DATE: 20030319 DOCKET:C30304

COURT OF APPEAL FOR ONTARIO

ABELLA, GOUDGE AND MACPHERSON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

I. E. M.

Appellant

Gregory Lafontaine for the appellant

Thomas D. Galligan for the respondent

Heard: December 13, 2002

On appeal from the conviction by Justice C.N. Herold of the Superior Court of Justice dated May 2, 1996.

GOUDGE J.A.:

[1] On August 22, 1994 the appellant killed her two sons. One boy was two years old. The other was four. She beat them with a hammer and asphyxiated them with plastic grocery bags.

[2] On May 2, 1996 the appellant was convicted of two counts of murder, having instructed her counsel not to raise as a defence that she was not criminally responsible on account of mental disorder.

[3] On her appeal from conviction, the only argument she makes is based on the fresh evidence tendered in this court that not only is her present diagnosis that of paranoid schizophrenia, but also that at the time she killed her sons she was suffering from the effects of a severe paranoid psychosis and as a result was incapable of appreciating the nature and quality of her acts or of knowing that those acts were wrong. She asks this court to set aside her conviction and substitute the finding that she was not criminally responsible on account of mental disorder (NCRMD).

[4] For the reasons that follow I would accept that argument, allow the appeal, quash the conviction and find the appellant not criminally responsible on account of mental disorder.

THE TRIAL

[5] The appellant was born on May 19, 1958. She had a very difficult childhood. Her mother suffered from delusions and was hospitalized for a period of time as a result of her mental health problems.

[6] The appellant met B. M. while at high school. They were married in 1979 but their relationship was not happy and they were divorced the next year. The appellant pursued her own life until 1989 when, after several sessions with a psychiatrist, she contacted B. M. again and they revived their relationship. In 1989, they moved in together. Their two sons were born on March 1, 1990 and October 3, 1991.

[7] By the summer of 1993, the relationship had deteriorated significantly. On August 9, 1993 B. M. was incarcerated to serve a sentence for importing narcotics.

[8] In the same month, events took place which resulted in Mr. M.'s conviction on January 27, 1994 for sexually assaulting the appellant and uttering death threats to her. He was sentenced to 30 months in prison.

[9] On December 11, 1993 the appellant attempted suicide by overdosing on sleeping pills. On December 16, 1993 she was diagnosed by her family doctor as suffering from anxiety, depression and delusions of persecution. The doctor also noted that she may be suffering from paranoid schizophrenia.

[10] On December 21, 1993 the appellant was granted full custody of her sons with Mr. M. being given visitation rights.

[11] Through the first eight months of 1994 the appellant expressed the fear that Mr. M. was going to kill her and take the children away once he was released from prison, or would send someone to do so while he remained in prison. She told her close friend that she was being watched and spied upon, and that she believed her car was being tampered with.

[12] Despite all this, many witnesses testified that the appellant was a very good mother who devoted herself to her sons.

[13] By the summer of 1994, the appellant believed that events were building to a climax. She began to think that Satanists might also be involved. She felt that people were going to take her children and that she was going to die.

[14] In August 1994, she quit her job as an insurance broker which she had held for four months. She also cancelled both her life insurance policies. On the weekend of August 20/21 she took her sons to a nearby conservation area to camp, although she appeared very ill prepared to do so. On Sunday night, August 21, she checked into a local motel. The next morning, the bodies of her sons were found in the motel room a short time after the appellant had been rescued while attempting to commit suicide by setting herself and her car on fire a short distance from the motel.

[15] The Crown's theory at trial was that the appellant killed her sons and attempted to commit suicide because of her anger at her husband and her fear of his taking the children away.

[16] The defence position at trial was that while the appellant was admittedly guilty of manslaughter, she lacked the specific intent necessary to be convicted of murder.

[17] The appellant did not testify. However, the defence did call Dr. Ben-Aron who gave the only psychiatric evidence at trial. He had been retained by the defence in early September 1994, shortly after the appellant was charged. He interviewed her on seven occasions between then and March 1995. While his report to defence counsel began with his determination that she met the threshold required for fitness to stand trial, its major thrust was his opinion that her mental state at the time was so impaired that she did not have the capacity to form the specific intent to do the acts which caused the boys' death. In addition, however, his report also gave his opinion that it could be argued that the appellant was suffering from a mental disorder at the time she killed her sons and as a result was not able to appreciate what she was doing.

[18] At trial, Dr. Ben-Aron was directed not to base his evidence on his interviews with the appellant, since she had decided not to testify. Rather he gave his evidence on the basis of hypothetical facts and the evidence of a number of other witnesses for whom he had been present. His testimony concerned the appellant's mental state at the time of the killing and its possible effect on her capacity to form the specific intent required for murder. He said that the appellant suffered from a major mental illness, namely a type of psychotic illness which was a delusional disorder presenting a schizophrenic-like picture. He testified that this could have significantly impaired her ability to form the intent to do a specific act. However, his evidence was that he could not say that as a result of her mental illness she lacked the necessary specific intent for murder, but only that in his opinion this was a very real possibility.

[19] Dr. Ben-Aron gave no evidence at trial directed to the criteria for the NCRMD defence set out in s. 16 of the Criminal Code. He did not address whether the appellant's mental disorder rendered her incapable of appreciating the nature and quality of the acts of killing her sons or of knowing that they were wrong.

[20] As I have said, at the conclusion of the trial the jury convicted the appellant of two counts of second degree murder. It then went on to make a collective recommendation that the appellant be eligible for parole after 10 years.

[21] On two occasions during the course of the trial, the trial judge made statements both of which provide additional background for the fresh evidence application.

[22] The first occurred part way through the trial, when defence counsel asked for a short adjournment to permit Dr. Ben-Aron to meet again with the appellant to determine if she remained fit to stand trial. Dr. Ben-Aron did so and concluded that in his opinion the appellant still met the threshold for fitness. However, in granting the adjournment the trial judge made the following statement in the absence of the jury:

THE COURT: This may then be an appropriate time for me to record, in the absence of the jury, some observations that I have made since this trial began and which have caused me, throughout the entire course of the trial, some concern, which concern was alleviated to some substantial extent by the knowledge that both Crown and defence have been and will, I am sure, continue to act responsibly and bring matters to my attention as it becomes necessary.

The concern that I have had however, is this; and I make these observations knowing that [I. M.] was present throughout the course of a very thorough and comprehensive preliminary inquiry and is not hearing this evidence even in a court room setting for the first time, that she has been given access to substantial and complete Crown disclosure and that none of what we are hearing at this trial is new to her. I readily acknowledge that this fact makes it somewhat different than the response of others who are hearing it for the first time.

Even bearing that in mind, however, the demeanour of [I. M.] since the trial began has been, for me at least, extremely unsettling. [I. M.] has, throughout the course of the trial, sat in the prisoner's box directly across from me and has had an expression which I cannot adequately describe other than to state that - at the risk of appearing frivolous - she appears to be sitting waiting for a tennis game to begin, and not even a terribly consequential game at that.

She has had on her face a very benign expression with her mouth in the form of a half-smile throughout the entire course of the proceedings and has expressed absolutely no indication of reaction to the proceedings or the evidence in the proceedings as it has gone in, whether the evidence is of a somewhat non-controversial matter or whether it is, for example, the evidence of pathologists and coroners. There has been absolutely no change in her extremely unexpressive expression.

The only flicker of change that I have observed has been from time to time when Mr. Silver has stood to begin a cross-examination, and it has not necessarily been with respect to consequential witnesses in the sense that the evidence would be expected to be controversial, when the expression, as I can best describe it, appears to be along the lines of, 'I wonder what he's going to ask this witness.' That expression lasts for, at the most, 20 or 30 seconds and then [I. M.] returns to the expressionless expression with a slight smile that has otherwise been present.

I also note and have noted that the jury, at least from my vantage point, appears to have developed a habit of not looking at [I. M.], even during the course of some controversial evidence; perhaps, I have concluded, because they too have had an eerie sense of unease in observing this expression, or lack of expression.

I simply make those observations because, as I say, I have had the concerns since almost the outset of the trial but have elected to keep them to myself until such time as this matter has, as I suspected it might, arisen. I simply put those observations on the record now.

[23] Then in sentencing the appellant, the trial judge said this:

Two of the factors that weigh most heavily in favour of the accused are her mental illness, the extent of which may never be known, at least to the triers of fact and to me, but may eventually be known to the authorities in prison. The mental illness of I. M., which is amply demonstrated not only by the evidence of Dr. Ben-Aron which was not challenged, quite appropriately in my view, but also the evidence of numerous Crown witnesses who gave evidence of circumstances which had to have the jury from the first ten minutes of the trial, wondering when and if the issue of "not criminally responsible" would be raised.

As I indicated during the course of submissions, the accused has exercised her Charter right not to avoid criminal responsibility on the basis of mental disorder, and indeed, one may now never know whether or not her mental illness would have gotten past the hurdle in any event. However, the fact of her mental illness and the substantial nature of it, cannot be ignored, nor can the evidence of Dr. Ben-Aron which indicates quite clearly that while the mental illness is not an excuse, it is an explanation and probably the only explanation that we will ever have for this tragic event.

THE FRESH EVIDENCE

[24] The fresh evidence tendered by the appellant in this court has four components: an affidavit from each of the appellant, Dr. Ben-Aron, and defence counsel at trial and the appellant's institutional and medical records over her past six and one-half years in custody. The Crown cross-examined the appellant and Dr. Ben-Aron at length but tendered no fresh evidence of its own.

[25] The appellant's fresh evidence is that against the advice of her counsel she refused to permit him to raise the NCRMD defence and was adamant that she would not testify at trial. She says that at that time she did not believe that she suffered from a mental illness and did not want to go to a mental hospital.

[26] She discusses in some detail her tortured relationship with Mr. M., the events leading up to the killing of her sons and her highly disturbed mental state at that time. When she killed them she felt that she was trying to save them from the hit man that she believed had been sent by her husband to kill her and take her children away to be tortured and executed. She says that at the time she thought it was the right thing, but did not appreciate what she was doing.

[27] She describes how her mental health became even worse in prison until in 1999 she was diagnosed with paranoid schizophrenia and was declared incapable of consenting to treatment. She was then given anti-psychotic medication and as a result has improved significantly and wishes to raise the NCRMD defence in this court.

[28] She concludes her affidavit by saying that had she been treated with anti-psychotic medication at the time of the trial, she is confident that she would have decided differently and would have raised this defence.

[29] Dr. Ben-Aron's fresh evidence confirms that because of the appellant's instructions to counsel, he was not asked to speak to the NCRMD defence at trial. He makes clear that at that time, his view was that the appellant had such a defence and he says that now with the additional insight he has derived from the medical records about the appellant over the last six and one-half years, he holds this opinion even more strongly. His affidavit states his opinion in this categorical language:

6. It is my opinion that at the time that she killed her two sons, the Applicant was incapable of appreciating the nature and quality of her acts or of knowing that those acts were wrong. The Applicant was clearly suffering from the effects of a severe paranoid psychosis at the time of the death of her sons.

[30] Dr. Ben-Aron concludes his affidavit by saying that in his opinion the change in the appellant's instructions concerning the NCRMD defence is explained as a result of the improvement caused by success in the treatment of her mental illness.

[31] The fresh evidence from defence counsel makes clear that he was of the opinion that an NCRMD verdict was quite possible on the evidence and that he had recommended to the appellant that it be advanced but that she had adamantly refused to allow it. Moreover, she was equally adamant in refusing to testify which, in counsel's view, prevented a proper foundation from being laid for the defence in any event.

[32] Before us, the appellant argues that the fresh evidence meets the criteria set out in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759 and that we should admit it, set aside the conviction and substitute a verdict of not criminally responsible on account of mental disorder.

[33] The Crown responds by contesting that the Palmer criteria are met and saying that in any event the appellant made a tactical decision to waive the NCRMD defence at trial and should not now be permitted to resile from that decision.

ANALYSIS

[34] The well-known criteria for the admission of fresh evidence on appeal were laid out by the Supreme Court of Canada in Palmer at p. 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

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

[35] Turning first to the due diligence criterion, there is no doubt that at the time of trial Dr. Ben-Aron had formed the opinion that the appellant's mental disorder made her incapable of appreciating the nature and quality of her acts or of knowing that they were wrong. However, the appellant has explained that she firmly instructed that this evidence not be led because she was then suffering from a major but untreated mental illness. Dr. Ben-Aron confirms this. In my view, it is clear that given the appellant's medical condition at the time, the psychiatric evidence could not have been adduced at trial by due diligence.

[36] Even if this were not so, I would not find a failure to satisfy this criterion to be a bar to admitting the fresh evidence in this case. It is clear that where the fresh psychiatric evidence is compelling and the interests of justice require that it be admitted, the failure to meet the due diligence criterion should yield to permit its admission. That is particularly so where, as here, the fresh evidence raises for the first time the NCRMD defence, because that brings to the analysis the principle of fundamental justice that a person who was not criminally responsible at the time of the offence should not be convicted. See R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579.

[37] There is no doubt that the fresh evidence satisfies the criterion of relevance. The NCRMD defence speaks to a potentially decisive issue in the appellant's trial.

[38] Moreover, it is apparent that the fresh evidence is reasonably capable of belief by a trier of fact. Dr. Ben-Aron's evidence is clear and categorical. It is founded on his interviews with the appellant, information from other witnesses and her medical records. The Crown does not attack his credibility.

[39] The Crown points to several inconsistencies in the appellant's evidence. However, they relate to her present descriptions of her beliefs and delusions during that clouded period when her paranoid schizophrenia remained untreated. They do not render her evidence incapable of belief.

[40] Finally, the Crown argues that the fresh evidence does not meet the fourth criterion. The Crown says that the jury would necessarily have rejected the NCRMD defence because it found that her assertion that because of her mental illness she lacked the specific intention to commit murder did not raise a reasonable doubt.

[41] There are two answers to this. First what Palmer requires is that the fresh evidence if believed could reasonably be expected to have affected the result. As I have said, the fresh evidence is clearly capable of belief. Once believed, the potential effect of this evidence on the result is not hard to see.

[42] Second, and more important, the NCRMD defence now put forward is quite distinct from the defence advanced at trial. The jury's conclusion that despite her mental illness the appellant had the specific intention to do the acts for which she was convicted does not mean that a jury acting reasonably would reject the fresh evidence that as a result of her mental illness, she was incapable of appreciating the nature and quality of her acts or of knowing that they were wrong. The fresh evidence simply addresses a different issue; especially as that evidence concerns whether the appellant knew her acts were wrong. See R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303 at paras. 25-26.

[43] Hence I conclude that the fresh evidence put forward by the appellant satisfies the Palmer criteria and should be admitted on appeal.

[44] The Crown also argues that the appellant made a rational decision at trial to waive the NCRMD defence and should not now be permitted to resile from this decision.

[45] I disagree. The fresh evidence demonstrates that the appellant's decision at trial was a product not of tactics but of her untreated mental illness. As is made clear in Warsing, supra, the special nature of the NCRMD defence requires a more flexible approach to the principle that a defence disavowed at trial cannot normally be raised on appeal. This case represents the prototypical risk: that the mental disorder which would found an NCRMD defence could also significantly impair the judgment of an accused at trial. In Warsing Major J. put it this way at para. 59:

While an accused is seldom allowed to "hold back" a defence in anticipation of using it on appeal if convicted, Swain provides that option and confirms that the policy concerns about raising an NCRMD defence for the first time on appeal are not stringent because of the nature of the defence of NCRMD. Swain confirms that it is a principle of fundamental justice that a person who was not criminally responsible at the time of the offence should not be convicted.

[46] Finally, there remains the matter of remedy. Section 686(1)(d) of the Criminal Court gives this court the jurisdiction to set aside a conviction and find the appellant not criminally responsible on account of mental disorder. Indeed when the NCRMD defence is raised for the first time on appeal this, rather than a new trial, would appear to be the presumptive course. Major J. said this at para. 65 of Warsing:

It is my opinion that it is in the interests of justice that Mailloux be read to recognize that where the defence of NCRMD is not raised at the trial and if the court of appeal concludes that it cannot make a determination with respect to NCRMD it is within the jurisdiction of the court of appeal in avoiding a miscarriage of justice, to order a new trial. In most cases it is likely that the court of appeal would have sufficient evidence to determine the NCRMD question. It is only in cases where the facts are complex and the court concludes that further evidence is required that a new trial would be ordered. [Emphasis added.]

[47] The ultimate issue presented to this court is simple: has the appellant established the NCRMD defence on a balance of probabilities? In my view she has and a new trial is not required. The facts, including the fresh evidence, are not complex. The psychiatric evidence is strong and uncontradicted. The Crown has been unable to point to anything in the appellant's medical records since being in prison that is, in the least, inconsistent with Dr. Ben-Aron's opinion. Indeed those records appear entirely consistent with it. I do not think that any further evidence is required to dispose of this issue.

[48] Accordingly, I would allow the appeal, quash the conviction and find the appellant not criminally responsible on account of mental disorder.

[49] In accordance with s. 672.46 the appellant will remain in custody pending a disposition hearing by the Review Board pursuant to s. 672.47 of the Criminal Code.

Released: March 19, 2003 "RSA"

"S.T. Goudge J.A." "I agree R.S. Abella J.A." "I agree J.C. MacPherson J.A."