COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Palmer, 2015 ONCA 329

DATE: 20150512

DOCKET: C53234

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne Palmer

Appellant

Delmar Doucette, for the appellant

John Patton, for the respondent

Heard: November 10, 2014

On appeal from the convictions entered by Justice Silja S. Seppi of the Superior Court of Justice on November 3, 2010, sitting with a jury.

By the Court:

[1] The appellant appeals from his November 3, 2010 convictions on two counts of second degree murder. At trial, although he testified that he had no memory of the events, the appellant did not contest that on April 30, 2008 he stabbed to death two strangers at the Red Maple Plaza in Brampton. He testified that he had no intention that day of killing anyone but himself.

[2] At the time of the homicides, the appellant was 28 years old, lived with his mother and had been unemployed for three years. According to him, on the day in question, he left his house with two knives with the intention of committing suicide. He took a series of buses via downtown Brampton to the Bramalea City Centre, on to the Westwood Mall in Mississauga, then to Toronto and then back to the Westwood Mall. He returned to Brampton and got off the bus near the Red Maple Plaza. He claims that before leaving his home he filled a water bottle with a mixture of vodka and overproof rum and drank from it while on the bus. Just before arriving at the plaza he took some Tylenol 3 tablets containing codeine.

[3] At the plaza, the appellant was observed approaching the 52-year old female deceased, who was unknown to him, as she returned to the parking lot from a dental clinic she had been visiting. He took possession of her keys; she resisted and he stabbed her four times in the back. He approached her, bent over her body and looked at her and then turned the knife on himself. The female deceased’s 53-year old husband, who was also unknown to the appellant, came to her aid and had an altercation with the appellant during which he was stabbed seven times. Witnesses then saw the appellant stab himself in the throat several times. After the police arrived, the appellant slit his own throat causing a deep cut. As he attempted to slit his throat a second time, a police officer tasered him thereby disabling him.

[4] A police officer at the scene heard the appellant say, “I’m dying. I’m dying.” An attending paramedic testified that the appellant made the following statements more than once: “Am I going to die today” and “I am not going to die today.”

[5] In March 2009, the defence retained Dr. Gojer, a forensic psychiatrist. After meeting with the appellant, Dr. Gojer recommended that a further assessment be done to determine whether the appellant was schizophrenic. The appellant was sent to Penetanguishene Mental Health Centre (PMHC), where Dr. Pallandi, the consulting forensic psychiatrist assigned to his care, assessed him three times. Dr. Pallandi reported that the appellant engaged in problematic behaviours at PMHC, including muteness, atrocious personal hygiene and the deliberate collecting and spreading of urine and faeces. A treatment order was sought and obtained. Although initially found to be unfit to stand trial and repeatedly described as an enigma, the appellant was eventually found to be fit. Dr. Pallandi, in his discharge summary dated July 28, 2010, stated his final diagnosis as: Antisocial Personality Disorder.

[6] Just prior to trial, Dr. Gojer assessed the appellant for a second time to determine whether he qualified for a defence of not criminally responsible. While the appellant displayed negative symptoms (flat affect, monotony of speech, and apparent disconnection from what was happening), when interviewed he did not describe positive symptoms, such as hallucinations. In the absence of positive symptoms, Dr. Gojer determined that the appellant was suffering from a psychotic illness, most likely schizophrenia, but that there was nothing in his history that would lead him to conclude that the appellant had a s. 16(1) defence available to him.

[7] At trial, the Crown advanced a theory of robbery-homicide. Dr. Gojer gave evidence for the defence aimed at raising a doubt concerning whether the appellant had the intention to commit murder.

[8] Dr. Gojer testified that he could only provide a differential diagnosis of an undefined psychotic illness. He testified that he spoke to the appellant’s mother prior to the trial. She told him that for about two months prior to the homicides the appellant had become more withdrawn, was isolating himself in his room, appeared to be talking to himself and laughing to himself, would stay up all night and would not make good eye contact. She described this as a change in his behaviour.

[9] Although he considered catatonic schizophrenia, Dr. Gojer testified that his ultimate opinion remained uncertain and he could not opine on a balance of probabilities that the appellant’s major mental illness had been so severe and his thought processes so disorganized as to displace the presumption of sanity.

[10] The appellant raises several issues on appeal. As his primary ground, he seeks to show that he was not criminally responsible at the time of the killings by introducing fresh evidence on appeal. For the reasons that follow, we consider this ground dispositive of the issues on appeal.

[11] On September 12, 2012 appellate counsel visited the appellant at Kingston Penitentiary to prepare for the appeal and formed the lay opinion that the appellant was suffering from mental disorder. On November 28, 2012 Dr. Bradford, a forensic psychiatrist, saw the appellant at the Regional Treatment Centre. He reviewed the appellant’s penitentiary records and concluded that he was “seriously mentally ill suffering from Schizophrenia, Catatonic type.” Rosenberg J.A. granted a consent order that the appellant be transferred to the forensic treatment unit of the Brockville Mental Health Centre for a sixty day post-conviction assessment by Dr. Bradford.

[12] Dr. Bradford provided an opinion letter dated June 14, 2013 in which he concluded that the appellant currently suffered from “Schizophrenia, Catatonic Type, Continuous, with prominent negative symptoms” and further that he was severely mentally ill prior to the index offences and at the time of the index offences. His opinion concluded that “Mr. Palmer would have come within the terms of Section 16 of the Criminal Code of Canada at the material time of the index offences.”

[13] Drs. Gojer and Pallandi were then asked if Dr. Bradford’s report affected their previous opinions. Dr. Gojer responded that he was now confident that the diagnosis of schizophrenia is not in dispute, and opined that the appellant’s illness is “Schizophrenia with prominent features of Catatonia”. He concluded that, on the balance of probabilities, the appellant did meet the test for s. 16 at the time of the index offences. Dr. Pallandi was now similarly persuaded that a diagnosis of schizophrenia is appropriately applied to the appellant and that, on the balance of probabilities, the presumption of criminal responsibility in this case at the time of the offences could reasonably be displaced.

[14] With respect to the second branch of the s. 16 test (whether the major mental illness rendered the appellant incapable of appreciating the nature and quality of his acts or of knowing that they were wrong at the time of the offences), the three doctors said the following in their post-conviction reports:

Dr. Bradford:

“[I]n my opinion, an unprovoked attack against a complete stranger/strangers in a public place in broad daylight followed by a bizarre suicide attempt is strongly indicative of a severe mental illness at the time of the index offences. This is further indication that Mr. Palmer would not have been aware that what he was doing was wrong or even aware of the physical nature of his actions if he was in a significantly confused state. In my opinion Mr. Palmer would have come within the terms of Section 16 of the Criminal Code of Canada at the material time of the index offence.”

Dr. Gojer:

“Given the unpredictability of his actions secondary to his mental illness, the severe nature of his illness, his disorganized thinking, it would be more likely than not that he would not have been able to weigh the pros and cons of his actions, exercise rational choice or know that what he was doing was morally wrong. … It is therefore my opinion that Mr. Palmer does meet, on the balance of probabilities, the test for Section 16.1 of the Criminal Code of Canada.”

Dr. Pallandi:

“Concerning the second question, that being his criminal responsibility, notwithstanding the concerns I have identified above, with the additional information that has been made available to me, I am persuaded that on the balance of probabilities, that the presumption of criminal responsibility in this case can reasonably be displaced, from a clinical perspective, and that a defence of Not Criminally Responsible should reasonably be available to Mr. Palmer.”

[15] We reject the Crown’s submission that the fresh evidence does not meet the R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 criteria. The evidence was not available prior to trial; it bears on the appellant’s not criminally responsible defence; it is credible, cogent and reliable evidence and it could reasonably have affected the outcome of the trial. We therefore admit the fresh evidence.

[16] Having admitted the fresh evidence, the only issue before us is the remedy. In our view, rather than order a new trial, this is a proper case for this court to enter a verdict of not criminally responsible.

[17] In R. v. I.E.M. (2003), 2003 CanLII 57382 (ON CA), 173 C.C.C. (3d) 515 (Ont. C.A.), at paras 46-47, this court explained, quoting from R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, that when a not criminally responsible defence is raised for the first time on appeal the presumptive remedy is a finding of not criminally responsible unless the facts are complex and the court concludes that further evidence is required at a new trial:

Finally, there remains the matter of remedy. Section 686(1)(d) of the Criminal Code 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.]

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.

[18] In this case, although the circumstances of the offence are horrific, the evidentiary record is complete. On the oral hearing, the Crown did not give any indication that it would seek a further psychiatric opinion, despite the court asking on several occasions why the jury would not accept the opinions of the three psychiatrists.

[19] Moreover, the evidence is strong, uncontradicted and consistent. All three psychiatrists provided reports to confirm their opinions and all were extensively cross-examined by the Crown for the purpose of the fresh evidence application. The fresh evidence was detailed in terms of the investigations and analysis by the three doctors. The three psychiatrists are unanimous in their opinions. Further, the appellant’s mother repeated her observations originally given to Dr. Gojer on the appellant’s pre-offence change in behaviour to: (1) a Brockville Mental Health Centre social worker while the appellant was there for his post-conviction assessment; and (2) in an affidavit, which was filed as part of the fresh evidence.

[20] We have reviewed the record. We are satisfied on the basis of our review that the appellant has proved the defence of not criminally responsible on a balance of probabilities.

[21] The appeal is allowed, the convictions are set aside and verdicts of not criminally responsible on account of mental disorder are substituted. In accordance with s. 672.46 of the Criminal Code the appellant will remain in custody pending a disposition hearing by the Review Board pursuant to s. 672.47. In accordance with s. 672.45(1.1), the appellate record, including the fresh evidence application, will be sent to the Review Board without delay.

Released:

“MAY 12 2015” “K. Feldman J.A.”

“KF” “Janet Simmons J.A.”

“S.E. Pepall J.A.”