Court File and Parties

Court File No.: Walkerton 12 476 Date: 2013-03-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Rita Kathleen McBride

Before: Justice Brophy

Heard on: 8 March 2013

Ruling on NCR Application brought by the Crown released on: 27 March 2013

Counsel:

• Melody Martin, for the Crown
• Mary Hewitt, for the accused Rita Kathleen McBride

Brophy J.:

Introduction

[1] The Crown has brought an application to have the accused found not criminally responsible for her actions pursuant to section 16 of the Criminal Code.

[2] After three days of trial, on 15 November 2012 this court found Rita Kathleen McBride guilty of two counts of criminal harassment contrary to section 264(1)(2)(d) of the Criminal Code of Canada. The Crown had signalled that if there was a finding of guilt an application would be brought to have Ms. McBride found not criminally responsible.

[3] A lengthy adjournment was granted to allow the defence an opportunity to seek expert advice about the NCR issues.

[4] The application was heard on 8 March 2013.

Issue

[5] The Crown seeks to prove that Ms. McBride is suffering from a mental disorder so as to be exempt from criminal responsibility. The burden of proof is on the Crown on the balance of probabilities. There is a presumption that a person does not suffer from a mental disorder so as to be exempt from criminal responsibility until the contrary is proved.

Statutory Framework

[6] The Criminal Code of Canada provides 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 the 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.

R.S.C. 1970, c. C-34, s. 16; 1991, c. 43, s. 2.

[7] A mental disorder is defined in s. 2 of the Code as follows:

2. In this Act,

"mental disorder" means a disease of the mind;

R.S.C. 1970, c. C-34, s. 2; 1991, c. 43, ss. 1, 9 (Sched., item 1)

Evidence

[8] The Crown and defence agreed that the evidence heard in the trial proper was admissible in this application. It should be noted that Reasons for Judgment in the trial were delivered on 15 November 2012 and the facts of the underlying case are set out therein in detail. In summary Ms. McBride was found to be guilty of criminal harassment as a result of changing her name from Boyd to McBride, the same last name as the victim. This was done after many years of actions on her part that were of a harassing and concerning nature towards the victim and thus made the name change a criminal act. After her arrest the police executed a search warrant at her apartment and discovered a large number of items that disclosed the full extent of Ms. McBride's interest in the victim.

[9] Dr. Hillary Mantle testified for the Crown. She was called as an expert witness in forensic psychiatry. The defence accepted her qualifications.

[10] Dr. Mantle prepared a written report dated 1 August 2012. That report was received in evidence in the NCR application. She also testified with respect to the diagnosis set out in that report related to the mental status of Ms. McBride and the implications of that diagnosis in terms of the section 16 considerations.

[11] The defence did not call any expert evidence. The only evidence presented by the defence was Ms. McBride testifying on her own behalf.

Facts

Dr. Hillary Mantle - Report

[12] Dr. Mantle stated in her report that Ms. McBride suffers from a chronic psychotic disorder, namely Delusional Disorder, Erotomanic Type. This is a disorder described in the DSM-IV-TR. In her report Dr. Mantle details a description of the disorder in the following language at page 11:

According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), Delusional Disorder is characterized by at least 1 month of nonbizarre delusions without other active-phase symptoms of Schizophrenia.

The Erotomanic Type of Delusional Disorder is described in DSM-IV-TR (in part) as follows:

This subtype applies when the central theme of the delusion is that another person is in love with the individual. The delusion often concerns idealized romantic love and spiritual union rather than sexual attraction. The person about whom this conviction is held is usually of higher status (e.g., a famous person or a superior at work), but can be a complete stranger. Efforts to contact the object of the delusion (through telephone calls, letters, gifts, visits, and even surveillance and stalking) are common, although occasionally the person keeps the delusion secret . . . .

[13] Dr. Mantle said that this disorder is a disease of the mind.

[14] In the report she went on to describe the implications of that diagnosis with respect to the question of criminal responsibility. Dr. Mantle opines at page 11 of her report that Ms. McBride was suffering from symptoms of mental disorder within the meaning of section 16 of the Criminal Code that can preclude criminal responsibility. In her opinion Ms. McBride's behaviour at the time of the offences resulted from the severity of her chronic delusional state which precluded her ability to understand her actions were morally wrong.

[15] The collateral information available to Dr. Mantle and the information provided directly by Ms. McBride over the course of the assessment satisfied Dr. Mantle that this chronic unrelenting mental disorder was present at the time of the offences and persisted during her hospitalization.

[16] Dr. Mantle states in her report that Ms. McBride did not have any insight into her mental illness at the time of the offences and thus she had no understanding that many of her actions were being largely driven by long-held beliefs of a future with a man that had no basis in reality.

[17] Dr. Mantle notes that Ms. McBride refused to participate in a psychological assessment on July 19, 2012. This was ostensibly pursuant to legal advice. Ms. McBride also indicated that she did not wish to further participate in the psychiatric assessment.

[18] The report from Dr. Mantle is detailed, thoroughly sourced, and comprehensive.

Dr. Mantle - Testimony

[19] In her testimony Dr. Mantle indicated that since the preparation of the report she received a copy of the Reasons for Judgment in the trial released on 15 November 2012 and a transcript of Ms. McBride's videotaped statement to the police. She has reviewed both of them and neither document changes her opinion.

[20] Dr. Mantle testified on 8 March 2013. In her evidence she amplified the opinions she expressed in her written report.

[21] She noted that on many occasions Ms. McBride was not fully forthcoming and was somewhat evasive. Nevertheless Dr. Mantle was able to arrive at a diagnosis of Delusional Disorder, Erotomanic Type.

[22] Dr. Mantle described the disorder in detail in her evidence. She said that this particular condition is a chronic psychotic disorder, with chronic meaning that it is long-standing and not acute. A psychotic disorder means that an individual's subjective perception about what is going on in the world around them is not consistent with the objective reality of what is happening. With this condition an individual does not have bizarre delusions, that is to say fixed and false beliefs, but rather delusions about things that it can occur in real life. Although there could be some elements of unreal things they are not prominent. The delusions are generally related to thought content. Persons who have a delusion disorder hold beliefs that are not true in reality, but they may continue to function well in aspects of their life that are not directly related to their delusions. They could function quite well in ordinary aspects of their life and could continue a social life. Because they are generally not thought disordered their behaviour is not grossly impaired. When they are not focusing on the actual delusion there may seem to be nothing particularly wrong in their functioning. The central theme of the Erotomanic Type Delusional Disorder is that another person is in love with the individual.

[23] Dr. Mantle's opinion is that this description applies to Ms. McBride. Dr. Mantle makes the particular point that the history of Ms. McBride's actions and her journals and diaries speak louder than her words. She did many things that would indicate that she felt she would have a willing marital partner in Mr. McBride at some point. She acted on her belief by making extensive preparations for the wedding. Although Ms. McBride said to Dr. Mantle that she does not think that Mr. McBride is in love with her, her actions said otherwise. Her belief was that she was going to marry this individual and said that this was the "word of knowledge" that comes from the Lord. Ms. McBride's journals spoke about the "word of knowledge" coming from the Lord as an unspoken gesture and the man she was going to marry was somehow from God or the Lord.

[24] Dr. Mantle testified that there are undertones of religious fixation in the beliefs of Ms. McBride. Dr. Mantle does not profess to understand what religious beliefs Ms. McBride actually holds, nevertheless her beliefs around God was part of her delusional system with respect to her marriage to Mr. McBride.

[25] Dr. Mantle testified that she carefully reviewed the diagnostic criteria in the DSM-IV-TR with respect to the Delusional Disorder, Erotomanic Type and the symptomology of Ms. McBride fit that delusional disorder.

[26] Dr. Mantle testified that she considered other possible diagnoses to see if they could be present. Dr. Mantle says that she carefully reviewed the information available to her as to whether other psychiatric diagnoses could account for the actions of Ms. McBride. She also considered whether Ms. McBride did not in fact have a psychiatric diagnosis. She further considered whether there were some incidents of auditory delusion, but it was unclear whether they were delusions brought on by thought or whether they were auditory, or whether they possibly fit into her religious beliefs. She also considered whether the "word of knowledge" comment was from a hallucination. On that last point Dr. Mantle reconciled that with a long-term delusional illness.

[27] Dr. Mantle's impression was that Ms. McBride had little insight into her illness. She realized some people might see her as delusional, but she did not see herself as delusional. Dr. Mantle indicated that persons with delusional disorders do not typically have insight. This lack of insight means they will act upon their delusions. Sometimes persons are able to keep their delusions private. However oftentimes when they have lost contact with reality, in this instance about marrying Mr. McBride with no objective basis for that belief, they will do things to achieve what they believe is supposed to happen or what is going to happen.

[28] Dr. Mantle noted that at the time of the offences Ms. McBride was suffering from symptoms of this delusional erotomanic mental disorder. Dr. Mantle's view is that the symptoms preceded the incidents in question and that during the offences and while she was in the hospital, Ms. McBride was actively psychotic.

[29] Her idea as to what was real with respect to the victim had no basis in reality. Ms. McBride believed that she was in love with a man who was married and believed that they were to become married. She acted upon that delusion and did things in preparation for marriage that she believed was in some way related to something she had learned through the "word of knowledge".

[30] Dr. Mantle's opinion is that Ms. McBride has been suffering from this delusional disorder for as many as fourteen years. Throughout this period she believed that Mark McBride was the person she was going to marry, all without any objective facts that supported that belief.

[31] After careful and thoughtful consideration, Dr. Mantle is of the opinion that Ms. McBride suffers from a mental disorder that is a disease of the mind that fits the requirement for section 16 defence.

[32] Dr. Mantle then says that she is of the view that the second arm of the test in section 16, that is to say with respect to wrongfulness, is applicable. Ms. McBride knew that there were some things she was not supposed to do because of previous experience. For example, she knew she should not phone Mr. McBride or go on to his property. But because of her fixed delusions she was not able to think about the behaviour she was engaging in, that is to say the name change, and see that it was wrong. From a moral standpoint something sanctioned by the Lord could not be wrong. Her delusion clouded her ability to understand that what she was doing was morally wrong and would cause harm to the victims.

[33] Ms. McBride said that she thought she would get her name changed because it would be one last thing for her to do. When she was asked if she got in trouble because of the name change, she simply said: "my sense of timing is not good". There is no suggestion in her comments to Dr. Mantle that she understood the changing her name in the context of this case was morally wrong.

[34] Dr. Mantle was cross-examined with respect to her diagnosis. She indicated that she has seen perhaps ten cases of a delusional disorder, with only a few of them being of the erotomanic type. Dr. Mantle testified that this disorder was quite rare.

[35] Dr. Mantle reiterated that although Ms. McBride did not say that she was loved by Mr. McBride her actions spoke volumes about what she truly believed.

[36] In cross Dr. Mantle said that she considered other possible mental illnesses including an obsessive-compulsive disorder as a possibility. She also was aware of some commentary about a condition called "obsessive love" or "obsessional love". She advised that this is typically referred to in studies of stalking cases and is commented upon by Reid Malloy and referred to on the RCMP website.

[37] Dr. Mantle did not use those concepts for a diagnosis under the DSM. They can explain some of Ms. McBride's behaviour but not all. This is particularly so because Ms. McBride's thoughts around religion or God is in keeping with her delusions. Dr. Mantle testified that Ms. McBride saw that her marriage to Mr. McBride to be God's plan for her.

[38] Dr. Mantle conceded that with reference to obsessive-compulsive disorders it would not be surprising for someone to gather up information, in this case, for example, information related to weddings. But here all of the actions that she took and what she said to various people gave support to the delusional disorder. This was not just collecting things, but rather all of her actions said that she was going to marry this man.

[39] Dr. Mantle agrees that internal thoughts are not necessarily hallucinations. This would particularly be the case if they were coming from an internal source. But in this instance the ideas were coming from outside, that is to say from the "word of knowledge".

[40] In cross-examination Dr. Mantle confirmed that Ms. McBride knew that she was changing her name, but in Dr. Mantle's opinion Ms. McBride did not understand that what she was doing by changing her name was wrong. She could not work through the consequences of what she was doing and how it would impact on other people and could be seen as threatening. She could indeed understand that some things were wrong from a legal perspective, for example by going to the victims' property or calling them on the telephone, and she also knew that the victim would react to the name change and that if she asked him about it he probably would have said not to do it.

[41] Ms. McBride told Dr. Mantle that she wanted the name change out of love for Mr. McBride and also said that it was to be about closure. Dr. Mantle does not believe that Ms. McBride understood that the name change was wrong. Ms. McBride did not see her behaviours as threatening and did not understand that the average person would think that the name change was threatening.

[42] In this context the name change was not something morally benign. Ms. McBride did not understand the moral wrongfulness of her action. Ms. McBride did not weigh the pros and cons of the name change, it was just one more thing that she did in a list of many things she was doing to prepare for marrying Mr. McBride. It is noteworthy that she said at another point that she was going to marry Mr. McBride and did not want to go through the name change later.

[43] It is also noteworthy that Ms. McBride did have the capacity to understand right from wrong in a moral sense in other aspects or areas of her life. However it was her behaviours with respect to Mr. McBride that are in issue.

[44] Lastly in cross examination Dr. Mantle reiterated that Ms. McBride's actions indicate that she had beliefs that were incorrect. If she just hoped that Mr. McBride would love her in the future that would be acceptable. However she had acted on her beliefs with the purchase of a wedding dress and the actual planning of the wedding. This level of planning is delusional. Hope and belief are two very different things.

[45] Dr. Mantle was a good witness. She was clear in her analysis and fair and balanced in her evidence. She was not shaken in cross examination.

Rita McBride

[46] Ms. McBride testified. She is 44 years old. She is from the Rochester, New York area and came to Canada at age 21 when she married Dan Boyd. She was raised as either a Lutheran or Catholic but identifies herself today as Catholic. She says she has no relationship with her birth family in New York State.

[47] She has lived in the Ripley area for approximately 22 years. She was married to Mr. Boyd for 15 years. She has 4 children ranging in age from 15 to 20 years of age. She separated from Dan Boyd in 2004 and they were divorced in and around 2006 or 2007. Before her arrest in the spring of 2012 the children were living with their father, but Ms. McBride says that she was involved in the children's lives by driving them to different places from time to time.

[48] She does not think she has any mental illnesses, save and except that while she was married to Dan Boyd she did suffer from some depression. She describes herself as generally very happy. She also thinks of herself as quiet and somewhat shy. She tries to be cordial to people and indeed at the Central North Correctional Facility she has been asked to serve meals and communicate with guards and other inmates. She said she has had no difficulties while she has been in custody.

[49] She testified that she has not had a relationship with Mark McBride. She says that she has no feelings for him at present and does not wish him or his wife any harm. Her evidence in chief is that she tried to avoid contact with Mr. McBride and that she has had no contact with him since 2007. In cross-examination she conceded that she did have some contact with him in Kincardine, in Ripley on the side of the road near his house, and that she had waved to him and his family as she drove by.

[50] She says that she does not believe that Mr. McBride has ever been in love with her. She does say however that she has been in love with him. She says that it has been very hard not to contact him over the last seven years. She says it would be wrong to contact him because he is married and she respects his family and those around him.

[51] Ms. McBride indicates that she had been looking for a new residence in Goderich to separate herself from the village of Ripley where she and the victims' families both lived.

[52] As for her wedding plans, she says that she never put any money down and never actually picked up anything. The wedding dress she had bought was hung in a closet for 7 years. This is exactly the same pattern she followed when she married Dan Boyd in that she had bought that wedding dress before she could even meet him. Ms. McBride says that she has always had an interest in weddings.

[53] With respect to her journals she says they were simply to record her dreams. She does not have the gift of interpretation of dreams and uses biblical books to help interpret them.

[54] Ms. McBride says she's never heard God speaking directly to her. If she has religious issues she takes them to her pastor or the Chaplain of her church.

[55] She was asked in chief why she changed her name to McBride from Boyd. Her answer was that she picked McBride as her new name because she felt it would help close the door with Mark. She was asked if she could explain what that meant and she was unable to do. She said it did not have anything to do with marrying Mark McBride. She said that she always had a hope that she would marry him but she does not have that same hope now.

[56] She said that she understood that she had 30 days after receiving the written confirmation from the government that her name had been officially changed to notify employers and to change the name on her driver's license or she would be committing some form of fraud. She felt she was legally obliged to tell her employer. She says she did not know that the bookkeeper at work was a friend of the McBrides.

[57] When she thought about the name change she did think about how Mark McBride would react and thought that he would be slightly upset. She says she weighed the pros and cons of the name change and decided to go ahead. She did not tell her family she was changing her name thinking that they would figure it out on their own.

[58] With respect to the name change she had not seen Mr. McBride for several years and did not know what he was thinking. She was not afraid of him saying that she should not change her name; if he had said not to she would not have done it. She does however understand why he is upset with the name change. It was not her intention to cause him any harm or to harass him. She says that it is wrong to cause anyone harm.

[59] In cross-examination Ms. McBride said she was very happy and logical thinking and does not think she suffers from any delusions.

[60] In cross-examination she said that her journals were a mixture of dreams and reality. She had no good explanation as to why she had all of the wedding paraphernalia or why she was considering wedding venues and possible dates for a wedding. She did say that she had the wedding dress altered some time before her arrest. She had the money to have the alterations done and she chose to do it.

[61] She concedes she did not have to change her name and that it was a personal choice. She said that she did not change her name to make herself happy because she was already content. For some reason she thought it was a positive thing to change her name. She thought her kids would find out somehow and she figured that Mark McBride would find out somehow as well. She said that the name change was in part preparation for the future. The future could mean the remainder of your single life. She then said that she took the McBride name to tell Mark McBride where she stood. She meant by that the she had moved on and that she did not anticipate a marriage with Mark, although the hope was still there. She also said she took the McBride name out of love and not in anticipation of any marriage.

[62] She knows that it is not legally wrong to change your name. When she was asked whether it was morally wrong, her response was that it was a personal choice. She does not think that what she was did was morally wrong. She said that she would never do any harm to the McBride family as she is not a violent person. She conceded that harm can also be emotional and accepts that she caused emotional harm and feels terrible about it.

[63] In her evidence Ms. McBride minimized her actions and was unable to fully explain why she changed her name, nor why she continued with her belief that there was a special relationship between her and Mark McBride. She was contradictory with respect to why she had changed her name – for example saying that it was simply a personal choice, that it was for closure, or that it was to tell "Mark" where she stood.

[64] After listening to her evidence I am of the view that it is not reliable. She is confused as to why she does things and offers different explanations at different times.

Law

[66] Hy Bloom and Justice Richard D. Schneider at page 10 in Mental Disorder and the Law: A Primer for Legal and Mental Health Professionals, Irwin Law, 2006, comment that delusional disorders include an Erotomanic Type wherein the person believes that a person (usually a person of higher social station) is in love with him or her. They observe that:

While a delusion is the central feature, other psychotic phenomena such as auditory hallucinations may be present, but are not likely to be prominent. Behaviour is usually not bizarre and thought processes are generally intact. Often, delusional patients do not appear to be mentally ill. Occupational and social functioning may appear entirely unaffected until something in the environment – a stressor, or other event – brings the patient's delusions to the fore, or until the subject matter of the delusion comes up in discussion (although patients with delusional disorder will often conceal their delusions, and more generally, what they are thinking and feeling).

[67] Bloom and Schneider go on to state at page 121 that the condition that qualifies an accused for an NCR defence must be a recognized condition and for the most part one that is capable of compromising the accused's appreciation of the nature and quality of their acts or knowing its wrongfulness. They comment that it is not so much the diagnosis that is important, but the condition's effect on the brain functions that mediate the various capacities touched on in section 16.

[68] At page 130 they confirm that a mental disorder means a disease of the mind and that embraces any illness, disorder or abnormal condition that impairs the human mind and its functioning. See R. v. Cooper, [1980] 1 S.C.R. 1149. They conclude that the phrase from a criminal law perspective is very broad. See R. v. Rouse, [1996] O.J. 4688 (Gen. Div.) and R. v. Malcolm, [1989] M.J. No. 375 (C.A.).

[69] It is important to note that Bloom and Schneider also state on page 130 that wrong means "morally wrong" and not simply "legally wrong". See R. v. Chaulk, [1990] 3 S.C.R. 1303. Further the individual must have the ability to apply this knowledge at the time of the criminal act. See R. v. Oommen, [1994] 2 S.C.R. 507.

[70] The principles related to an NCRMD decision are also usefully summarized by Rosenberg J.A. in the case of R. v. Szostak, [2012] O.J. No. 3330 as follows:

56 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, [1994] 2 S.C.R. 507. 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. Further, the accused's delusional belief need not amount to an established defence such as self-defence. As McLachlin J. wrote at p. 520 of Oommen:

There is no suggestion in the authorities that the accused must establish that his delusion permits him to raise a specific defence, such as self-defence. 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.

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.

57 In this case, the appellant 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.

58 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] 3 S.C.R. 1303, at p. 1354-56:

Viewed from this perspective, it is plain to me that the term "wrong" as used in s. 16(2) 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 in the circumstances 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 that 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.

[71] In addition Justice Rosenberg offers this cautionary note:

64 I have no difficulty in concluding that in the general sense the appellant was prejudiced by the course of the proceedings. Had the appellant been prosecuted and convicted for these offences without reference to his mental state, he would, at worst have received a penitentiary term of two to three years, less credit for pre-sentence custody. Having been found NCRMD, the appellant was subject to indefinite detention until he was no longer a significant threat to the safety of the public: see s. 672.54 of the Criminal Code. The appellant has now been detained in a hospital for five years. The consequences of a finding of NCRMD can be so profound that a high degree of procedural fairness and scrupulous attention to the rights of the accused are required [emphasis added].

Analysis

Mental Disorder

[72] In understanding this case it is important to recognize the long history of Ms. McBride's infatuation with Mark McBride. The context is everything.

[73] Do the behaviours of Ms. McBride disclose a mental disorder that is a disease of the mind? The un-contradicted evidence of Dr. Mantle is that Ms. McBride suffers from a Delusional Disorder, Erotomanic Type. In the opinion of Dr. Mantle this is a disease of the mind.

[74] The defence suggests the case of R. v. Guidolin, 2011 ONCA 264, [2011] O.J. 1649 (C.A.), as an example of where a psychiatric diagnosis was suspect. However in that case the report from the psychiatrist was inconclusive at best – using language like:

I am rather lukewarmly persuaded that this man qualifies, at least marginally, for a non-criminal responsibility finding. This is not because he has no capacity to recognize the wrongfulness of his actions or specifically the most recent act of robbery, indeed he can, but he is substantially morally indifferent . . . .

In that case the Court of Appeal simply said that there was no basis for an NCR finding. It was not that the diagnosis was suspect, but rather that it did not meet the standard set out in section 16.

[75] Another case that I have been referred to by the defence is R. v. Evans, [2012] O.J. No. 2688. This is a case where there was an NCR finding on the basis that there was a diagnosis of schizophrenia. However as events played out over time the post finding treatment team for Mr. Evans ruled out that diagnosis. On appeal it was noted that the attending psychiatrist in the first instance had additionally testified that the "best fit" for the appellant at the time of the offence was a substance induced psychosis. The Court of Appeal ruled that this on its own, in the absence of the schizophrenia diagnosis, would not support an NCR finding. The Evans case speaks to developing evidence which changed the underlying basis for the NCR finding. It was a new evidence case and is not comparable to where we are with the instant case.

[76] The defence has put other suggestions to Dr. Mantle, specifically an Obsessive-Compulsive Disorder or the "obsessive Love" or "obsessional Love" theory, without the benefit of expert evidence, and Dr. Mantle has responded to those suggestions and rejected them. Dr. Mantle's evidence in chief and cross examination revealed that she gave consideration to alternative diagnoses and conditions and none applied except the Delusional Disorder, Erotomanic Type.

[77] It is also clear that Dr. Mantle thought carefully about her analysis before forming this opinion. I am satisfied that the opinion of Dr. Mantle that Ms. McBride suffers from a Delusional Disorder, Erotomanic Type is something that the court can rely upon. I accept her evidence in that regard.

Wrongfulness

[78] The expert then opines that this disease of the mind extends to not making her morally responsible in that she did not appreciate the wrongfulness of her actions. This is particularly so because in assessing all of the history Dr. Mantle thinks that Ms. McBride's words are suspect. Her actions belie her qualified statements.

[79] I accept this analysis in light of my review of the evidence and hearing Ms. McBride testify. Ms. McBride was unable to offer any consistent explanation as to why she changed her name. It is also noted that Ms. McBride was not fully candid or forthcoming with Dr. Mantle and would not participate in a psychological assessment. Further she was contradicted in her evidence with respect to her contacts with Mr. McBride.

[80] The crime she has been convicted of is criminal harassment. The specific complaint was with respect to her changing her last name to that of the person with whom she has been focusing on for many years. Looked at in the context of the past 14 years the court found that this action on her part was criminal harassment. She knew it would come to the attention of the victims, but she did not think it would be harmful. She says that she does not harm people. However she failed to understand that what she did caused emotional harm to the victims. Her actions were wrong – but Ms. McBride had no insight into why it was wrong.

[81] The defence argues that the complexity of the law related to criminal harassment was what caused Ms. McBride to commit the crime. She was, in the defence submission, willfully blind or indifferent to the damage created by her actions.

[82] However the complexity of the law is not what is in issue. The question is did she know that what she was doing was wrong in terms of what an ordinary member of society would appreciate was wrong, whether it was legally permissible or not. Surely an ordinary citizen would understand that with the lengthy history that was in place, with the previous conviction for criminal harassment and with the extended time on probation that had been imposed on Ms. McBride that there was something wrong about continuing to pursue this man against all logic and common sense. Her delusion with respect to his relationship with her caused her to not understand what she was doing was wrong. She did not have that insight. She thought it was acceptable because it was legal, in her mind, and the consequences simply did not occur to her. It was not being willfully blind, which implies knowledge but not caring, but rather she was simply unaware of the implications of her actions. She did not know it was wrong.

Conclusion

[83] The Crown has established that Ms. McBride suffered from a mental disorder that was a disease of the mind. In my view the mental disorder that she suffered from caused her to not know that it was wrong to take the actions she took.

[84] The Crown has satisfied me on the balance of probabilities that the presumption in section 16(2) that Ms. McBride did not suffer from a mental disorder so as to be exempt from criminal responsibility has been displaced.

[85] In sum the Crown has established that Ms. McBride is not criminally responsible for the crime of criminal harassment for which she was found guilty on 15 November 2012 and an NCR verdict will be recorded.

[86] Counsel may speak to the proper disposition.

Released: 27 March 2013

Signed: "Justice Brophy"