Brown, a 74-year-old man, was walking on his street delivering Christmas cards to his neighbours. The appellant, a 22-year-old Kitchener resident, had been seen standing at a nearby intersection looking straight ahead. The appellant and Mr. Brown were strangers to each other. Mr. Brown said "hello" to the appellant. The appellant said nothing. He took a large knife out of his pocket. He stabbed Mr. Brown more than 40 times, mostly in the head and face.

[5] A neighbour heard the commotion through a window. She saw Mr. Brown on the ground being attacked by a man and then observed the man walking away from a motionless Mr. Brown. The neighbour said that the assailant was walking normally "as if nothing happened".

[6] Two days later, on December 17, Corey Speck, a 35-year-old man living in the same neighbourhood as Mr. Brown, was at home shovelling his driveway. After an exchange of a few words, the appellant attacked Mr. Speck, swiping him in the head. Mr. Speck was able to repel the attack and suffered no injury. He reported the incident to the police and was able to help locate and identify the attacker.

[7] The appellant was arrested. He confessed to both the killing of Mr. Brown and the assault on Mr. Speck. He told police that he killed someone to be "the wrong kind of person" and that he walked around quite a bit on December 15 looking for someone to kill and working up the courage to do it. He said that he killed Mr. Brown to please Satan and because "he thought he was the right one". He also stated that "the voices were telling me that [Mr. Brown] was a Christian. These voices wanted me to kill Christians and they keep on saying that."

[8] Following his confession, the appellant was placed in a holding cell. He told an undercover police officer, who was posing as another inmate, that he needed to kill someone and he did it "to save himself" and that his "boss made him do it". The appellant also stated he was "going to use the insanity defence".

(b) Pre-trial psychiatric history

[9] Prior to trial, the appellant underwent assessments of his Fitness to Stand Trial and Criminal Responsibility. The Crown and the defence each retained psychiatrists to provide expert reports.

[10] Dr. Derek Pallandi, the psychiatrist retained by the Crown, offered the opinion that the appellant did not suffer from a major mental illness and was fit to stand trial. He was of the view that the appellant was malingering. Dr. Pallandi relied on a psychology report prepared by Dr. Percy Wright. Dr. Wright noted that the appellant displayed no overt signs of thought disorder and was cognitively quite organized, but added that he was "clearly a troubled man", possibly suffering from periods of depression. It was unclear to him whether the appellant had a psychiatric disorder. He strongly urged that caution be exercised in basing a s. 16 defence on self-reported symptoms. Dr. Pallandi concluded:

Summarily, I am of the opinion that Mr. LaPierre does not suffer from a major mental illness as typically defined from a psycholegal perspective. He is malingering psychotic and cognitive symptoms and likely has done so for some period of time in the past to gain admission to hospital.

[11] Dr. Julian Gojer, the psychiatrist retained by the defence, also concluded that a s. 16 defence was not available to the appellant. Dr. Gojer agreed that there was "an embellishing of, or manufacturing of psychotic symptoms" and that the appellant "was likely to be able to appreciate the nature and consequences of his actions and know that what he was doing was morally wrong". Dr. Gojer did make a diagnosis of a personality disorder with borderline schizoid traits; he stated that a psychotic illness could not be ruled out and that it was possible that at the height of his distress he experienced psychotic symptoms.

(c) The conviction and sentence

[12] The appellant, who had been charged with first degree murder, decided not to advance an NCR defence. He pleaded guilty to second degree murder. The trial judge accepted the plea. The appellant does not challenge this proceeding.

[13] Three days after the conviction, the trial judge imposed a sentence of life imprisonment with a period of parole ineligibility of 17 years. He identified many aggravating factors in support of this sentence – the killing was brutal and senseless, the degree and duration of force used were excessive, the killing occurred in broad daylight in a quiet residential neighbourhood, the appellant was armed with a hunting knife, the victim was 74 years old, unarmed, and much smaller than the appellant, the appellant went home and acted as though nothing had happened, he lied to the police until faced with the prospect of damning physical evidence, and ultimately he told the police that he had walked around looking for someone to kill.

(d) Post-conviction psychiatric history

[14] After the appellant was sentenced on January 21, 2010, he was assigned to Kingston Penitentiary. Six months later, on July 30, 2010, he was transferred to the Regional Treatment Centre ("RTC") in Kingston. He stayed there for several years in the Psychosocial Rehabilitation Unit under the care of psychiatrist Dr. Stephen Hucker. In a letter dated June 18, 2013, Dr. Hucker noted that when the appellant was first admitted to the RTC in 2010 from Kingston Penitentiary, he was described as suffering from "severe intractable schizophrenia".

[15] Based on Dr. Hucker's information, and within the framework of his sentence appeal, Tulloch J.A. ordered an assessment, pursuant to s. 672.11 of the Criminal Code, "to determine whether the accused suffered from a mental disorder so as to exempt the accused from criminal responsibility by virtue of s. 16(1) of the Criminal Code at the time of the commission of the offences."

[16] The court-ordered assessment was conducted by Dr. John Bradford. He interviewed the appellant multiple times over a 60-day period and carefully considered the medical material. He concluded that, from a forensic psychiatric standpoint, the appellant had a mental disorder – severe treatment resistant schizophrenia – when he killed Mr. Brown and that he was not capable of knowing that this was morally wrong.

[17] Following Dr. Bradford's report, there was a flood of supplemental reports from Dr. Pallandi, Dr. Gojer and Dr. Bradford himself. As well, Dr. Bradford was examined and cross-examined on his report, Dr. Pallandi was cross-examined and re-examined on his reports, and Dr. Gojer was cross-examined on his reports. I think it is fair to say that, on the ultimate question of whether an NCR defence was available to the appellant at the time of his trial in 2010, the three doctors' answers would be: Dr. Bradford – Yes; Dr. Pallandi – No; Dr. Gojer – "on the fence".

(e) Sentence appeal – fresh evidence

[18] On August 2, 2018, the appellant also filed a notice of application to admit fresh evidence on the sentence appeal relating to the period of parole ineligibility. The proposed fresh evidence includes Referral Decision Sheets for Voluntary Institutional Transfer and Offender Security Level; Assessments for Decision for Voluntary Institutional Transfer and Security Level; an Updated Correctional Plan; Program Performance Reports; and a 2013 Psychological/Psychiatric Assessment Report. These reports tend to show that the appellant has made good progress during his eight years in prison.

C. ISSUES

[19] The issues on the appeal are:

1. On the conviction appeal, should the fresh evidence tendered by the appellant be admitted?

2. If the fresh evidence is admitted, what should be the disposition – an NCR declaration or a new trial limited to the NCR defence?

3. On the sentence appeal, should the period of parole ineligibility be reduced?

D. ANALYSIS

(1) Conviction appeal – fresh evidence

[20] The appellant's essential position is that the fresh evidence, especially the diagnosis of Dr. Bradford, conclusively establishes that the appellant was profoundly misdiagnosed, particularly by Dr. Pallandi, prior to his trial. The appellant's true condition when he killed Mr. Brown in December 2007 was that he suffered from the mental disorder, severe treatment resistant schizophrenia.

[21] Against the backdrop of this diagnosis, if the trial had proceeded, the appellant would have been able to avail himself of a very triable, and likely successful, Criminal Code s. 16 defence.

[22] In R. v. Palmer, [1980] 1 S.C.R. 759 at 775, the Supreme Court of Canada set out the four criteria that should be considered if an appellant seeks leave to introduce fresh evidence on an appeal:

• the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

• the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

• the evidence must be credible in the sense that it is reasonably capable of belief; and

• it must be such that if believed it could reasonably, when taken with the other evidence adduced at the trial, be expected to have affected the result.

[23] The appellant can easily establish the first three of the Palmer criteria. Dr. Bradford's evidence could not have been adduced at trial. There was no trial – the appellant pleaded guilty. The evidence is highly relevant – it bears on the potentially decisive issue of whether the appellant was NCR when he killed Mr. Brown. Finally, the evidence is credible – Dr. Bradford is an experienced and highly respected psychiatrist in the criminal justice system.

[24] The crux of the matter on this issue is the fourth Palmer criterion – could Dr. Bradford's evidence, if believed, and taken together with the other evidence, have affected the result?

[25] There is no question that Dr. Bradford's evidence is strong and clear.

[26] On the question of diagnosis, Dr. Bradford says:

From a forensic psychiatric standpoint, with a reasonable degree of certainty, in my opinion, Mr. LaPierre was clearly suffering from a mental disorder, specifically treatment resistant schizophrenia, prior to; at the material time of the index offences; and subsequently….

[27] And, on the ultimate question – the effect of this disease on the appellant's state of mind when he killed Mr. Brown – Dr. Bradford says:

At the time of the index offences Mr. LaPierre would not have been in control of his operating mind in terms of making rational decisions. Furthermore, he was driven by a delusional belief that most people killed and that he had to kill in order to save his soul. In my opinion, this would fit the definition of the second branch of Section 16(1) of not knowing that what he was doing was wrong in terms of moral wrongfulness subject of course to the legal definitions and interpretation of this section of Section 16(1). This is my opinion, however, based on a reasonable degree of medical certainty.

[28] I begin my analysis with two contextual points.

[29] First, the appellant argues, relying on the evidence of Dr. Bradford, that he was misdiagnosed during his pre-trial forensic assessment. He seeks to hold Dr. Pallandi and Dr. Gojer, as well as the psychologists with whom they worked, responsible for this. Yet it was found by the trial judge, and even accepted by the appellant's trial counsel, that the appellant, by his own conduct, frustrated the attempts by health care professionals, including those retained by his own counsel, to properly diagnose him. As stated by the trial judge in the context of the parole eligibility determination:

I am left without any expert evidence as to how long any appropriate form of treatment would take and no information as to the likely rate of success of any such treatment. The lack of such relevant information … is largely the result of efforts by Mr. LaPierre in feigning, exaggerating, malingering and generally being manipulative with mental health care professionals in his efforts to achieve what he thinks to be a favourable result.

The nature and extent of his mental difficulty remains undetermined, largely as a result of his own choices as to how to interact over the years with mental health professionals. He has tried to influence them to his own advantage. As a result, he stymied them in their efforts to find out what is wrong with him and what can be done about it.

[30] Second, due to the progressive and changing nature of major mental disorders, including schizophrenia, it cannot be definitively inferred that a condition described as severe treatment resistant schizophrenia in 2010 existed in that form in 2007 when the killing took place. In the appellant's case, there is compelling evidence that his mental condition deteriorated sometime between the 2009 pre-trial assessment and his post-sentence arrival at the RTC in July 2010. Dr. Gojer pointed this out, and the appellant appears to acknowledge this deterioration, saying in his factum at para. 27, "The appellant's mental condition acutely deteriorated as he made his way into the penitentiary system after sentence was imposed on January 21, 2010. The appellant was admitted to the Millhaven Assessment Unit (MAU) on February 10, 2010. The appellant was ultimately transferred from KP to RTC within his first two months in federal custody."

[31] Against this backdrop, I turn to a consideration of Dr. Bradford's opinion which serves as the foundation for the appeal. In the end, I do not think that Dr. Bradford's ultimate conclusion, namely, that the appellant, at the time he killed Mr. Brown, did not know that "what he was doing was wrong in terms of moral wrongfulness", is sustainable. I say this for several reasons.

[32] First, Dr. Bradford himself recognized that the concept of moral wrongfulness has different meanings in medical and legal contexts (he qualified his ultimate conclusion set out above, with "subject of course to the legal definitions and interpretation of … Section 16(1)"). In my view, Dr. Bradford's ultimate conclusion about the appellant's knowledge of moral wrongfulness is inconsistent with the legal definition of those words.

[33] The legal definition of moral wrongfulness is set out in R. v. Oommen, [1994] 2 S.C.R. 507, and was summarized by this court in R. v. Woodward, 2009 ONCA 911, at para. 5: "[T]he 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" (emphasis in original).

[34] Dr. Bradford was aware of this legal definition. In cross-examination, he answered a question in this fashion:

Q. And you agree that it's not enough that the act was a result of a delusion, that if the accused was capable of knowing that in spite of a delusion, that the act in the particular circumstances were wrong on a societal standard?

A. Yeah. That's a legal test. [Emphasis added.]

[35] However, in his reports and in cross-examination on his reports, Dr. Bradford consistently grounded his analysis in the appellant's subjective views about his thoughts and behaviour; he spoke of the appellant's "internal motivation" for what he had done, not "the ordinary moral standards of reasonable members of the community": see Woodward. Dr. Bradford's ultimate conclusion about "moral wrongfulness" is, therefore, grounded in the medical, not the legal, definition of that term.

[36] Second, the appellant's actions surrounding his killing of Mr. Brown belie a legitimate NCR defence. Before the killing, the appellant was seen in a busy section of Kitchener. He moved from there to a quiet residential neighbourhood. He admitted that he walked around for quite a while looking for someone to kill. There appeared to be no one else around (at least outdoors) when the appellant attacked Mr. Brown. Immediately after the attack, a woman in a nearby house saw the attacker walk away quickly. When the appellant got home, he changed his toque because he "didn't want to go to jail", changed his jacket, and cleaned the blade of his knife and put it in a drawer. In the view of his father who spent time with him that evening, the appellant seemed fine.

[37] Third, the appellant's own utterances near the time of the killing also belie a legitimate NCR defence. When the appellant confessed to the killing during a police interview three days later, he said:

Q. And then what did you do Trevor?

A. I did the wrong thing.

Q. What was the wrong thing?

A. (crying) I did the wrong thing and killed him.

Q. You killed him how Trevor?

A. With a knife.

Q. And where did you stab him?

A. The quickest way to die.

Q. And what way is that?

A. In the face.

[38] Further, Dr. Gojer, in his report dated December 12, 2009, recorded the following admission:

With further interviewing, I challenged him on the authenticity of the voices that he had described. He did not retract his assertions that the voices that he had described. He did not retract his assertions that the voices were experienced by him but described them as paranormal phenomena. He admitted that he was concerned about his future, the nature of the charges he was facing and that it was possible that he had begun to dwell on thoughts of isolation, alienation from society and that thoughts that he had of God and Satan became prominent in his mind to the extent that he found life unbearable. He felt angry towards the world and began to think of Satan as influencing his thoughts and actions. In this context he became angry with Christians and felt that he had to appease Satan. He said that he was aware that killing was legally and morally wrong. [Emphasis added.]

[39] Fourth, when he was placed in a cell three days after the homicide, the appellant told an undercover police officer who was pretending to be a fellow inmate that he was "going to use the insanity defence". In cross-examination, Dr. Bradford acknowledged some of the detail relating to this statement:

Q. From my review of Constable Layne's evidence, there was also an indication beyond just saying that he wanted to use the insanity defence, that he thought he would be NCR and hoped to get 7 to 12 years. Do you recall that detail as to providing a specific time range for his incarceration which he hoped to achieve?

A. I believe so. I could check if you like.

Q. So, you accept that he actually gave a time range for when he expected to hope to be out after an NCR defence?

A. Right.

[40] Taking these factors together, I am prepared to accept Dr. Bradford's diagnosis of the appellant, namely, that he suffered from schizophrenia when he killed Mr. Brown. I am also prepared to accept that there may well have been a causal relationship between the appellant's illness and the criminal offences he committed in December 2007. However, these two conclusions are not enough to establish that at the material time the appellant was incapable of knowing that his conduct was wrong according to the ordinary moral standards of reasonable members of society. Dr. Bradford's evidence was, overwhelmingly, directed to the appellant's subjective belief that his conduct was justified and not to his awareness of societal moral standards, as required by Oommen and Woodward. Accordingly, I would not give effect to this ground of appeal. I would not admit the fresh evidence because it could not reasonably be expected to have affected the result at the trial.

(2) Remedy

[41] In light of my conclusion on the first issue, this issue does not arise.

(3) The sentence appeal

[42] The appellant contends that the 17-year period of parole ineligibility imposed by the trial judge in 2010 is too long. In support of this position, the appellant has filed an Application Record to Admit Fresh Evidence on Sentence Appeal of Parole Ineligibility. The material in this record establishes that the appellant has made progress during his incarceration in the federal penitentiary system. Indeed, in an internal report dated July 3, 2018 dealing with a proposal to transfer the appellant to a minimum security unit at Collins Bay Institution, Correctional Service Canada noted, "There are no incompatibles … to prevent the transfer. Also, there are no physical or mental health care concerns that will preclude as noted in consultations with health care and psychology."

[43] I see nothing in the trial judge's reasons that would suggest that a 17-year period of parole ineligibility was unfairly imposed or too harsh. The recent fresh evidence does not change this conclusion.

E. DISPOSITION

[44] I would dismiss the conviction and sentence appeals.

Released: October 4, 2018

"J.C. MacPherson J.A."

"I agree. Grant Huscroft J.A."

"I agree. I.V.B. Nordheimer J.A."