R v Li Chai

Court Information

Court: Ontario Court of Justice

Citation: 2019 ONCJ 208

Date: April 8, 2019

Court File No.: Central East - Newmarket - 17-01191

Before: Justice John McInnes

Counsel:

• L. McCallum, for the Crown
• J. Neuberger, for the defendant Li Chai

Hearing Dates

The trial proceeded in two phases:

Phase One: November 14, 15, 16, 17, 21, 22, 27, 29, 30, and December 1, 2017

Phase Two: June 18, 19, 20, 25, 26, September 6, 7, October 16, 17, and November 15, 16, 2018

Reasons for Judgment Released: April 8, 2019

Charges

The accused, Li Chai, admitted committing the actus reus of the following offences but raised a defence of not criminally responsible by reason of mental disorder:

• Count 1: Forcible Confinement of Xianghong Wu [s. 279(2)]
• Count 2: Kidnapping with a firearm of Dongbo Wei [s. 279(1.1)(a.1)]
• Count 3: Robbery with a firearm of Xianghong Wu [s. 344(1)(a.1)]
• Count 4: Robbery with a firearm of Dongbo Wei [s. 344(1)(a.1)]
• Count 5: Extortion with a firearm [s. 346(1.1)(a.1)]
• Count 6: Break and Enter into 14 Library Lane [s. 348(1)(d)]

Verdict

GUILTY on all counts.

Facts

The Events of January 17, 2017

On the afternoon of Tuesday, January 17, 2017, Mr. Chai broke into the Markham home of Xianghong ("Hetty") Wu and Dongbo ("Bennett") Wei at 14 Library Lane. He forcibly confined and robbed both of them at gunpoint and then kidnapped Bennett Wei in order to extort payment of a large sum of money from the couple. The defendant also took numerous personal items, including passports, bank and credit cards, bed comforter, computers, and identification from the home. He held Mr. Wei hostage for two days, the first night in a Burlington motel room and the remaining time at or in transit to his own home at 118 Gemini Crescent in Richmond Hill.

The Break-in and Initial Confinement

Midafternoon on January 17, Bennett Wei drove from 14 Library Lane to a local indoor golf facility and then to the YMCA, leaving his wife Hetty Wu at home. An hour or so after he left, Ms Wu was relaxing on a couch in the family room when she heard someone enter the home through the front door. Thinking it was her husband returning early, she looked up and found Mr. Chai coming into the family room wearing a mask and pointing a handgun at her. Speaking in Mandarin, he told her he was there to rob her and directed her to get on the floor face down with her hands on her back. She complied and Mr. Chai then handcuffed her arms behind her back, ordered her to stand up, and demanded to know where the passports were kept.

As Ms Wu led the defendant to the study on the second floor, he positioned himself behind her with the evident purpose of preventing her from looking at him. When they got to the study she showed him the locked drawer where the passports were kept and the key to open it. The defendant then led her down to the basement, stopping on the way to pick up a blue gym bag he had stowed outside the front door, and using a rope he retrieved from his bag, he tied her to a chair in the basement washroom, facing the wall with her back to the washroom door. Mr. Chai then gagged her by stuffing a towel in her mouth and covered her head with a blanket. He told her she would not get hurt if she did what he told her and then he went back upstairs.

Ms Wu could hear Mr. Chai walking around upstairs and every few minutes he came back down to check on her. One of those times he demanded to know why he could only find her passport and not her husband's; she replied that the passports were all in the same drawer and he went back upstairs. Another time she heard a cell phone ringing upstairs and moments later the defendant came down and asked "who is Bennett?" She replied Bennett was her husband. The defendant asked her where her husband was and she replied that he had gone to the YMCA. Mr. Chai then asked "how come he is calling you? Are you guys going out for dinner together?" Ms Wu replied that they had been planning to go supermarket shopping. From then on, it seemed to her that rather than just taking what he wanted and leaving, Mr. Chai was waiting for her husband to get home.

Mr. Wei's Arrival and Interrogation

At about 6:00 p.m. Mr. Wei entered the house through a door leading from the garage and immediately heard someone behind him shout "don't move". He turned around to see the masked Mr. Chai pointing a gun at him, telling him not to move and to get down on the floor face down. From the basement, Ms Wu heard her husband call out to her as he walked into the door and then shout "who are you? What are you doing here?" and then heard Mr. Chai tell her husband not to move. Mr. Wei complied and Mr. Chai handcuffed him, took his phone and speaking in "very accurate Mandarin" ordered him to the basement. Mr. Wei saw his wife tied to the chair as he came down to the basement and called out to her; from the sound of her response he could tell she had been gagged.

The defendant then bound Mr. Wei to a chair near the bottom of the stairs, gagged him and draped a duvet blanket over his head and body. All Mr. Wei could do was "sit there and listen", he testified, to the sounds of the defendant walking around upstairs and occasionally returning to the basement briefly. Ms Wu also heard the defendant walking around upstairs, apparently continuing to look for things. At one point she heard her husband ask "is it money what you're after? If money is what you're after, I can go to the bank and get some for you" but Mr. Chai did not respond and instead continued to "look for things".

Mr. Wei tried to shake off the duvet by rotating his head and finally succeeded just as the defendant came down the stairs into the basement with his face unmasked and now wearing gloves. When Mr. Chai noticed Mr. Wei had managed to get the duvet off he became furious and shouted "how dare you look at my face" and then used his gun to beat Mr. Wei in the head three or four times with great force. Ms Wu testified that from the bathroom she could not hear the blows being struck but could hear her husband "crying out badly".

Mr. Chai left to put his mask back on and when he returned he was holding three tablets of medicine in his gloved hand which he told Mr. Wei to swallow. When Mr. Wei said he would not take them, Mr. Chai forced the tablets into his mouth and made him swallow them with water, telling him they were painkillers, and then checked his mouth afterwards to make sure they had been ingested. Mr. Wei did not know what the medicine was (investigators later discovered a package of Gravol tablets with three tablets missing in the vehicle used in the kidnapping).

At that time, Mr. Wei commented that his scalp was bleeding profusely to which the defendant replied "it's fine, it's fine" before finding and placing a toque on Mr. Wei's head to cover the wounds.

The Interrogation and Ransom Demand

Mr. Chai then began interrogating Mr. Wei, asking him how much money there was in the house and whether he was a corrupt official. The latter question was asked using terminology that, according to Mr. Wei, connoted a corrupt official of either the Chinese government or a state-run business. Mr. Wei replied he could not be such an official as he had not worked at a state-run business for twenty years. Mr. Chai asked how he was employed then, and Mr. Wei replied he ran a small business. The defendant began scrolling through messages and contacts on the WeChat app on Mr. Wei's phone, pausing to ask specific questions about contacts associated with Mr. Wei's business in China including someone named Shiying Li who, Mr. Wei explained to the defendant, was his business accountant and located in China. Mr. Chai suggested he contact the accountant to get money, to which Mr. Wei replied "that money belongs to the company, how can I just take it out?" Ms Wu testified that during this exchange the fact that she and her husband had flights to China booked to depart later that week came up and that Mr. Chai commented in response "see, the timing of my boss was quite good".

A few minutes later, Mr. Chai returned and demanded to be given $2.5 million; Mr. Wei protested he did not have access to that amount of money, the defendant ran back and forth upstairs bringing various HSBC, TD and Capital One bank cards to Mr. Wei and demanding to know the access codes. Mr. Wei told Mr. Chai you cannot get money out of the HSBC card because it was a debit card which the defendant disputed. The defendant made further trips to and from the basement before returning to announce that he had spoken to his "boss" and now had instructions to accept $1.5 million, a sum that by this point Mr. Wei understood as a ransom that would be required for his return.

When Mr. Wei continued to protest that he did not have access to that much money, the defendant suggested mortgaging the house and told him to discuss with his wife how the money should be raised before they left. Mr. Wei told Ms Wu to consult as many friends and colleagues as possible about the money which he intended as a hint. Ms Wu said there was no way to raise so much money to which Mr. Wei replied "then try to think of ways". Mr. Chai interrupted, telling them "time is limited. Finish your discussion. I'm taking away the husband."

Mr. Chai then told Ms Wu that he would contact her in two days to tell her where to bring the money which should be made ready in the meantime and asked if Mr. Wei needed to sign some cheques before they left. Ms Wu replied it was unnecessary as she also had signing authority and asked Mr. Chai where he was taking her husband to which he replied "a very far away place, somewhere in Québec". Ms Wu replied that he did not have enough clothing. The defendant then asked where the clothes were kept and went back upstairs to get them.

When he returned, he cut Mr. Wei free from the chair but left his legs bound and his arms handcuffed. After refusing Ms Wu's request to be allowed to see her husband at least once before he was taken away, Mr. Chai directed Mr. Wei to jump or hop up the stairs, out the side door, through the backyard and a second door into the garage where a car was now waiting. According to Mr. Wei, he was made to lie in the backseat and his eyes were covered with the brim of his hat. He heard the garage door open and felt the motion of the car driving away.

Ms Wu testified that at some point before he left with her husband, Mr. Chai returned to the basement and partially unbound her so she could free herself but not immediately. Ms Wu asked the defendant how she could raise that much money from the same bank and he told her to withdraw from different locations. Before leaving, Mr. Chai warned Ms Wu someone would be watching their house, she should not come upstairs until he had been gone for half an hour and that if she called police she would never see her husband again.

The Kidnapping

The First Stop at TD Bank

After leaving 14 Library Lane with Bennett Wei, Mr. Chai drove to different locations in the Markham area, including the Pacific Mall and the TD Bank at 9600 McCowan Rd. Mr. Wei testified "there was a brief time that perhaps I was too tired, or perhaps I lost too much blood. I don't know I passed out, or I fell asleep. When I opened my eyes again, I know that he was still driving, but then I no longer know where I was". When Mr. Wei awoke, they were still driving. He recalled the defendant telling him "remember, Toronto is not where you live" and a while later saying "your son has reached home".

The first stop was at what Mr. Wei believed to be the TD bank: by that point his hat had shifted a little such that he could see the sign for a familiar restaurant called either Liyuan or Siyuan that Mr. Wei knew to be located next to the TD Bank. The defendant did not explain why he was stopping and simply told Mr. Wei "stay put. Do not play any tricks."

Video surveillance at the TD Bank captured Li Chai arriving at the TD Bank at 8:31 pm on January 17, 2017. He was alone arriving and while at the bank. He entered the bank at 8:40 pm and went to the ATM. He left the bank, did a transaction at the exterior drive thru ATM and re-entered the bank. Li Chai used the ATM machine at the TD Bank at 8:50 pm and withdrew $500.00 from Bennett Wei's account using the TD Canada Trust debit card and at 8:52 pm he withdrew another $500.00 using Bennett Wei's Capital One card. He left the parking lot of the bank before 9 pm. Bennett Wei remained restrained in the backseat of the car.

The Second Stop at Pacific Mall

The next stop after they left the TD Bank was the Pacific Mall in Markham. Mr. Wei was familiar with Pacific Mall and saw the sign for it two or three times as they were driving around, apparently in circles. Ultimately, he surmised they had stopped in the underground parking lot at Pacific Mall. Once they were stopped, the defendant got out of the vehicle, walked some distance away and then spoke to someone. Mr. Wei testified he could not make out the details of the conversation but it was clear they were speaking to each other in Mandarin.

A short while later a man looked in at him through a small gap in the back window, about 20 cm from Mr. Wei's feet. Mr. Wei presumed from the context it was the person Mr. Chai had been speaking to. He was certain the man was not Mr. Chai as he was taller and had noticeably longer hair. He could hear the trunk of the car he was in being opened and from what he could hear it sounded as though the defendant and the other man were moving things back and forth between two cars. Mr. Wei thought the stop at Pacific Mall lasted about ten or fifteen minutes.

It is an agreed fact that the defendant drove to the underground parking lot of Pacific Mall at which time Bennett Wei was covered with a blanket but could partially see his surroundings. Security camera footage from the underground parking lot at Pacific Mall later obtained by police lacked sufficient clarity to identify the vehicle driven by the defendant entering the garage and portions of the underground lot were not captured by the security cameras.

The Drive to Burlington

After leaving Pacific Mall, Mr. Wei testified, they drove for quite a long time on a highway. At one point during the drive, the defendant asked "did you offend anyone?" Mr. Wei replied "I have never offended anyone". The defendant then said "it looks like Toronto is not the place where you ought to be". Mr. Wei did not reply further. At another point the defendant said "your son has arrived home", leaving Mr. Wei with the impression the defendant had someone watching his home.

Mr. Wei testified he complained to the defendant that the handcuffs were too tight and were hurting his wrists and that he had a heart condition and feared being tied up in this manner could kill him. The defendant stopped to loosen the handcuffs twice during the drive after they left Pacific Mall before reaching their final destination that night.

The Stay in Burlington

The defendant eventually stopped at Canada's Best Value Inn at 2404 Queensway Dr. in Burlington where he registered and checked in under his own name. The guest registration card showed 2 guests assigned to Room 19. Mr. Wei testified that Mr. Chai took him from the car into the room and made him lie in the bathtub where he spent the night, handcuffed but with his feet untied.

The next morning, the defendant came in to the washroom and gave Mr. Wei some bread and water to eat. They had a brief conversation during which the defendant asked him "why didn't you go to Vancouver" Mr. Wei replied "I don't have that much money the houses there are too expensive".

Later that morning Mr. Wei complained he was too warm in the coat he was wearing and asked to take it off; the defendant replied "no, just persevere." Whenever Mr. Chai had to interact with Mr. Wei to allow him to use the toilet or for some other reason, he would wear his mask and before each such contact Mr. Wei heard a gun being cocked.

The Move to 118 Gemini Crescent

Mr. Wei testified he spent most of Wednesday January 18 in the bathtub at the motel and it was dark by the time they left. It is an agreed fact that at this point the defendant drove to his home at 118 Gemini Crescent with Mr. Wei in the backseat. Mr. Wei testified his eyes were covered tightly for the drive which he estimated took between two and three hours. When they arrived, before he was taken into the house, the defendant told him "don't look. If you do then you will die".

Once inside the home, the defendant took Mr. Wei to a small cold storage room in the basement and handcuffed one of his arms to a metal storage shelf. The defendant supplied Mr. Wei with a sleeping bag, some clothes taken from 14 Library Lane, water, noodles, a small bag to urinate into and a crock pot to defecate into. At all times, Mr. Chai continued to take steps to ensure that Mr. Wei did not see his face and every time he entered the storage room where he had handcuffed Mr. Wei to the shelf, Mr. Wei could hear the sound of him "pulling on the gun barrel".

The Police Investigation and Ransom Negotiations

The Part VI Authorization

On Wednesday January 18, investigators obtained an emergency Part VI authorization allowing them to intercept incoming calls to Hetty Wu's cell phone as of 12:10 p.m. that day. Consistent with what he had told Ms Wu before leaving, the defendant did not contact her that day.

As of noon on Thursday January 19, Mr. Chai had not contacted Ms Wu and the police had no pertinent intercepts, no idea who the suspect was or where he was keeping Mr. Wei.

Mr. Chai first contacted Hetty Wu's cell phone at 12:18 p.m. and another five pertinent calls were intercepted at 12:28, 16:38, 16:47, 18:12, and 18:26 as well as one relevant incompleted call at 18:24. Mr. Wei was on the line with the defendant for much of the time. On the other end of the call were Hetty Wu and/or Mandarin-speaking PC Tom Wan holding himself out as "Mr. Yang" a family friend who also happened to be "a professional who help people to solve problems".

Investigators conducted an emergency check on the location of the phone Mr. Chai used for the first call and discovered it was associated with a Rogers Fido SIM card that had been activated at 10:30 that morning and registered to "Chen of 280 Upton Cr., Markham" which police believed to be a fictional name the defendant used to purchase the phone. Rogers security advised it could not determine the phone's location because it had been turned off.

The Intercepted Ransom Negotiation Calls

Call #1: 12:18 [1 min 15 sec]

Mr. Wei testified that his face was covered just before the defendant called Ms Wu the first time, he heard the gun click and then the defendant escorted him out of the storage room, saying "we're going to make a phone call." The defendant instructed Mr. Wei to walk down several steps and he was then placed in a chair. Mr. Wei could tell the defendant was not using a cell phone, but rather "a dialer, like the IP phones" which Mr. Chai dialled and connected with Ms Wu.

When Ms Wu answered the phone the defendant asked "how much money have you prepared?" Ms Wu replied that she wanted to speak to her husband to know he was okay. Mr. Wei eventually came on the line and confirmed he was safe. The defendant asked "did you hear?" Ms Wu replied she did and was preparing to give him the money and that she had enlisted the help of a friend to help her gather the money and handle the matter. Without any reply from the defendant the call terminated.

Mr. Wei testified that after this call ended, the defendant "seemed pretty happy 'cause they're saying getting the money is not an issue. And then he said to me, "Your passport and Chinese residence card and identification documents are now all in my possession". He told Mr. Wei the big boss wanted him to pick up the money from Ms Wu and "then I'll get your son to drive his Mercedes Benz to come and pick you up." Mr. Wei found it strange that Mr. Chai knew his son drove a Mercedes Benz. He replied to Mr. Chai, "[h]ow about get my son to drive the Audi to come and pick me up?" and the defendant replied "[n]o, the vehicles cannot be switched."

Call #2: 12:28 [4 min 43 sec]

The defendant called back at 12:28. This time, "Mr. Yang" answered and told the defendant "my last name is Yang, I am a professional help people to solve problems. How should I address you?" After some unintelligible utterances with voices overlapping, the defendant indicated he wanted to speak to Ms Wu. The call went on for some time with Mr. Yang attempting to engage Mr. Chai, Mr. Chai refusing, Mr. Wei getting on the line and telling Mr. Yang to put his wife on, Ms Wu telling Mr. Wei to let Mr. Yang do the negotiating, Mr. Yang ultimately telling Mr. Chai they needed until 3:30 that afternoon to make arrangements and the defendant indicating he required $1.5 million in non-sequential $100 bills.

Before the call ended, Mr. Wei testified, Mr. Chai hit him, apparently intending Ms Wu to hear. Mr. Wei described what Mr. Chai said and did next:

…So, he hit me, meaning with the intention that my wife would hear it. And then after the phone was put – was hung up, he said, "You guys are all playing tricks. Stretch out your hands. I'm going to cut off your fingers. You see, for people in our profession, we have to keep something in order to go out." Meaning, since I've abducted someone, then I have to cause you some injuries before I let you out." Yeah, and to have limbs cut off, those are normal. And so, he said, "Stretch out your hands. I'm going to chop off your fingers". And then I was holding my – my fingers really tight, and I started crying. I said, "Who did I offend and I have to suffer from this?"...And I think he – he said, "Just don't offend anyone in the future."

As the defendant returned Mr. Wei to the storage room he punched him in the shoulder and lower back and also kicked him in the buttocks.

After both the first and second calls, the defendant asked Mr. Wei who Mr. Yang was. Mr. Wei truthfully replied that he:

…didn't know who Mr. Yang (ph) was. And I thought about it for a bit and I said it could be – could be the owner for money exchange. And then after the second phone conversation – after the second phone call he asked me again, "Who is this person?" I said, it could be a branch manager because our money is all in the same bank. So, perhaps the – this person's helping to collect the money. In fact, in the third phone call, I thought he was the bank manager, and that's how I addressed him.

Call #3: 16:38 [7 mins 15 sec]

The defendant called next at 16:38. Before "Mr. Yang" answered, the defendant can be heard saying "don't play games" to Mr. Wei. When Mr. Yang answered, the defendant asked if the money was ready. Mr. Yang said he wanted to speak to Mr. Wei to know he was still safe. After more back and forth about this Mr. Yang eventually told the defendant there was a delay in getting the money and suggested the possibility of a $10,000 down payment. The defendant repeatedly indicated he wanted to speak to Ms Wu and he would not deal with Mr. Yang. When Ms Wu ultimately came on the line, she mentioned that her purse containing her bank cards, which she needed to get the money, was missing. She told the defendant the bank managers were telling her it would take 3 to 5 days to prepare the money. Throughout this exchange, Mr. Wei is heard at various points plaintively urging his wife and/or Mr. Yang to get the money.

Call #4: 16:47 [12 mins. 4 sec]

When Mr. Chai called back at 16:47 and "Mr. Yang" answered, the defendant said "listen carefully", which was followed by the sound of Mr. Wei being beaten and crying out. The defendant asked "did you hear it", following which Mr. Wei is heard pleadingly calling out his wife's name. When Ms Wu then mentioned the possibility of a smaller amount as a deposit, the defendant replied "did you hear it?" Mr. Yang and Mr. Wei then discussed the possibility of mortgaging their house and Mr. Wei asked to speak to his wife. When Ms Wu came back on the line he exclaimed "they are beating me. But, if you cannot get a loan from the bank. I, I, I don't know the actual situation. You just say two points, one point. If it doesn't work. Can you mortgage your house first okay? Ms Wu replied "like this, you already knew. The bank have told me that for the cash. You should know those banks in Canada... It is difficult to withdraw cash in such short time, especially for large amount of cash. Mr. Wei is heard saying "they said to wait two more days, right?" Ms Wu replied "yeah, now how much do you want me to withdraw first?"

At this point the defendant can be heard saying "1.5 million, not a penny short." Following further discussion about how long it would take, the difficulties with the bank and further warnings from the defendant, Mr. Wei said the kidnapper still wants $1.5 million and Ms Wu said it would take so long time. After back and forth about the delay and problems with the banks, the defendant said "so, wait for your delivery tomorrow. Let's talk after you received a finger from your husband tomorrow…. Let's talk after he received a finger from your husband" and some while later threatened not to feed Mr. Wei for three days. Mr. Wei is heard bemoaning the fact that he will probably be killed, at which point the defendant directed him out of the room and beat him. Mr. Chai then asked his interlocutors "did you hear it?"

Call #5: 18:12 [4 mins 6 sec]

When the defendant called again at 18:12 he told Mr. Yang he did not want to speak to him and to put Ms Wu on the line. Mr. Yang replied she was "going to get money from friends"; Mr. Wei interjected "you tell my wife to pick up the phone". Mr. Yang replies …now his wife is crying. She cannot listen, she is too nervous…But I, I just want to tell you. We will go get some money from friends later". There is further back and forth along the same lines during which Mr. Wei refers to the fact "they" returned the bank card to 14 Library Lane. Mr. Yang indicates that Ms Wu is not there and he needs a few minutes to get her to return. The defendant states "I will call back in ten minutes, tell his wife to pick up the phone, you got it?" and the call is then terminated.

Incomplete Call: 18:24 [1 min 19 sec]

Before the call is answered the defendant is heard telling Mr. Wei "One million, tomorrow. You hear me? The other five hundred thousand, tell your (unintelligible) or whatever to find solution. Whatever identification cards all given to her. Monday. You hear me…Tomorrow our...big boss...(unintelligible)... (unintelligible)...Understood?...I do not want to hear you talk. (Unintelligible) them talk." The call terminates after it connects to the voicemail of someone unconnected to this case, evidently a wrong number.

Call #6: 18:26 [6 mins 57 sec]

When Mr. Yang answered the defendant's next call at 18:26, Mr. Wei told him to get Ms Wu on the line to which Mr. Yang replied "she is not here right now, I cannot find her." A discussion about efforts to get money from the bank followed with Mr. Wei interjecting at points to ask about what progress was being made. During the ensuing three-way discussion Mr. Wei mentioned a bankcard that was returned to Ms Wu that can access an account with $900,000 and the defendant provided details as to where it was left at 14 Library Lane. As the defendant directs him to get his wife on the phone, Mr. Wei tells Mr. Yang "just now I did negotiate a condition with them, which is...so the new condition is...he said to obtain the one million dollars by tomorrow…Because the one million dollars is from our bank account anyway. But we need your help, there are some (unintelligible) we do not know if it is possible to accomplish and so we really need your help... And then the other condition is, the balance of five hundred thousand dollars must obtain (unintelligible) whatever, but tomorrow once we got the one million dollars uh..." During the ensuing exchange, the defendant mentions Mr. Yang's earlier promise to have the money ready by 3:30 and repeatedly warns him "don't you lie to me again". Mr Chai is also heard telling Mr. Wei to warn them not to call the police, prompting Mr. Wei to then say "there are two points, point number one, they know that we did not call the police, so I, I, so please do not call the police at this moment. Okay?" Mr. Yang replied that they will not and after they agree to talk again at 20:30, the call ends.

Mr. Chai is Located and Arrested

At 13:31 a York Regional Police mobile surveillance unit stationed outside 14 Library Lane watched the defendant arrive in his rented blue Nissan Sentra, exit his vehicle, throw a duffel bag over the fence into the backyard, run back to the Nissan and quickly drive away. At that point, they did not know the man they were watching was the kidnapper. They attempted to follow, but lost sight of his vehicle. The duffel bag's contents included a black wallet holding Hetty Wu's identification.

After Call #3 [16:38], investigators working with Roger's security learned the phone Mr. Chai used for this call was in the area of Sapphire Dr. and Sunvalley Dr. in Richmond Hill. After Call #4 [16:47] they narrowed the phone's location to within a 49-metre radius of Joplin Gate and Gemini Cres.

At 17:35, a mobile surveillance team saw the same blue Nissan Sentra drive by 14 Library Lane. As they followed, the Nissan drove back to 118 Gemini Cres. Where at 17:55 the surveillance officers watched the defendant park it in the garage and then close the garage door. Not surprisingly, the investigators deduced the kidnapper and Mr. Wei were likely inside 118 Gemini Cres. Officers from the Emergency Response Unit, the Homicide and Missing Persons Unit and the Criminal Investigation Bureau were sent to the area along with a contingent of uniformed general patrol officers. Investigators and tactical officers discussed how to safely enter the residence and debated whether they needed a Feeney warrant.

Before the police took any action, just after 20:00 the defendant, who was evidently unaware that a force of police officers including snipers had surrounded the home, walked out the front door to check his mail and was then quickly arrested by ERU officers.

After the defendant's arrest, ERU members entered 118 Gemini Cres. and found Bennett Wei handcuffed to the shelving unit in a cold room in the basement.

Moments after the defendant was arrested, tactical officers activated an audio recording device to record any utterances he made. The device continued to record as the defendant was taken to hospital for treatment of an eye injury he sustained during his arrest and then transported to the police station and lodged in a cell. Later, after speaking to duty counsel, a video-tape recorded interview of the defendant was conducted by DC Shawn Koshandish.

The NCR Defence

Overview

Mr. Chai submits he should be found NCR because his mental disorder drove him to commit the six charged offences and deprived him of the capacity to know his actions were wrong.

Defence-retained psychiatrist Dr. Jonathan Rootenberg interviewed Mr. Chai on March 15 and April 13, 2017. Mr. Chai told the psychiatrist he had worked in China as a financial professional and had served as an unpaid consultant to the Chinese Anticorruption Bureau. Just before Mr. Chai moved to Canada with his family in 2015, an official there asked him "to try find the corrupt officials hiding in Canada, and said when I found them, to contact the Chinese Consulate".

Mr. Chai told Dr. Rootenberg he developed a profile for corrupt Chinese officials living in Canada, i.e. older Chinese men who like to golf and/or fish, drive Audis and frequent casinos, often in the company of young female sexual companions. Starting in Spring/Summer 2016, Mr. Chai started playing golf, visiting Casino Rama and going to other places where men fitting this profile might congregate.

In December, 2016, and again in mid-January, 2017, Mr. Chai rented a car to patrol neighbourhoods with high concentrations of Chinese residents. While patrolling on January 17, 2017, he passed 14 Library Lane and noticed an Asian man put golf clubs into the trunk of an Audi parked in the driveway and then drive off. He decided to investigate. After confirming 14 Library Lane was a Chinese household by looking through the front window and seeing magazines and calligraphy, Mr. Chai tried the front door handle and found to his surprise that it was unlocked. He decided to go in to look for documents that might show the man he had seen was a corrupt official.

As he explained to Dr. Rootenberg, Mr. Chai "did not know who would be inside; when he entered the home, he saw a woman sitting on a couch in the living room. He was surprised to find someone there and pulled out his gun and told her to lie on the ground, which she did. He had brought handcuffs with him as he was on a 'mission', and he handcuffed her. He then asked for her passport 'so I could identify them … if I took the passports away, they couldn't run away'…"

Importantly, in all his assessment interviews and when testifying before me, Mr. Chai maintained he entered 14 Library Lane with one thought in mind, to look for documentary evidence and take whatever he found with him. It was only upon being "shocked" to find Hetty Wu in the house that his thoughts turned to robbery and forcible confinement and, once he had found evidence Mr. Wei was a corrupt official, kidnapping.

Dr. Rootenberg felt "paranoid delusional beliefs that he was on a 'mission' to find corrupt Chinese officials in Canada" impelled Mr. Chai to commit the offences and deprived him of the capacity to know that "entering a stranger's home to find evidence of such 'corruption'; using a weapon; forcibly confining the victims; and then removing the victim from his home" was wrong. During the material time, Dr. Rootenberg concluded, Mr. Chai's "mental state was sufficiently thought disordered that he was unable to rationally consider whether his actions were right or wrong in a way most people would ordinarily be able to do" and consequently he met the criteria for an NCR finding.

To reach this conclusion, Dr. Rootenberg necessarily accepted the sincerity of Mr. Chai's self-reported motivation for his actions. Dr. Rootenberg knew about, but did not review, Mr. Chai's videotaped statement to police, recorded post-arrest utterances or the intercepted ransom-negotiation calls. The only information he had directly from Mr. Chai concerning his mindset at the time of the offences was what Mr. Chai had told him. In this report, Dr. Rootenberg observed "as in all forensic psychiatric examinations, it is necessary to consider the possibility that Mr. Chai is simply misrepresenting the truth in claiming that his psychotic symptoms primarily influenced his behaviour…" Nevertheless, for reasons never adequately explained, he was content to express his unqualified opinion without knowing what Mr. Chai had said during and immediately after the offences.

Crown-retained psychiatrist Dr. Karen DeFreitas assessed Mr. Chai upon his admission to the Forensic Assessment Unit of the Ontario Shores Center for Mental Health Sciences on July 25, 2017. She agreed he met the diagnostic criteria for delusional disorder (persecutory type) but disagreed his delusions drove his conduct or deprived him of the capacity to know his actions were wrong. In her view, Mr. Chai's persecutory delusions were more in the nature of "a capacity to come to believe that people are trying to harm him when that is not true. The belief he described that leads to the index offence, however, is not a persecutory belief, it's a very different belief that he is, in essence, empowered to work as a law enforcement on behalf of China, and that his actions are related to that belief." She did not believe Mr. Chai's claim that he committed the offences in furtherance of any such "mission" and considered it more likely his motivations stemmed from something like "a legitimate desire to serve his country coupled with a flawed understanding of the legal system" or, possibly, financial gain.

The defence retained Dr. Derek Pallandi to conduct a third NCR assessment. Based on his four hour interview of Mr. Chai on January 22, 2018, review of the other two NCR assessment reports "as well as an extensive array of collateral materials" and what was essentially a reprise of Dr. Rootenberg's analysis, Dr. Pallandi concluded that "from a clinical perspective" he would "support an NCR finding being applicable to Mr. Chai's case".

The Applicable Legal Principles

Overview of the s.16 Defence

Section 16(1) of the Criminal Code provides:

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.

The s.16 exemption from criminal responsibility thus consists of two components: "the first is a condition, a mental disorder. The second is an incapacity associated with that condition. On its own, a mental disorder does not exempt anyone from criminal responsibility. A mental disorder only exempts from criminal responsibility if it renders a person incapable of appreciating the nature and quality of an act or omission, or incapable of knowing that the act or omission was wrong."

Subsections 16(2) & (3) define the applicable burden and standard of proof:

(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.

The defence has raised the NCR issue in this case and consequently bears the burden of rebutting the presumption of criminal responsibility by proving the two applicable substantive elements of the NCR defence on a balance of probabilities:

i. Mr. Chai committed the offences while suffering from a mental disorder...

ii. …that rendered him incapable …of knowing [his actions were] wrong.

Legal Principles Governing Knowledge of Wrongfulness

Much ink has been spilled in attempts to interpret the phrase "rendered the person incapable of…knowing that [the act] was wrong". In the seminal decision on point, R v Chaulk, Lamer CJC explained that in ordinary circumstances the criminal law does not concern itself with whether an accused knew that his intentionally committed criminal act was wrong; sane persons are presumed to have the capacity to distinguish between right and wrong. NCR claims under the second branch of s.16(1) challenge that presumption and as such amount to a "special exculpatory defence which is based on lack of capacity for normative understanding." To succeed, an accused must established that by reason of mental disorder, the accused was incapable of knowing that an act was wrong according to the normal and reasonable standards of society. The focus of the inquiry is the thinking process of the accused, as opposed to his actual knowledge of wrongness; the question, in other words, is not whether an accused knew the act was wrong but whether he was capable of knowing it was wrong, as Lamer CJC explained:

"Moral wrong" is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong. The accused will not benefit from substituting his own moral code for that of society. Instead, he will be protected by s.16(2) [now s.16(1)] if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society.

In R v Ratti, Lamer CJC restated this principle in these terms:

In accordance with our decision in Chaulk, the trier of fact must be directed to consider whether the appellant was rendered incapable, by reason of disease of the mind or "natural imbecility" to know that his act was morally wrong in the circumstances. It is not sufficient to decide that the appellant's act was a result of his delusion. Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.

Later in R v Oommen, the Court reaffirmed Chaulk and clarified that "capacity to know wrongness" does not refer to a general capacity to know right from wrong but, rather, requires capacity to know that the particular act in question is wrong, having regard to the everyday standards of reasonable people. Writing for the full bench, McLachlin J. (as she then was) identified the key issue as "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". As she went on to explain, s.16 is of no avail to:

…the psychopath or the person who follows a personal and deviant code of right and wrong. The accused in the case at bar accepted society's views on right and wrong. The suggestion is that, accepting those views, he was unable because of his delusion to perceive that his act of killing was wrong in the particular circumstances of the case. On the contrary, as the psychiatrists testified, he viewed it as right. This is different from the psychopath or person following a deviant moral code. Such a person is capable of knowing that his or her acts are wrong in the eyes of society, and despite such knowledge, chooses to commit them.

These leading decisions make it clear that if an accused has retained the capacity to know that his actions would be regarded as wrong according to societal standards his subjective belief that his conduct was justifiable, even if driven by mental disorder, will not suffice to spare him from criminal responsibility. As McLachlin J. explained, s.16 "employs a 'cognitive test' and does not provide exemption from criminal responsibility for people who claim that mental disorder rendered them incapable of controlling their volition." In other words, it is not enough to establish that a mental disorder "drove" the conduct in question or made it difficult for the accused person to control himself. Rather, it must be established that mental disorder robbed the accused person of the capacity to normatively evaluate his conduct against the standards of "reasonable members of society" or "the everyday standards of the ordinary person".

Mr. Neuberger submits that "the issue for this court to determine is whether on a balance of probabilities the defence has convinced the court that Mr. Chai's actions were truly driven by his purported belief that he was effectively an agent of the Chinese government tasked with investigating and capturing corrupt Chinese officials." In support of that characterization of the issue, Mr. Neuberger cites passages from Oommen:

The crux of the inquiry [under s.16(1)] is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental disfunctions; [T]hese include … delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives the accused of the ability to rationally evaluate what he is doing.

[T]he 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.

One could certainly argue that focusing on the capacity "to rationally decide whether the act is right or wrong" or "for rational perception and hence rational choice about the rightness or wrongness of the act" contemplates a broader conception of this branch of the NCR test than what a focus on capacity "to know that the act in question was wrong having regard to the everyday standards of the ordinary person". If the words "rational perception" and "rational choice" in the above quoted passages from Oommen are understood in their ordinary sense, it is possible to imagine situations in which a delusional individual would be capable of understanding that society would view his actions as morally wrong and yet incapable of "rational perception and hence rational choice about the rightness or wrongness of the act". If the law understood the legally relevant incapacity in that broader sense, I would agree the issue would be whether Mr. Chai's actions were "truly driven" by his delusional beliefs.

This very argument was recently advanced in R v Dobson. The appellant in Dobson had killed two friends and unsuccessfully tried to kill himself after the three agreed to commit suicide together based on their acceptance of the accused's delusional perception that their souls would travel to a different, divine world. There was a strong causal relationship between the mental disorder and the killings such that it could be fairly said the killings were "truly driven" by the delusional beliefs. The trial judge found, however, that while through the lens of his delusional beliefs the accused saw his actions as right, the mental disorder had not rendered him incapable of understanding that society would regard his actions as morally wrong. Based on the same two paragraphs from Oommen that I have cited above, the argument on appeal was as follows:

The appellant submits that the trial judge erred in construing the "wrongness" component of s. 16(1) as limited to a cognitive awareness of how society would regard the morality of the appellant's actions. The appellant submits that "wrongness" also requires a consideration of volitional incapacity. In other words, did the appellant at the time he killed his friends have the capacity for rational judgment or choice? The Crown argues that the trial judge correctly captured the meaning of "wrong" in s. 16(1).

In response to these arguments, Doherty JA held:

It may be that different extracts from Oommen are open to different interpretations, however, the Crown's interpretation of Oommen is consistent with the interpretation adopted in an unbroken line of authority in this court: e.g. see R. v. Ross, R. v. Woodward, R. v. Guidolin, R. v. Szostak, R. v. Campione.

A recent description of the "wrongfulness" inquiry under s. 16(1) from this court is found in Campione, at paras. 39-41:

The ultimate issue for the jurors to determine was whether -- in spite of her delusions and any honest belief in the justifiability of her actions -- the appellant had the capacity to know that those actions were contrary to society's moral standards. The centrepiece of the inquiry is her capacity to know and to make that choice; it is not the level of honesty or unreasonableness with which she may have held her beliefs. Concentrating on the latter unduly complicates the inquiry for the very reason the appellant raises in support of her argument; it leads to the application of reasonableness considerations to the appellant's delusions and subjective belief.

In short, a subjective, but honest belief in the justifiability of the acts -- however unreasonable that belief may be -- is not sufficient, alone, to ground an NCR defence, because an individual accused's personal sense of justifiability is not sufficient. The inquiry goes further. The accused person's mental disorder must also render him or her incapable of knowing that the acts in question are morally wrong as measured against societal standards, and therefore incapable of making the choice necessary to act in accordance with those standards.

In my view, Oommen, as interpreted in the judgments of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.

The law is thus clear: the issue is whether Mr. Chai has proven that "through the distorted lens of his mental illness [saw] his conduct as justified, not only according to his own view, but also according to the norms of society" or, alternatively, whether he "on account of mental disorder, lack[ed] the capacity to assess the wrongness of his conduct against societal norms" and thus "lack[ed] the capacity to know his act [was] wrong."

While it is thus clear that s.16 contemplates an assessment of capacity to know the actions are morally wrong by Canadian societal standards, it is also true that, nevertheless, "[m]oral wrongfulness as contemplated in s. 16 is a slippery concept to apply": R v Campione. What makes it slippery in this case is that Mr. Chai likely was animated by delusional beliefs that to at least some extent drove his conduct and produced a subjective sense of justification in his mind, at least before he was caught. It is thus especially important to maintain focus on the applicable legal standard, and, in particular, the policy of the law that "a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was regarded as wrong on a societal standard": R v Ross; R v Woodward.

Delusional Disorder was Operative at the Relevant Time

All four expert witnesses, the three psychiatrists and clinical/forensic psychologist Dr. Arrowood, agreed Mr. Chai met the diagnostic criteria for delusional disorder (persecutory type) and that this disorder was operative at the time he committed the offences, albeit that Dr. DeFreitas meant "operative" in a more limited sense than the other psychiatrists.

The experts reached this consensus diagnosis based on Mr. Chai's assessment interviews, medical records from CECC, Ontario Shores and from China, information provided by his wife, Fenfang Tong, psychological assessments conducted by forensic psychologists Dr. Arrowood and Dr. Leong and information about the offences provided by the litigants.

The consensus diagnosis was amply supported by other evidence I heard. Ms Tong testified that since about 2010, Mr. Chai would tell her that people were talking about him and stalking him. More recently, since 2015, she testified, this had worsened and since that time, after they move to Canada, the defendant kept telling her that people were following him, and even when he was driving he kept looking at the rearview mirror. He has also installed a dash camera to monitor everything around. And he told her that he felt that the neighbour was also observing him. So, therefore, even at home they had video surveillance equipment installed, as well as an alarm system. At the same time, all the curtains at home have been replaced with thicker fabric that does not let in any light.

He also told her some unusual thinking. Because ever since they landed in Canada, after they arrived, they did not purchase any property. He always said that prices of properties here are so expensive, it's because of all the corrupt officials in China, who have speculated and pushed prices up. He said they should wait until the new government in China will hit the corruption very hard, so that all these corrupt officials will not be able to speculate on properties, and then the prices will come down. He also had quite animated and sometimes heated discussions with his friend Mr. Ding, who is engaged in real estate property business, about the situation of property prices. Because he can become excited and agitated easily, after some time, friends have already observed this, and they will not try to bring up this subject again.

At this stage I pause to amplify my reasons for finding Mr. Chai suffered from a mental disorder at the relevant time, not because the diagnosis is itself contentious, but rather because the nature of persecutory delusional disorder and differences in the underlying basis for the experts' diagnostic conclusions are both pertinent to deciding the issue that is contentious in this case, whether Mr. Chai was rendered incapable of knowing his actions were wrong.

Dr. Rootenberg gave this description of delusional disorder (persecutory type):

The essential feature of a delusional disorder is the presence of one or more non-bizarre delusions that persist for one month or longer. Perceptual disturbances (e.g. hallucinations) if present, are not prominent. Apart from the direct impact of the delusions, psychosocial functioning is not markedly impaired, and typically behaviour is neither obviously odd nor bizarre. Parenthetically delusions are deemed bizarre if they are clearly implausible, and not derived from ordinary life experiences (for example being an alien, being able to fly, or having supernatural powers; in contrast, non-bizarre delusions involve situations that could conceivably occur in real life (for example, being followed, or loved at a distance).

Psychosocial functioning in persons who suffer from delusional disorder, is variable. Some individuals may appear to be relatively unimpaired in their interpersonal and occupational roles. In others, the impairment may be substantial; when poor psychosocial functioning is present, it arises directly from the delusional beliefs themselves. Indeed, a common characteristic of persons suffering from delusional disorder is the apparent normality of their behaviour and appearance when their delusional ideas are not being discussed or acted upon. In general, social and marital function are more likely to be impaired than intellectual and occupational functioning.

There are several subtypes of delusional disorder; it's not uncommon to find more than one present, in a given individual.

The persecutory subtype (the one that Mr. Chai most likely has), applies when the central theme of the delusion involves the persons' belief that he or she is being conspired against, cheated, spied on, followed, poisoned or drugged, maliciously maligned, harassed, or obstructed in the pursuit or long-term goals. Small slights may be exaggerated and may become the focus of a delusional system. It's often the case that these individuals believe the injustice must be remedied by legal action, and the affected person may engage in repeated attempts to obtain satisfaction by appeal to the courts and other government agencies.

Typically, delusional disorder has its onset in mid to late life, as in Mr. Chai's case. The underpinnings, or etiology of this disorder, is unknown. Most frequently, one sees a waxing and waning, but chronic, course; typically some benign or innocuous event is misinterpreted by the sufferer, giving rise to an escalating spiral of delusional ideation, which may result in hospitalization or arrest, or may wane spontaneously. Episodes of waxing of the disorder are typically precipitated by ideas of reference, meaning the notion that essentially benign or random events are of special significance to the sufferer. Once individuals suffer from this disorder, particularly in active phases, their interpretation of various events usually takes place through a delusional filter, reinforcing their beliefs.

Persons suffering from this disorder typically benefit from separation from the object of their delusional beliefs, and from sustained treatment with antipsychotic medication. Unfortunately, persons suffering from this disorder typically have little insight into the fact that they suffer from a disorder, and typically eschew medication treatment; individuals with delusional disorder are notoriously difficult to treat, over the longer-term.

Dr. De Freitas described the disorder this way:

So delusional disorder is a psychiatric condition marked by delusions which are fixed false beliefs. There can be a number of different types of delusions. For some people it's persecutory delusions which is the belief that people are out to get you in some way. There's other types as delusions as well. In his case I believe he has persecutory delusions. In order to meet criteria for delusional disorder you cannot meet criteria for other conditions that can cause delusions such as schizophrenia or a mood disorder, for example, so you have to rule those out before you can be diagnosed with delusional disorder.

And delusional disorder does not generally affect your level of functioning apart from the delusions. So, for example, if I have the delusional belief that Justin Trudeau is in love with me, I can still function perfectly normally aside from that belief, and if you don't ever bring it up you might not even notice that there was something wrong with me. The only time delusional disorders have a significant impact on your functioning is if it's directly related to the delusion. So, for example, if I think the mafia is out to kill me, I may not leave my house, I may lose my job, etc., because of that, but it's directly related to the effect of the delusion.

Dr. Rootenberg's stated rationale for the diagnosis was:

In my clinical psychiatric opinion he suffers from a major mental illness, and the onset of Mr. Chai's major mental illness pre-dates the current allegations. His symptoms and clinical presentation is most consistent with Delusional Disorder, Persecutory Type…

The "symptoms and clinical presentation" Dr. Rootenberg was referring to appear to be Mr. Chai's self-reported symptoms at the time of the offences, "namely delusional and paranoid beliefs; at the time of the index offence, Mr. Chai believed that he was working for the Chinese government and was on a secret mission to find corrupt Chinese officials in Canada, and then report them to the Chinese authorities".

In contrast, Dr. DeFreitas arrived at her diagnosis on the basis of a more extensive and historically-rooted analysis which, importantly, did not depend upon acceptance of Mr. Chai's self-report regarding his "mission".

There is nothing inconsistent with the diagnosis of delusional disorder and Mr. Chai having fabricated his story about the Chinese-government sanctioned "mission" to apprehend corrupt officials. The truth or falsity of that claim must be assessed on its own merits.

Mr. Chai's Account

Background

Mr. Chai was 45 in January, 2017, married to Fenfang Tong since 2002, with two children aged 12 and 9. Mr. Chai lived in China his whole life until landing in Canada an "investment immigrant" in 2012; he continued to travel back and forth to China until 2015 when he resigned all of his positions in China and moved to Canada permanently with his family. In China, after completing undergraduate and MBA degrees, he had worked as analyst and eventually a chief analyst at state-owned securities companies in China; as his career progressed, he appeared on television as a stock commentator and was frequently invited to speak about finance issues at government institutions. Once in Canada, neither he nor Ms Tong were employed; they lived off income derived from investments held in China and valued at several millions of dollars. Since their arrival in Canada in 2015, the family lived in a rented home at 118 Gemini Crescent.

Origin of Mr. Chai's "Mission"

Mr. Chai testified he became interested in corruption and bribery of government and state-run business officials when working as a financial analyst in Hangzhou, the capital city of Zhejiang Province where he was hired by the Anti-Corruption Bureau for that province as an unpaid consultant to teach corporate finance and cash flow to new employees.

In early 2015 Mr. Chai told the head of the Anti-Corruption Bureau for Zhejiang Province, "Mr. Chen", that he had to resign his position as he was about to leave for Canada. Mr. Chen replied "there so many corrupt government officials in Canada if you find any you can just let us know". Mr. Chai replied that he would call if he learned anything but Mr. Chen told him to contact the Chinese Embassy in Ottawa instead.

Mr. Chai moved to Canada in March, 2015. That April he learned of "a warrant for arrest of people around the world, so these 100 people they are the top corrupt officials in China and they already have warrant for their arrest in China, but they have fled overseas" including "26 people who are in Canada". Mr. Chai considered "this to be a signal sent to all employees of the Anti-Corruption Bureau saying that China is now taking action and this operation is known as the Skynet operation and so, it's an operation to – to capture the people who were corrupt when they were in China."

When asked in-chief "was it your belief that you were to find corrupt Chinese officials hiding in Canada?", Mr. Chai replied "first of all, I believe all Chinese have the responsibility and obligation to do so and secondly, I happen to be their consultant, I haven't resigned from that position. As a consultant I'm their lecturer and so I need to lead by example. So, I believe that I have more authority and obligation to lead by example."

Mr. Chai Begins Looking for Corrupt Officials

By early 2016, Mr. Chai's family was settled in at 118 Gemini Crescent, he was familiar with the GTA and had developed a profile based on his conception of a typical corrupt official living in Canada, i.e. an older Chinese man living in a predominantly Chinese neighbourhood who drove an Audi (according to Mr. Chai, the preferred car of state officials in China), spent his leisure time playing golf and or fishing, frequented casinos and would likely be seen in the company of a significantly younger girlfriend.

Mr. Chai testified that in the Spring of 2016, two things happened that made him decide to start actively looking for corrupt officials: the Chinese government promulgated new anticorruption policies and his wife started complaining about him sitting around the house all day. Mindful of the profile he had developed, Mr. Chai started playing golf, going to casinos and, more generally, "went to these locations to find people with these features…And also places where Chinese tend to gather." He also spent time watching informational videos on the Anti-Corruption Bureau's website.

By Mr. Chai's own account, his efforts to locate corrupt officials throughout most of 2016 were more hapless than fruitful. In the summer of 2016, he had seen an older gentleman in the company of a younger woman at the casino and had followed him on the bus back to Pacific Mall, but when they got there the man got into his car and drove away and Mr. Chai was unable to follow him.

Mr. Chai Rents Cars

Mr. Chai ramped up his efforts, however, by renting a car for a week in December, 2016, to patrol predominantly Chinese neighbourhoods. He did so again on January 11, 2017.

On the morning of January 17, 2017, Mr. Chai still had the rental car and while patrolling a Markham neighbourhood that afternoon, he happened to pass 14 Library Lane where he noticed an Asian man come out of the house, put golf clubs in the trunk of an Audi parked in the driveway and then drive off. Mr. Chai decided to investigate. He parked the rental car in a nearby lot and then approached the house on foot. After looking in the front window and seeing Chinese magazines and calligraphy – he had seen the man was Asian, Mr. Chai pointed out, but still needed to confirm he was Chinese – he tried the front door handle and was surprised to find it unlocked. Intending to look for documentary evidence establishing the man he had seen was a corrupt official, Mr. Chai decided to enter the home.

Mr. Chai gave this description of what ensued:

So, I went in the lights were not on, it was quite dark and when I walked across the living room I heard that there's a lady sitting on the couch and I was shocked, I thought there was no one at home and so I told her don't move and lie down and then I cuffed her… But at this point I still wasn't sure whether that's corrupt Chinese official, but in China all corrupt officials have a very distinct feature and the Chinese Government call them the naked official. It means it's an official in the Chinese Government or a state owned enterprise, but these people would send their spouse and children all overseas and then they would transfer all the assets from the corruption and send them overseas and then these officials they would have a – they would have status to reside in these other countries and so once people had discovered their crimes then they could leave at any time…

…and so I thought I should take a look at their passports first and so I asked the lady where did you put your passports. She said it's on the second floor and so I took her to the second floor and she said it's in the drawer and I asked for the key and the drawer was opened and then I took her down to the basement and then upstairs I – I saw her – their passports. Now, these passports are – a feature of these so called naked official, so there's three persons in the family and the wife and the son both have citizenship in Canada, whereas the male, the corrupt official is a permanent resident. At the same time, I saw a lot of card, a lot of identity documents and bank cards and one of the cards is a state – state owned enterprise in Beijing and it's an insurance card for that enterprise. It means this person worked at a state-owned enterprise in Beijing and also a lot of the household registration documents from China. Now, these corrupt officials when they were in China and they receive these corrupt money they could not deposit them into the bank and so there were news at the time saying these corrupt officials liked to buy properties… So, when I – when I saw these...when I saw that there's so many of these deeds then I was able to confirm that this is a person from Beijing, he's a government official. Now, he – he's possibly a corrupt official, but I still need to ask to confirm.

Mr. Chai explained that among the documents he found a social insurance card issued by the city of Beijing for enterprises under their direct control which he regarded as direct proof that the person was working in a state owned enterprise in Beijing. His suspicion was furthered by the property ownership documents he saw because houses are so expensive in Beijing that only a very wealthy person could own them and the only way an official could obtain enough money to do so would be through corruption.

At this point he believed based on the documentary evidence that the man he saw driving off in the Audi was a corrupt official, but felt that an interview was still required to confirm this. He asked Ms Wu when her husband was returning and she replied after he finished golfing. According to Mr. Chai, he told Ms Wu that he would wait for his return.

When Mr. Wei got home Mr. Chai subdued him much as Mr. Wei described in his testimony. Mr. Chai gave this description of his interrogation of Mr. Wei after tying him to the chair in the basement:

For instance, in the beginning what's his name, where is he from, what did he do in China and when he came in I also did a search on him and I took away his cell phone and I asked him for the pass code for the cellphone because I want to look at the chat history within his WeChat. And then after thirty minutes to an hour of talking and I discover I confirmed that he indeed is a corrupt official because he is a habitual liar. Like there are things that were quite clear, I asked him about whether he worked in a state-owned enterprise he said, no. I said you have a lot of properties in Beijing, he said, no. And then we chat in one of the group I went through the chat history and there's a lot of transactions and I was asking him why are you moving around money in the amount of millions, and he said he runs a small business, he has nothing to do with his money. And so, I asked him where did you work, what kind of small business did you do, okay and he – he talked about his company being that does [petroleum and natural gas] valves. And so, from these I could confirm that he's a person who had made a fortune out of corruption and bribery. Why, because in China the [petroleum and natural gas] industry is state owned.

Now, because I was a researcher and I researched into these petroleum and gas companies that have stocks being traded and so I know every – everything that – every transaction that they do is through bidding, but very often it will come down to purchasing items from people whom they have some kind of connection and relationship. And so, people who want to enter into these industry there's a very high threshold for them and so I was asking him what kind of relationship did you have in order to sell your products to petroleum and the gas enterprises, but from then on he refused to answer. So, when I come down to the specifics and he could no longer lie, for instance I asked do you intend to purchase real estate property in Canada and he said, no, and, but right in his WeChat history I could see there's a group for real estate buying and selling and the names involved there are Big Wei, that's his last name, Wei, W-E-I, and I assume that would be him and then the Little Wei would be his son, so there's chat history between the Big Wei and Little Wei. And within this group there's only five or six people and – and I – as I go through the chat history it seems they intend to purchase property around the Markham area in the amount of $2 million or $3 million dollars and so when he said he did not and did not intend to purchase any property, I asked what is this group for and then he stopped talking.

Mr. Chai was now fully satisfied that Mr. Wei was a corrupt official. This was Mr. Chai's description of his thought processes at this point:

This is – this is my thinking at the time, So, when he saw me and then as we sat down to talk he asked whether I'm a thief, what – how much money do you want and in the conversation that last for 30 minutes or an hour he kept saying I have a few hundred dollars, I have $10,000 if you want I can give them to you. And so, for me it seems like this corrupt official he's really afraid of death, he would give away money to save his life. And so, when I was asking him about purchase property I saw in the group that he intends to buy several, and I got really upset. My original intent when I find these corrupt official is to bring them to the Chinese embassy, but he kept talking about money, how much money do you want and I – and I saw that he – the property that he intends to buy is worth $2 million and so I said $2 million.

At this point, counsel asked Mr. Chai if at this point he had decided to take Mr. Wei outside of the house with the intent of going to the Chinese Embassy and also to explain his intentions in relation to the amounts of $2 million and $1.5 million. The defendant replied that he had indeed decided at that point to take Mr. Wei to the Chinese Embassy in Ottawa and then proceeded to explain his thinking regarding the money:

So, when I – when I talk about the $2 million he said he didn't have this property and he pretend to be in much difficult and so he's saying at most I could get you $800,000, 900,000, but for me whether it's more or less money it doesn't matter, but in my mind if I have caught these corrupt officials, but Canada is not going to send money back to China and so if he gave me this amount of money then I could send them back to China and so I said, okay, let's take the figure in the middle, 1.5 million.

Mr. Chai testified he was "100% certain that he is a corrupt government official, so it's only a matter of how much he had – how much money he – he had obtained through corruption." He testified that he wanted to take Mr. Wei to the Chinese Embassy because it taken quite a bit of effort to finally find a corrupt official and he knew the embassy is Chinese territory and "so if I send them to the embassy that he would not be able to escape."

Beating Mr. Wei

Asked if he hit Mr. Wei while they were at the basement at 14 Library Lane, Mr. Chai replied:

So, after the questioning I went upstairs to get prepared to – to get prepared, but in between I would come back down to check them out, but I saw that he – he had removed the comforter on top of his head, maybe he thought I'd been cleaning up for a long time maybe he thought I had left. Now, because when we were outside, it's cold, I had that mask on, but in the house, it gets really warm and so I had pulled the mask down. So, when I saw him he was at the same time looking at me and he saw my face, and so I got angry. I felt that this corrupt official is cunning and – and he saw my face and he might take revenge and so, I got quite upset and so I used the handle of the gun to strike his head once.

The defendant testified that before leaving he could see that Mr. Wei's head was bleeding so he found a toque to apply pressure to the wound. He also testified that "because I – I was thinking about going to Ottawa and those few days Toronto is pretty cold, so I was taking Ottawa probably would be even colder. And so, as I was gathering the stuff I went and asked his wife whether they have warmer clothing and then I'm also concerned that the backseat might be cold and so I got a comforter from their home and then two or three pieces of clothing, pants and then we left."

The defendant acknowledged that he took the passports, more than 20 bank cards, property registrations and a household registration book for a Beijing property, a key for a Mercedes-Benz and two notebook computers that were on the desk in the study. He regarded these items as potential evidence that he would hand over to the Chinese Embassy.

The defendant testified that Ms Wu had advised him she would need 2 to 3 days to collect the funds. He told her that could be no later than Thursday, thinking that it would take 5 to 6 hours to drive to Ottawa and he had to get there Friday or else because it was the weekend there might not be people at work at the Chinese Embassy." He testified that to his recollection he hid Ms Wu's cell phone in a closet but acknowledged that his memory might be off and that she may been correct it was in the fridge.

The Kidnapping

Asked about what happened next after he had put Mr. Wei into the back of the rental car, the defendant gave this answer:

My – my original thinking was once I – once I catch a corrupt government official then we'll go straight there, but now I changed my mind, I was asking him for money, but he's saying he – he don't have that much money now and so, I wasn't sure what to do for the next few – two or three days and so I was just driving around outside, but then I saw a TD Bank, so I stopped the car in the mall and I asked him about the PIN number for his bankcard, that's when I was at his place, so I thought maybe we can withdraw some money for the next two or three days and these are money coming from a corrupt official anyways, so for the next two days expenses maybe I could take – take out $1800, but I hesitated for some time, so I stop and then I drove and I stop for some time, so I – I was still thinking whether I should wait or should I just go straight there. And then as I go through the stuff I see there's lots of documentary evidence, so I thought if I could also bring along the money then the evidences against the corrupt official would be even stronger and so from his bankcard I withdrew a couple of hundred dollars, but when I came out from the bank I thought maybe that's not enough and so I went to the auto teller and I got a couple of hundred dollars and then it was late when I got back into the car, I thought we need to find a place to stay and so I drove and drove and on the highway I was looking for places to stay and then I found a hotel right beside of the highway and I got a room and stayed there. And so, I helped him out from the backseat…

…like I said he's got more than 20 bank cards and there were two or three that are from – issued by TD. And I also look up his TD... Okay, a TD savings card and I – I look up and see that there's – there's around $20,000 in there, so I took out a couple of hundred, I don't remember the exact amount and then when I came out, I was thinking only if I were to get a hotel and get fuel then the money that I took out would not be sufficient and so went and took – withdrew a couple of hundred more dollars.

The Stop at Pacific Mall

The defendant testified that after he went to the TD Bank he wanted to change his clothes because the Wu/Wei residence was very warm and he was sweating. He testified he had kept a change of clothing in his car which was parked in the underground parking lot at Pacific Mall, so he went there to get it. Asked what car he was referring to, the defendant gave this reply:

It's my Toyota Sequoia. Now, my English is not that great, so when I went to a car rental it's a Chinese store and from the web I – the closest Chinese car rental place that I could find is in Scarborough. Now, I – I said that's a bit far and so I asked them if they could hand over the car in Richmond Hill and they said the furthest they are willing to go is – to hand the car to me over at the Pacific Mall. And so, every time when I rent a car I would ask them to send a car to the Pacific Mall and then I'll switch cars there. So, every day I would go to the Pacific Mall and then I park my car there and take the rental and the go around to look for corrupt officials.

When they arrived at the Pacific Mall the defendant drove down to the underground parking lot and parked next to his own Toyota Sequoia. He changed his clothing and then moved the box with the computers taken from 14 Library Lane into the trunk of his own car. He had also intended to transfer the small bag that held his equipment into his car, but he forgot.

While he was doing these things, he testified, "from time to time I would check out the window to see if he is moving and I – I don't know why, but once he got into the car he started sleeping and he even snored and after I change my clothes I looked at him and he didn't move and then I saw that the – the – to call him sometimes his eyes were exposed, so I was looking to see if he did it on purpose or whether he did it in his sleep and so I was frequently checking them out."

The defendant testified they were in the Pacific Mall parking lot for 10 to 20 minutes. He denied that there was a second person there.

The First Night at the Burlington Motel

Upon leaving the Pacific Mall, the defendant's intention was to find a hotel room. He testified that it was late at night and he couldn't find any so he aimlessly drove along the highway trying to find one until he eventually found the motel in Burlington.

Asked if he assisted Mr. Wei into the motel room, the defendant replied that he did and that he helped him to put his clothing on. He testified that Mr. Wei still had his handcuffs on and was sleeping "so I even put the comforter on him and then I helped him into the room." He acknowledged once inside the room he "asked" Mr. Wei to sleep in the bathtub. Mr. Chai then went to bed.

When he woke up the next morning he felt hungry and could also hear Mr. Wei yelling out that he was hungry and needs food. Since they were just beside the highway there was no McDonald's or other place for food he retrieved bread he had in the car and told the "corrupt official" all he had was bread and they would get other food in the evening. He gave Mr. Wei half the bread and some water and left him in the bathroom.

Mr. Chai testified that:

…when I was asleep in bed I was thinking – I was thinking staying in the hotel is not the best solution, so I was thinking maybe we should just go home go to my home and – and so I was thinking I'll get my wife and my children to go elsewhere to have fun. And prior to this I – I don't know where my kids found out, but they learn about the Great Wolf Lodge and about the waterpark they had asked to go there. And then I – in the morning I called my wife, it's Chinese New Year very soon and so, I said how about you bring the two kids to the Great Wolf Lodge.

Now, typically expenses for – for going out for fun usually these are done by my wife and so, I told a lie I said I've won money and so, the expenses – and she does not have to pay for the expenses and but, since I've won we can spend around $1300 and she agreed.

Mr. Chai waited in the motel room with Mr. Wei in the bathtub for most of the day. He spoke to his wife at some point and confirmed she had taken the kids to Great Wolf Lodge at about noon. It was already dark out when they left the motel. He drove back to the Pacific Mall in order to get the remote opener for his garage and then drove to his house.

Events at 118 Gemini Crescent

When they arrived at 118 Gemini Crescent, Mr. Chai put Mr. Wei in the basement. Mr. Wei had been complaining he was hungry and so that defendant went to the kitchen but found that his wife had cleared out the fridge and the only thing they had was instant noodles. He asked Mr. Wei if he would like some and if he preferred them spicy or not. He went back upstairs and prepared the noodles which he gave to Mr. Wei and then went to bed.

When he woke up on the Thursday, it occurred to him that he should call his wife and also that since he was asking for money for Ms Wu he should get a bag for her. He told "the corrupt official, stay here and don't yell and don't scream" then he left to go to Walmart and the Pacific Mall. While he was in the Pacific Mall he purchased a used phone and a phone card before going to TNT to purchase some food. While he was at the TNT he noticed they sold IP calling cards and it occurred to him if he used his cell phone he could be tracked and it would be safer to use an IP card. After purchasing two black bags at Walmart, Mr. Chai returned home.

At about noon he called Ms Wu and asked whether she had the money ready. There were several more calls that afternoon. At one point that day, Mr. Chai drove to 14 Library Lane and threw one of the black bags into the backyard intending Ms Wu to use it to put the money in. Later that day, after being advised by Ms Wu that he had her purse containing her cards which prevented her from withdrawing money, he drove back to 14 Library Lane and threw it into the backyard.

Mr. Chai was asked if during the course of the phone calls to Ms Wu there was a point when he struck Mr. Wei. He replied "in between I don't remember which phone call, the person he picked up the phone said something about having only $10,000 and that got me angry and so, I kicked him – I kicked him twice. I kicked the corrupt official twice." He explained he was angry because he felt the offer of $10,000 was an insult to his intelligence because Mr. Wei had offered that much back at the house. He began to feel that not only was the corrupt official lying, his family was too and that made him angry.

While waiting for Ms Wu to make arrangements for the ransom that evening, Mr. Chai testified, he had nothing to do so he decided to check his mail box outside the front door and that was when "the police got me."

Assessment of Mr. Chai's Account

Introduction

Mr. Chai testified he committed the offences solely in furtherance of the "mission" he had been assigned by Mr. Chen, the Chinese anticorruption official, before he left China for Canada in 2015, a law enforcement action which he felt dutybound to complete both as a Chinese citizen and an anti-corruption consultant.

Acceptance of the likely truth of this core assertion is a necessary condition of a finding that Mr. Chai has rebutted the presumption of criminal responsibility on a balance of probabilities. For the reasons set out in this section, I do not accept the likely truth of Mr. Chai's self-report in relation to his state of mind and motivations at the time he committed the offences. On my assessment of the evidence, Mr. Chai may have committed these offences in furtherance of the "mission" as he described it, but it cannot be said he likely did so.

I begin by observing that Mr. Chai's account was certainly coherent in the sense that it was responsive to the questions he was asked and had a logical chronological narrative structure. As Dr. Rootenberg put it, Mr. Chai's "thought processes were concrete". It was clear to me that Mr. Chai's an intelligent man. He was quite capable of holding his own when he was cross-examined and during the formal police interview. There is nothing in the nature of delusional disorder that precludes Mr. Chai having that disorder and yet also providing a false account of his motivations in committing the offences. Unlike other psychotic conditions, the experts explained, delusional disorder typically does not impair thinking or functioning in areas apart from the delusion. For reasons of his own, Mr. Chai may have made up the story about his mission even while holding other delusional beliefs, including beliefs that attached in some way to corrupt officials.

On the other hand, Mr. Chai's demeanour and presentation when he testified – the seamless transition between rational and apparently delusional beliefs including his consistent and unselfconscious use of the moniker "corrupt official" when referring to Mr. Wei – struck me as genuine, not contrived. This certainly left me with the strong impression that, at a minimum, he has delusional beliefs that are attached in some manner to corrupt officials. Moreover, as I noted at the time he testified, Mr. Chai's account of his "mission" struck me as so eccentric it seemed difficult to imagine how he could have made it up.

At that time, however, I did not have the complete picture of information relevant to assessing the sincerity of his self-report that I now have. It is also relevant that Mr. Chai's self-reported motivation for committing the offences is, if true, rooted in both reality and delusion. Mr. Chai certainly did not commit these offences in any official capacity, but the Chinese government's interest in curbing official corruption and efforts to repatriate alleged offenders who have fled to other countries, including Canada, has been widely publicized. This makes it less difficult to imagine how Mr. Chai could have a genuine fixation on corrupt officials rooted in both reality and his persecutory-delusional mindset and yet make up the added gloss of having been assigned a mission he felt duty-bound to complete.

I am also mindful that placing too much emphasis one's subjective impression of a witness' demeanour is fraught with peril. Demeanour can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. Witnesses not infrequently come to sincerely believe stories that started out as conscious fabrications, making it easy to misinterpret subjective sincerity as truthfulness. Witnesses, being human, are complicated and this is certainly no less so of witnesses who, like Mr. Chai, also labour under an active psychotic thought-disorder. For these reasons, I am very mindful that trial judges must "bear in mind that, to the extent possible, they should try to decide cases that require assessing credibility without undue reliance on such fallible considerations as demeanour evidence": R v Rhayel.

My impressions of the testimony together with Mr. Chai's references to corrupt officials before and during the offences lead me to conclude that Mr. Chai's delusional disorder likely influenced a genuine fixation on corrupt officials. It does not follow, however, that Mr. Chai's delusions extended to a belief that he was on a mission which he was duty-bound to complete. It is entirely possible he had other motivations for committing the offences and yet his attitude about corrupt officials contributed to a sense of self-justification.

All of this leads to one conclusion: subjective impressions should not be ignored but nor should they take precedence over careful scrutiny of the content of the evidence with reference to whether Mr. Chai's claim to have committed the offences solely in furtherance of his "mission" is (i) internally consistent, and, (ii) aligns with what he actually did.

Mr. Chai's Description of his Assigned Mission

Mr. Chai's first recorded description of his mission that has found its way into evidence is what he told Dr. Rootenberg during the March 15 and April 13, 2017, assessment interviews. Mr. Chai acknowledges he said nothing about the mission to anyone, including his wife, prior to committing these offences nor did he say anything about it to police after his arrest.

I do not consider either Mr. Chai's failure to tell anyone about the mission before the offences or to explain his motivations to police after his arrest to be significant in themselves. I accept the psychiatric evidence that persons with delusional disorder often keep delusional beliefs to themselves and, moreover, assuming arguendo Mr. Chai was acting in furtherance of the mission he described, his decision not to share that information with police is hardly surprising; I would be more surprised if he did share it, in fact.

Of course, if Mr. Chai had said things prior to or during the offences that were consistent with his self-report, this would obviously have enhanced his credibility. Indeed, his mention of corrupt officials before and during the offences is a major reason why I have concluded his delusional disorder likely attaches to corrupt officials in some manner. Similarly, had Mr. Chai told police about the mission in the immediate aftermath of his arrest it would have been open to me to treat this as circumstantial evidence supportive of the veracity of his account: R v Edgar.

Prior consistent statements such as these, had they been made, while not technically "corroboration", would have had a similar effect upon the assessment of Mr. Chai's credibility. The absence of such evidence is not a reason to summarily reject Mr. Chai's evidence, but it does serve to remind that Mr. Chai's professed belief that he had a moral duty to complete his mission and that this justified his actions stands largely on its own and as such it must be carefully scrutinized with reference to both its internal consistency and its plausibility in the context of the evidence as a whole.

Mr. Chai's consistent description of his assigned "mission", both in the assessment interviews and in his testimony before me, was that if he located any corrupt officials in Canada he was to report back to the Chinese Embassy. By his own account, Mr. Chai was never told to forcibly apprehend and then deliver corrupt officials to the embassy or to attempt to recover the proceeds of their crimes.

Mr. Chai's first recorded description of his assigned mission is found in Dr. Rootenberg's summary of the March 15 and April 13, 2017 assessment interviews. Mr. Chai told Dr. Rootenberg that "Mr. Chen" had instructed him "to try find the corrupt officials hiding in Canada" and "when I found them, to contact the Chinese Consulate"; in the second interview, Mr. Chai described his instructions as "to investigate these corrupt officials and report back to them", i.e. to the Chinese Embassy. Dr. Rootenberg's summarized Mr. Chai's description of his "mission" this way:

Mr. Chai believed that he was working for the Chinese government and was on a secret mission to find corrupt Chinese officials in Canada, and then report them to the Chinese authorities" [first report, July 16, 2017]

...at the time of the index offence, Mr. Chai firmly believed that he was…on a secret mission to find corrupt Chinese officials in Canada, and then report them to the Chinese authorities …[Mr. Chai felt his actions were justified by his] "duty to investigate and report the behavior of Chinese individuals whom he believed were engaged in "corrupt" activities" [second report, May 18, 2018]

When assessed by Dr. DeFreitas in the summer of 2017, Mr. Chai told her "some officials from the Chinese 'anticorruption bureau' had told him to watch for corrupt officials, and told him if he found anyone that seemed suspicious, he was to follow them and investigate"; Mr. Chai also related to her how "Mr. Chen told him there were many corrupt Chinese officials in Canada, and that if Mr. Chai had any information about them, he should call the agency". In her report, Dr. DeFreitas summarized Mr. Chai's description of his assigned "mission" this way:

…to look for corrupt officials and to bring them to the Chinese government's attention …[and]…"that when he left China, an anti-corruption official suggested that he call them if he detected any corrupt Chinese officials in Canada".

In his testimony, Mr. Chai gave the same description of his assigned mission. Describing his conversation with Mr. Chen in 2015, he testified "that official said, well, there's so many corrupt government officials in Canada if you find any you can just let us know". Asked what he understood he was supposed to do if he found one, Mr. Chai replied his instructions from Mr. Chan were to "just call the Chinese Embassy".

After Mr. Chai went on to testify his task was to find corrupt officials in Canada and counsel asked "and do what?", Mr. Chai replied "to get the corrupt officials, those people who are against the interest of China as a country and as – as an ethnicity". Counsel then asked "can you be more specific about what you ought to do?" In the context of the surrounding questions, it seemed as though counsel was attempting to elicit a description of the assigned mission that matched what Mr. Chai actually did. I am not sure if that is so, but either way, Mr. Chai never described his assigned mission as one involving the forcible apprehension and delivery of corrupt officials along with whatever proceeds of their crimes he could recover.

Consistent with this characterization of the assigned "mission", when was asked with reference to the Spring/Summer of 2016 "did you prepare yourself at all in buying anything to help you locate these officials or actually capture them?" Mr. Chai replied "I didn't prepare myself in buying anything for chasing after the corrupt government official because when we talk about it's when – if I find any clues, any hints as to where the corrupt Chinese officials are I – I should be calling and inform them".

Shortly after he gave that answer, Mr. Chai was asked about his acquisition in 2016 of a firearms permit and purchase of a handgun. Mr. Chai testified he got the permit largely out of curiosity because guns are banned in China and he was also interested in hunting with his friend Mr. Ding who had told him he would take him along bear hunting if he got his license.

Acknowledging that handguns are of little use in bear hunting, the defendant went on to relate how he had purchased the handgun for self defence because there were people watching him. Asked to elaborate, he testified that his neighbours seemed to be stalking him and described an incident in the summer of 2016 which he had been firing an air gun in his backyard two or three times only to have the neighbours called the police on him. He testified "after I explained the matter to the police there is no problem, but I thought it was broad daylight and it's not making a lot of noise, if it were not for someone was watching me how could that person know that I was using such a gun"; he had always been very cautious and careful about people stalking him even back in China, he added, because there were "occasions where I felt people were stalking me…it's not an impression, but a matter of fact because I kept getting promotions and so a lot of people wants to find out, wants to discuss about my investments et cetera and then when I – very often when I asked them why are you talking about this they would deny it, but I believe – I believe these people were talking about me, they were trying to find out my investment plan."

Asked why people might be stalking him in Canada he replied "I think number one is I'm a newcomer, so they wanted to know about me more. Secondly, that I was often driving my car in areas populated by Chinese, is it perhaps they were thinking whether I was looking for something and that's also the reason why later on a rented car because each time you would get a different vehicle."

Importantly, in his testimony before me, Mr. Chai specifically denied that he had purchased the handgun with any idea of using it to apprehend corrupt officials in mind. I will return presently to Mr. Chai's evolving testimony and other conflicting statements in relation to the gun purchase.

Mr. Chai's Claim that the Kidnapping was Unplanned

Thematically related to Mr. Chai's benign description of his assigned "mission", he testified that his activities on January 17, 2017, started out as a continuation of his thus far desultory progress in locating a corrupt official. Consistent with the "investigate and report" description of his assigned mission, Mr. Chai told Dr. Rootenberg in the initial assessment interviews that he had been "walking in that community and saw the Audi in his driveway and saw him driving it away from his house, 'I wanted to go into his house to investigate, and I found that his front door was unlocked so I decided to go in and gather evidence'. Mr. Chai stated that he did not know who would be inside; when he entered the home, he saw a woman sitting on a couch in the living room. He was surprised to find someone there and pulled out his gun and told her to lie on the ground, which she did. He had brought handcuffs with him as he was on a 'mission', and he handcuffed her."

Consistent with Mr. Chai's assertion that the forcible confinement, robbery and kidnapping was entirely unplanned, Dr. Rootenberg gave this summary of what Mr. Chai told him when asked what happened after he left 14 Library Lane with Mr. Wei: "'I only had this new plan for a very short time, so I gave him 3 days to give me the money. I thought I could take the man to the Chinese Consulate in Ottawa, so I asked the woman to get more clothes for her husband, and some blankets and a jacket for him, and put them in the car I rented'."

Similarly, Dr. DeFreitas summarized this aspect of Mr. Chai's account this way:

Mr. Chai stated that he first saw the victim, Mr. Wei, on the day of the index offences. The victim attracted his attention because he was an older man driving in Audi, which Mr. Chai associated with being a corrupt official. He then decided to go into the victim's home to investigate, and entered through an unlocked front door. He indicated that once there, he searched the home as well as the victim's cell phone, and found evidence of corruption. He indicated that he had originally planned to simply contact the Chinese embassy to inform them about the victim. However, when he saw evidence of large financial transactions on the victim's cell phone, he became "angry", and decided at that point that he would try to get money from the victim to return to the Chinese government. He indicated that his actions thereafter were in the service of obtaining money from the victim in order to give to the Chinese government, and that his plan after he received the money had been to take the victim to the Chinese embassy in Ottawa and to turn both him and the money over to the Chinese government.

When counsel asked Mr. Chai "now, again, your purpose for entering into the house at 14 Library Lane was what?", Mr. Chai replied "so, like I said I saw an Asian person driving an Audi away, so I want to confirm whether the person is Chinese and that's why I walked around the house and then at the very last moment I saw the door, I was – I was trying out the door, but it wasn't locked and so I thought there is no one and so I entered to take a look." Asked why he wanted to take a look inside the house, Mr. Chai replied "to see if I have any other evidence to show that this family or this person is a corrupt government official." At an earlier point during the examination in-chief, Mr. Chai testified:

So, I went in the lights were not on, it was quite dark and when I walked across the living room I heard that there's a lady sitting on the couch and I was shocked, I thought there was no one at home and so I told her don't move and lie down and then I cuffed her.

In cross-examination, Mr. Chai agreed that his overall plan on January 17, 2017, was to try and find and if possible investigate a corrupt Chinese official and when he was asked to confirm that on entering the house "the only thing in [his] mind was to collect evidence, documents and take it out of the house", Mr. Chai replied:

To be honest with you, to enter the home that was unplanned because it just so happened the door was unlocked. So, all of these actions, were adapted according to the premise that I am looking for corrupt officials. For instance, if I were to not have seen the female, and I had entered into the study and saw some of the documents, then it's possible for me to be taking pictures, or also possible for me to wait for them to come home.

Inconsistency with Acts in Preparation

The proposition that Mr. Chai never planned to kidnap Mr. Wei on January 17, 2017, and did not enter 14 Library Lane intending to do anything more than gather evidence is belied by the evidence that he had prepared in advance to do exactly what he did to and by the specific nature of his actions after he entered 14 Library Lane.

The Gun, Handcuffs and Mask

Up until the point in his testimony where he described events immediately entering 14 Library Lane and being "shocked" to find Ms Wu there, Mr. Chai had seemingly been at pains to leave no room for misunderstanding that the confinement and kidnapping were entirely unexpected and unplanned. Nothing in his description of either his "mission" generally or his plans for that day up to that point in his testimony suggested he had contemplated the possibility that he would carry out what he began calling the "arrest" of a corrupt official much less a kidnapping for ransom.

I have already mentioned that Mr. Chai specifically denied purchasing the handgun intending to use it in connection with his "mission". When Mr. Chai was asked "when you eventually entered into the house why did you enter into the house having in your possession handcuffs and a gun?", he replied "after I purchased the handgun I went with the store clerk to practice gun shooting and then the store outside of the shooting range they – they sell outdoor accessories, but also handcuffs. And so, purchased it, I thought if I were to get a corrupted official and the person tries escape then I would use the cuffs on him. As for the gun the concern was that the corrupt official might fight back and so with the gun I could scare him."

Mr. Chai then explained that he had brought a small bag with a number of items in it including a police badge that his son had used for Halloween. He thought that if he needed to question people he might build a pass himself off as an officer and "really that gun was normally in the same bag and that's pretty much it, there's not much other stuff." Asked if there was anything else in the bag that he had not told the court about, Mr. Chai responded that he did not remember.

The fact that Mr. Chai had brought a gun and handcuffs came across in his testimony almost as an afterthought, a serendipitous circumstance that allowed him to respond effectively to the unexpected surprise of finding himself right in the lair of the corrupt official and to be presented with an opportunity not only to "arrest" the official but also to recover stolen funds by kidnapping him and extorting a ransom payment.

I am also troubled by inconsistencies across Mr. Chai's various accounts in relation to the handgun. According to Dr. Rootenberg, when the topic came up in one of the initial assessment interviews, Mr. Chai indicated the purchase "was his own idea – 'I like shooting, and also wanted to scare the corrupt officials when I arrested them'". In her report, Dr. DeFreitas provided the following summary of Mr. Chai's response when she raised the issue with him:

When asked about the gun, he stated "I needed to bring my gun" on the day of the index offenses because he was going to look for corrupt officials. He stated that he feared that the corrupt officials might attack him, and that if he had a gun, he could "threaten" them and so protect himself. When asked why he first purchased a gun, he indicated that he had practiced shooting guns in China, and wanted his own gun because he had found them to be "mysterious". He initially bought the gun to shoot at a gun range "for fun". He indicated that he took the gun out with him "many, many times" while looking for corrupt officials. He said that he would keep the gun in a holster on his body, but added that it was not loaded so that he could not accidentally shoot himself. He indicated that he had known at the time that it was illegal to carry a gun in this manner, but said "But I felt powerful".

In cross-examination Mr. Chai was asked several questions on the theme of whether he had been told or trained by Mr. Chen or anyone else anyone at the Anti-Corruption Bureau to do anything like what he did at 14 Library Lane. Mr. Chai's answers included the following highlights:

• "Searching of the home it's the rights of people like me who are part of law enforcement, and so, all these equipment that I had with me those are just basic equipment and that's part of the law enforcement."

• "It doesn't need to be taught, that's the right of the law enforcement agency."

• "I am a law enforcement agent, I'm entering to do a search. I don't know how Canada teaches its police, do you even have rules and regulations for even before you enter and open the door. But in my mind since I am trying to enforce the law, every action that will allow me to find evidences against criminals and if I found them it means my mission was successful."

• "Now, I saw some drama on TV with police, so police might enter into a place to do a search and they might find something, but they might not, and they come out and that's why I think there is nothing wrong for me to enter and conduct a search."

• "As for the gun and cuffs I think as an agent for law enforcements it's standard for me to have them with me just in case – just in case there is resistance from the corrupt officials and I need them for self-defense."

The fact Mr. Chai equipped himself with the gun, handcuffs and a mask in the absence of any real explanation regarding the shift from a mission to gather and deliver into a mission to forcibly apprehend and deliver undermines my faith in the sincerity of his overall account as do the inconsistencies in what the defendant has said about his reasons for purchasing the handgun.

More particularly, the manner in which he has dealt with this issue both in speaking to the psychiatrists and in his testimony strikes me as an unconvincing attempt to gloss over the contradiction between his assertion that the kidnapping was unplanned and the fact that he came armed and otherwise readied to execute a kidnapping.

Moreover, quite apart from the fact he came equipped, Mr. Chai's claim that he entered 14 Library Lane thinking he would be looking for documents and simply adjusted on the fly upon discovering to his "shock" that Ms Wu was there is untenable when examined against the evidence of his specific actions immediately after entering 14 Library Lane.

According to Ms Wu, she was lying on the couch when she heard someone come in the front door; thinking it was her husband, she called out and then looked up by which time Mr. Chai was walking quickly towards her, masked, pointing the handgun at her while telling her he was there to rob her and ordering her to the ground face down, hands behind her back. Then, without the slightest hesitation, Mr. Chai handcuffed her and directed her to tell him where the passports were. From the very moment he entered, Mr. Chai was confident and effective in quickly assuming control and issuing commands. As Mr. Neuberger submitted, Mr. Chai has no criminal record or history of antisocial behaviour, no experience with such matters. While I agree this makes his decision to engage in this particular conduct puzzling, I am equally puzzled as to how Mr. Chai could so skilfully execute what in another context might be described as a "dynamic entry" unless he entered knowing that was what he was going to do.

Mr. Chai also never explained why he was "shocked" to find Ms Wu in the house. It is important to remember that Mr. Chai was generally lucid and logical in his description of his actions and beliefs. He was very clear that he had no information about 14 Library Lane until he happened to drive by and see Mr. Wei put the golf clubs in the Audi and drive off. Why, only minutes later, would he assume the house is empty?

More importantly, however, Mr. Chai's claim that he was taken by surprise is simply implausible given the fact that within second of entering he was masked, pointing a gun and issuing orders to Ms Wu. The far greater likelihood is that Mr. Chai entered intending to do exactly what he did.

The Rope

Ms Wu was very clear that the rope Mr. Chai used to tie her up came out of his bag and, in any event, the rope in question did not come from their house. I note that a quantity of rope was found on Mr. Chai's kitchen counter when police searched his house after arresting him and photographs were entered as exhibits. One piece of rope show signs of having been severed, consistent with Mr. Wei's account of how Mr. Chai cut him free with the cleaver just before they left 14 Library Lane; another long section of rope was either still unspooled post-purchase or skilfully re-spooled by Mr. Chai. Ms Wu would have known if rope like that depicted in the photographs had been in her home prior to these events and I have no difficulty accepting her evidence that Mr. Chai must have brought the rope with him.

Mr. Chai did not mention the rope when asked in-chief to describe the contents of the bag he had brought to 14 Library Lane. When asked if there was anything in the bag that he had not mentioned, he replied he could not recall.

The fact that Mr. Chai brought a significant quantity of rope of the length and thickness perfectly suited for binding adults to chairs is difficult to reconcile with either his professed intention of simply gathering documents and leaving or with his more general claim that the kidnapping was unplanned. Mr. Chai's explanation for bringing the handgun and handcuffs, i.e. that they are "basic equipment" that "as an agent for law enforcements it's standard for me to have them with me just in case", certainly does not apply to the quantities of rope he brought. At the same time the nature and quantity of the rope Mr. Chai brought is just what I would expect him to bring if what he in fact did inside 14 Library Lane was planned in advance.

The fact that Mr. Chai brought a significant quantity of perfectly suited rope with him to 14 Library Lane detracts from the credibility of his account. This is compounded by the fact that Mr. Chai evidently misled Dr. Rootenberg on this point. In his first report, Dr. Rootenberg wrote:

Mr. Chai asked who also resided in the house, and the woman advised that she lived there with her husband, who had gone out earlier. He then reportedly took her to a washroom in the basement and tied her to a chair using a rope (he denied bringing the rope with him, stating it was in the home).

The Gravol

Another sign that Mr. Chai planned the kidnapping in advance of the fact that he brought blister packages of Gravol with him and forced Mr. Wei to take three of the tablets before they left.

In his first report, Dr. Rootenberg wrote "Mr. Chai further noted that he gave the male victim medication as he did not want him to become dizzy: 'My kids always get dizzy while driving, so I keep some medicine in the car, red and white tablets, I don't know what it's called'. Mr. Chai gave this medication to the male victim, stating, "I made him eat it, he didn't know what it was for."

When Mr. Chai was asked in-chief if he "gave [Mr. Wei] any type of pills" he gave this reply:

So, before we left I gave him three pills, those are pills for motion sickness and these pills were originally for my kids, but I had brought them because I thought if we're going to Ottawa it's a long trip and... Yeah, so I was thinking if I were to get a corrupt official then going to Ottawa is a long way and I'm concerned that the official might get motion sickness and so I gave three of them to him.

This evidence is also inconsistent with Mr. Chai's claim that the kidnapping was unplanned. A receipt for the Gravol found when police searched Mr. Chai's vehicle parked at Pacific Mall indicates he purchased it the morning of January 16, 2017. Blister packs of Gravol with three missing were found in the console of the rental vehicle. Gravol is a well-known over-the-counter medication for nausea, including car sickness, with the well-known side effect of causing drowsiness (which may explain why Mr. Wei fell asleep for a portion of the drive). While it is true that many parents keep Gravol in the car to give to children for long car trips, this Gravol is not labelled as children's Gravol.

Mr. Chai evidently misled Dr. Rootenberg about taking the Gravol from his own car because the receipt itself demonstrates he had purchased it the day before. Mr. Chai clearly contemplated the possibility he would have to administer Gravol long before he arrived at 14 Library Lane.

Equally troubling is his assertion during his testimony that he had brought it "because I thought if we're going to Ottawa it's a long trip and... Yeah, so I was thinking if I were to get a corrupt official then going to Ottawa is a long way and I'm concerned that the official might get motion sickness and so I gave three of them to him". This directly contradicts his own testimony that the plan to take the corrupt official to Ottawa only arose after he was inside 14 Library Lane and had determined Mr. Wei was a corrupt official.

As with the rope, both the fact that he brought it and used in the way he did and the fact his apparent efforts to mislead on the point significantly detracts from his credibility.

Ms Tong's Evidence that Mr. Chai Told her he Might be Away

Fenfang Tong testified that at some point in November or December, 2016, Mr. Chai had notified her "in a general way" that at some point he was going to be attending a competition at the casino and if he lost he would be home right away but if he was winning he would need to be away for a few days. He was not specific about when this would happen. The weekend before the kidnapping, Ms Tong testified, she recalled him saying something about going to the competition that left her with the "impression that he's – he's going to a competition and if he is winning that he'll be away for a bit."

Ms Tong could not remember anything out of the ordinary taking place on Monday, January 16, but Tuesday, January 17 stood out more clearly for her because that was the last day she saw her husband before his arrest. During breakfast that morning, he told her that he was going to the YMCA and then "maybe he'll go to the casino to participate in a competition and if he won that it will take some time to come back, if he lost he will come home right away, don't worry about him."

On the morning of Wednesday, January 18, Mr. Chai, who had obviously not come home that night, called and told Ms Tong that he had won the competition and he will need a few more days. He told her he had somehow won or otherwise obtained a $1300 hotel credit which could be applied to a stay at Great Wolf Lodge in Niagara and encouraged her to take their sons there for a few days which she did, leaving that day at noon. The conversation was short but she attributed that to him being preoccupied with the gambling competition.

Neither Dr. Rootenberg nor Dr. Pallandi seem to consider this detail significant, but it was not lost on Dr. DeFreitas. After noting Mr. Chai had indicated "his original plan had been to call the Chinese embassy and ask them to come here to get the corrupt official" and that his plan only changed when he saw Mr. Wei's financial transactions, she evidently confronted Mr. Chai with evidence that he had left the house that morning knowing that he would be away:

He acknowledged telling his wife that he was going to a competition at the casino for a few days. He indicated that he did this in order to explain his absence, stating that his real plan had been to go to Ottawa with the corrupt official. When asked how he could have known that he would find a corrupt official that day, he indicated that he told his wife this via cell phone on the 18th, after he had already abducted the man. When told his wife and reported that this conversation taken place in person on the morning of the 17th, he said "my wife made a mistake".

I find that Fenfang Tong was both credible and reliable in this aspect of her testimony. She had good reason to remember both the content and the timing of that conversation because, as she put it herself, "ever since he mentioned that he would go for the competition on that morning than – than I haven't met him..." I recall the tone in which she gave this evidence and it was clear that she was referring to the fact that that was the last time she'd seen her husband out of custody.

This evidence and in particular Mr. Chai's assertion to Dr. DeFreitas that he told his wife this "in order to explain his absence, stating that his real plan had been to go to Ottawa with the corrupt official" and subsequent attempt to explain the contradiction by stating that his wife had the date wrong, undermines his credibility. While it is true that he mentioned the possibility of being away at some earlier time, this does not detract from the fact that he specifically told Dr. DeFreitas he had used this explanation on January 18 when "his real plan had been to go to Ottawa with the corrupt official". This suggests, of course, that "the real plan" already existed by the morning of January 17, 2017.

Inconsistency with Other Evidence

Possibility Mr. Chai had One or More Accomplices

Mr. Chai has consistently denied that anyone else was involved with or aware of his "mission" to capture corrupt Chinese officials or, more specifically, his commission of the charged offences. The involvement of one or more accomplices would reduce the likelihood that Mr. Chai committed these offences for the reason he says he committed them, probably to the vanishing point.

In examination in-chief, Ms Wu gave this evidence:

Q. Okay, Ms Wu, I'd like to ask you some questions – some details, okay? Up to this point, from the time he entered the house until he's tied you up downstairs, did you see any other people with him in the house?

A. I didn't see anybody else. But when he was taking his bag from outside, he say something towards outside. He say, "You stay here". So I wasn't very sure whether there was one person outside.

Q. Did you see anyone outside?

A. I didn't see.

Here, Ms Wu was referring to the point when Mr. Chai retrieved his bag from outside the front door while marching her to the basement from the upstairs study. Ms Wu also testified that at some point after she had been bound and gagged in the basement but before her husband returned home, she heard the defendant say as if he was talking to someone, "the husband is about to come back. The two of you stay away, and keep an eye on it."

Bennett Wei testified that at some point after he was bound and gagged in the basement, he heard the defendant upstairs saying "you two keep a good lookout", again, as if he were speaking to confederates.

When, while they were still at 14 Library Lane, the defendant mentioned that he would require $2 million ransom and Mr. Wei said he did not have access to that amount of money, Mr. Chai replied that he would have to go speak to his boss. When he returned downstairs again he told Mr. Wei that $1.5 million would be sufficient. Mr. Chai also made other references to bosses over the next two days.

Ms Wu and Mr. Wei both struck me as careful, fair and sincere witnesses. Importantly, neither was challenged about this aspect of their testimony in cross-examination. I accept their evidence as to what they heard Mr. Chai say.

Although there is reference in Dr. DeFreitas's report to Mr. Chai denying that he ever spoke of having to speak to a boss when negotiating with Mr. Wei, I did not hear testimony from Mr. Chai directly responding to Ms Wu's and Mr. Wei's testimony on this point. When he was asked if he had any accomplices working with him, he replied "well, I have been working alone all this time, but I believe there are many other people who have worked under the Anti-Corruption Bureau around the world whose – who are doing the same things that I'm doing now."

In his second report, Dr. Rootenberg asked Mr. Chai about this and gave this summary of his response:

Regarding "pretending to speak to other suspects upstairs", Mr. Chai stated, "their home phone was ringing, so I picked it up and just hung up, I didn't pretend anyone else was there". He was asked if there is anyone else with him when he went to the victim's home, and he adamantly denied the above. He advised he initially planned to take the victim to the Chinese embassy, but later changed his mind. "A very famous corrupt Chinese official escaped to Canada and brought a lot of money. The Canadian government did not want to return the money to China. So I decided to get the money from the victim and give it to the Chinese government.

It is not clear to me why Dr. Rootenberg apparently assumed the utterances were manifestations of the defendant "pretending to speak to other suspects". It would not have surprised me if Mr. Chai had testified that he deliberately pretended to have confederates to confuse Mr. Wei and Ms Wu or to make himself appear more powerful. But he did not give that evidence. According to Dr. De Freitas, Mr. Chai "denied having told the victim that he worked for a large criminal organization. He denied that he told the victim that he was working with someone that he referred to as his "boss". He denied that he had any accomplices."

Mr. Wei also testified that when Mr. Chai stopped at Pacific Mall he walked some distance from the car and had a conversation with someone in Mandarin. Shortly after that Mr. Wei was able to see a man – he presumed the man that Mr. Chai had been speaking to – look in at him through a small gap in the back window which was about 20 cm from his feet. Mr. Wei testified this man was taller than Mr. Chai and had noticeably longer hair. He then heard the trunk of the car he was in opening and it sounded to him as though Mr. Chai on the other man were moving things back and forth between two cars. Mr. Chai denies that anyone else was there.

Mr. Wei was challenged about this in cross-examination, but in my view he withstood that challenge. He was quite clear that although he only had a limited opportunity to see Mr. Chai with his mask off he could tell that he had short hair (which other evidence regarding Mr. Chai's appearance at the time confirms) and that although his vision while making these observations at Pacific Mall was partly obscured by his hat, he was able to clearly see that the man looking at him had long hair. Mr. Wei was also clear that he heard Mr. Chai have a conversation with someone in Mandarin a conversation between two people in Mandarin shortly before he saw the man looking at him. Mr. Wei's evidence about the conversation was not challenged. The concerns about reliability of what he saw does not apply to what he heard, albeit that conversation was sufficiently far away from where he lay that he could not make out what was being said, just that Mr. Chai was speaking to someone in Mandarin.

I am certainly satisfied that Mr. Wei's evidence on this point was credible, but I recognize neither that nor his certainty addresses all concerns about whether his observations were reliable. It is possible, for example, Mr. Chai was speaking on the phone (although he did not give that testimony) and that Mr. Wei incorrectly perceived the man who looked in on him was someone other than Mr. Chai. It is also possible he pretended to speak to confederates and, for whatever reason, perhaps a function of his memory issues or mental disorder, he did not give that evidence.

I need not decide whether this evidence establishes the defendant likely had one or more accomplices – in the context of the evidence as a whole I am inclined to think it does not go quite that far – but it certainly does elevate the accomplice theory above the status of mere supposition and increases the overall likelihood that Mr. Chai's motive for committing these offences was other than the one he has reported.

Expressions of Remorse and Shame Post-Arrest

Statement to DC Koshandish

Starting at approximately 1:40 AM, January 20, 2017, after Mr. Chai had spoken to Mandarin-speaking duty counsel, DC Shawn Koshandish interviewed him with the assistance of PC Nick Yun, a Mandarin speaking officer. A transcript of the interview was later reviewed by an accredited Mandarin interpreter who made a number of corrections to the translation; the parties agree the amended transcript is a correct Mandarin-to-English interpretation of the statement.

Before DC Koshandish had asked even a single question, the defendant stated "I'm so sorry that it's so late and I did these bad things so that make you guys come here to see me" and asked the officer to explain "what kind of a process will happen to the person like me that I made this kind of big mistake…" When the officer asked the defendant where his wife and kids were, Mr. Chai stated "because I made a mistake I hope that they can go back to China as soon as possible because they cannot stay here any longer". After brief discussion about when his family could get back into 18 Gemini Crescent, Mr. Chai said:

"Sorry. And I just want to tell little bit about my feeling… I did these bad things and this very – it's not good. My wife, she didn't know so, and my wife, she would be very sad and the surprise because I have my proper job – career back in China. I have that. Can I have an opportunity, just, – I can – I can call my wife to apologize and, explain, what I did, tomorrow before she returns?… And they did this things and she felt she might feel very sad and… I don't want her worried about the, all – all these concerns about this, about me.

The defendant was crying by this point, and added "because, I don't, I – I'd be really concerned about my two sons… And my parents; they're over – they are in their 70s and, they raise me to…this day and I did this bad thing...and I, I – I – I don't (inaudible) and, I don't even want to live, and I want to just call them to say sorry." When the officer replied "Okay. Okay. Charlie, I understand that you're very upset and – and – and the reason why, I believe, that you're very upset is because you are very good person who's – who's made a mistake", Mr. Chai responded "no, I am not a good person. I have done such a bad thing."

The interview continued in this fashion. When the officer eventually started directly asking Mr. Chai why he committed the offences and whether anyone else was involved, the defendant steadfastly rebuffed those efforts, sometimes by sharing his feelings of remorse, other times by telling the officer he would tell his story to the prosecutor and/or judge and other times by simply changing the subject back to his request that the officers contact his wife, his questions about the legal process or things he had seen in crime shows and movies. His expressions of remorse included the following:

• "I'm sorry that I have wasted a lot of your time…I just want them [his family] to stay somewhere else and to go back to China as soon as possible…[and not to] bother about me and I will deal with my matter by myself, don't let my son know what happen... If – if – if – if I'm a criminal and as a – as a man and – and if – if I'm a criminal and, that, I hope you understand as a father, as a man, I – even like the – my wife may be feels, the – the – hopeless. Maybe feel the surprise but she is grown-up; but I don't want my sons to know this";

• "just tell her [his wife] that I did something very bad…just – just tell her that I did a bad thing and don't come home, today or tomorrow…try to get a flight ticket to go back to China as soon as possible. Take the sons to go back to China do not come back to Canada. And then I will tell you everything, and I get punished because that's no problem… For me to stay here to get punishment";

• "yes, I know I have committed an offence, therefore you have to ask me all these questions…can you make this phone call [to his wife] for me? And I know that the – as a criminal – and I know I am, really selfish now";

• "like I said earlier, I have done wrong, I will admit; if I am sentenced, I take it; the only concern I have is my sons, they are not affected…[regarding his sons finding out what he did] "their father is a bad guy…[if they find out what I have done I] definitely won't be living in this world, believe me"

• "I did the, the – the crime, I need the punishment"

The only expression of remorse even arguably limited to the beating was Mr. Chai's admission "it's not right for me to hit the hostage" in the following exchange:

Mr. Chai: The hostage got hurt I got hurt. And, uh, he hit my eye. Even - even though I did the bad thing. And even I deserve it, the - the - the police should not hit me. You hit me and I end up like this. I've been bleeding whole night.

Officer: So, Charlie - Charlie, when you - when you had the hostage in a bathtub, where were you?

A: I've already said it. It's not right for me to hit the hostage. So, the - all your questions - the, uh – the - the, uh - all your questions, you got all the - all the, uh - the questions you know, I, uh, received from Mr. Wei yesterday.

Q. How - how do you know Mr. Wei?

A. The name of the hostage? Sure, I know the name of the hostage because he was found in my house.

Q. How do you know him?

A. Next question.

This is at least as much a complaint about his injury as an expression of remorse. In any event, it is understandable that Mr. Chai would link his perception that he had been roughly handled to his pistol-beating of Mr. Wei. Both drew blood and caused physical injury.

Read in the context of both the immediate exchange and the three and a half hour interview as a whole, Mr. Chai's admission "it's not right for me to hit the hostage" cannot plausibly be interpreted as limiting his many other more general and unqualified expressions of remorse to this specific action. At an earlier point in the interview, after Mr. Chai had stated "I will tell all… I made a mistake – and I admit – I admit it", DC Koshandish asked Mr. Chai what he was admitting to. Mr. Chai replied "I made a lot of mistakes". When the officer commented "I don't think you are a criminal. You're not a criminal. You're not a criminal" the defendant replied "I am…. the hostage is in my house and, it's the truth." It is clear that Mr. Chai's expressions of remorse and shame related to the kidnapping even if he also felt more specific remorse about the beating.

I note that Mr. Chai's use of the word "hostage" is not a neutral factor in my assessment. In cross-examination it was established that Mr. Chai knew exactly what the word "hostage" – as opposed to, say, "prisoner" – means. I reject the explanation he gave in cross-examination that he was simply parroting the officer's choice of words or attempting to correct the translator's misinterpretation of "the hostage was found in my house" as "I brought the hostage in my house" (this particular assertion, I note, is inconsistent with the corrected Mandarin interpretation of the statement which the parties agree is accurate). At the very minimum, Mr. Chai's use of the word hostage signifies that his accompanying expressions of remorse and shame related to the whole course of events, most notably the kidnapping, and not just the pistol beating.

Apart from some difficulty controlling his emotions, i.e. his feeling of shame and remorse, Mr. Chai was clearly in control of the interview from beginning to end. Most of the interview was spent dealing with his questions and requests and it is clear Mr. Chai used the interview as a vehicle to pursue his own agenda, as he himself pointed out to the officer:

Mr. Chai: I'm the person who protect myself really well. And, you know that when you ask the, – me questions just now and you know that I can – I can - answer it right away.

Q. Yes. You protect yourself like how? What do you mean? I don't understand.

A. So – so, don't you think that I can protect myself well? Up till now, you are still asking the first question.

Q. In – in what – what – what context are we talking about?

A. Like, from – from the – the – until now, you're still asking the first questions about her reason.

Q. Mmhm. And that's true. That's – I'm not playing a game. What – I mean, (inaudible)…

Mr. Chai demonstrated a remarkable facility in brushing off the officer's many attempts to elicit an explanation for the offences. I do not mean this as a criticism – Mr. Chai was perfectly entitled to withhold his explanation. My point is that Mr. Chai was fully aware of what was going on and understood exactly why it was not in his interest to tell the officer what he wanted to know. When he was asked in cross-examination why he withheld his explanation during this interview, Mr. Chai gave this answer:

So, we have for few days within hearing the statement and I – I have mentioned to the police that before I met up with you I have – I have spoken with a Chinese speaking lawyer and the lawyer said that I should not speak with anyone on this case without the presence of a lawyer. That's one of the reason and a second reason is I believe the police officers at the time must have been misinformed by the wife of the corrupt official, so I did not know whether the officers were impartial because even police officers they are only human and they – they might also be motivated by benefits and so without being able to ascertain that the police officers are trustworthy I did not want to talk to them about anything.

Mr. Chai's decision not to share his explanation for committing the offences of the officer likely had much more to do with the first reason than the second, as is well illustrated by the following exchange during the interview itself:

Mr. Chai: You know why I don't want to tell you [why he kidnapped Mr. Wei]?

Q. No, I don't.

A. From what I understand, the police is to catch the criminals.

Q. Yes.

A. And find every reason to make sure that he, – he did the crime.

Q. Okay. Yes. It's…

A. It's not good to me.

Q. It's not good for you? Why is it not good for you?

A. The – what I was saying is that the – of the – all the job of the police is to catch the criminals and you find the hostage in my house. So, no matter what I will say, make the police to get more reason whether it is true or not, which is not benefit me. Make my – make police think I – my crimes – that I did the crime.

Irrespective of why he chose not to provide an explanation for his actions, Mr. Chai proved a resourceful and wily interview subject who was clearly alive to the officer's various stratagems for eliciting an account of his motivations and easily resisted them. Despite this, he consistently expressed feelings of remorse and shame in relation to his charges, his overall conduct and not just the specific instance of pistol beating Mr. Wei and was clearly highly emotional in doing so. In my view, this demonstrates that even if Mr. Chai had, before being caught, subjectively felt his "mission" and actions in furtherance of it were justified, he was clearly aware that his actions would be viewed as wrong by Canadian societal standards and that his expressions of remorse and shame flow directly from that awareness.

The Post-Arrest Utterances

Almost immediately after the ERU subdued Mr. Chai outside his home they began recording his utterances and continued to during the arrest process and while he was at the hospital. Included in Mr. Chai's many recorded were expressions of shame and embarrassment but also pain due to his eye injury and irrational utterances consistent with some degree of mental disturbance, including telling the police to "kill him, kill him".

Mr. Chai was asked about the latter towards the end of his examination in chief:

Q. Okay. I just have a few questions to ask you about when the police got you. When you were first arrested why were you telling the police kill me, kill me, kill me?

A. Because I – I thought I had struck such that he was – his head was bleeding and they had told the police and hitting another person is not right and because I wasn't able to control my emotions and I had ultimately failed this mission, which I was about to complete and so I was extremely disappointed at myself. And so, I guess you could say those are words of anger. It's very difficult to describe my emotions at the time.

Q. Why were you disappointed in yourself?

A. Because I wasn't able to control my emotions and I hit – I hit someone. Had I not hit the person I felt I would have completed the mission and to complete such a mission is a very honourable thing.

Q. Why is it an honourable thing?

A. Because I have contributed to my country and then for a person like me who had no experience at all I have accomplish an impossible mission.

Q. Did you want to complete your mission?

A. Of course.

Q. Why?

A. Well, this is my duty, my obligation and my rights.

Q. Why did you tell the police either when they had arrested you or later on when you were being interviewed that you were a criminal and that you would plead guilty?

A. Like I said, hitting people is not right, no matter what bad things they have done, you should not hit someone and even though I – I was quite certain that he's a corrupt official, but the punishment against him should be done by the embassy or the Chinese government.

In cross-examination, the defendant was referred to the audiotape of his interactions with the officers immediately after his arrest and also at the hospital which had been played in open court prior to his testimony. With reference to the many times that he had said words the effect of "Kill me, kill me, kill me" he agreed with the suggestion that at that time he was in excruciating pain due to his eye injury. During further cross-examination on this issue, which went on for some time partly due in part to challenges associated with Mandarin to English translation, the defendant variously took the position that he could not remember what he had been feeling and thinking at the time (although he did not dispute the recording played in court was accurate), acknowledging that he had linked his desire to die to his eye injury when speaking to the doctor and asserting that reacting in this way to the eye injury was a perfectly normal reaction.

When specifically asked if he had difficulty remembering what he was thinking back on January 19, he replied "my memory is always a problem for a long time, it's been deteriorating, so that's why I like to take notes and is not like my memory not good, only gates to a certain date". Ultimately, when the defendant was asked if he had truthfully expressed his feelings to the police and the doctor at the time, he replied:

My feeling was my feeling, but what I say was I was trying to ask that individual to do something. For example, I say to the lawyer that at that time my feeling was very complicated. Which including that my eye was very painful, and my head was severe headache – I had a severe headache and I almost couldn't see. Which was also included that my mandate could not be carried long, and then I had failed my mandate or duty, so including my feeling I was very depressed. And also, it was a negative impact to my children because I was arrested. And also, included that I couldn't call my parents or communicate with my parents during the Chinese New Year. However, when I had so many different kind of thought that there was no way that I could tell the police or express to the police. So, as a result which made me thinking that I would rather just to be killed, rather than living. That is why I continuously emphasized, kill me, kill me. This is what I can explain and what I can think why I had – why I made such a statement and what I was thinking at that time. So, I have now replied to your question I don't know whether you are satisfied with my reply.

I accept that a stew of thoughts likely roiled through Mr. Chai's mind in the aftermath of his arrest. While there were certainly signs of remorse and shame, many of the things Mr. Chai said are susceptible of more than one interpretation. Further, I accept Dr. Rootenberg's and Dr. Pallandi's view that Mr. Chai's utterances immediately after his arrest and in the hospital events a degree of mental disturbance that is noticeably absent by the time DC Koshandish interviewed him not long afterwards. I am less confident that the disturbance in question was exclusively related to delusional disorder; it is apparent to me that it had as much to do with the psychological trauma of being arrested as well as the physical pain that Mr. Chai was experiencing. In the final analysis, I do not draw too much from the postarrest utterances recording. It provides some support for the contention that Mr. Chai suffers from delusional disorder, which is not contentious in any event, that he felt some remorse, although the formal statement is far better evidence of this, and that he underwent pain and trauma in the course of his arrest. I regard it as much less likely that the utterances relate to feelings of shame over his failure to complete his mission.

Other Conduct

Mr. Chai acknowledged that he did not contact the Chinese Embassy when he believed he had found a corrupt official, not on January 17, not on January 18 and not on January 19, nor did he keep important evidence with him such as, for example, the laptops. His explanations for these and other actions he took inconsistent with his mission were not convincing. While it is possible these failings were the product of mental disturbance I regard it as more likely they reflected his priorities at the time which in turn undermines the credibility of his account.

The Expert Evidence on Knowledge of Wrongfulness

Introduction

Both Dr. Rootenberg and Dr. Pallandi felt Mr. Chai's delusional disorder impelled him to commit the offences and deprived him of the capacity to know his actions were wrong. In Dr. De Freitas' opinion, it did neither.

Legal Principles Governing my Assessment of the Expert Testimony

In assessing the expert evidence in this case I have instructed myself with the aid of the following helpful guidance Cronk JA recently provided in R v Richmond:

The appellant did not testify at trial or at his NCR hearing. The only medical evidence before the jury in support of his mental disorder defence was that of Dr. Klassen. But the jury was not obliged to accept Dr. Klassen's opinion that there was a strong circumstantial case for an NCR finding, even though his opinion was not contradicted by Crown expert evidence: R. v. Molodowic, R. v. Grandbois. Rather, the jury was entitled to assess the probative value of Dr. Klassen's evidence in the same manner as any other evidence. Further, in weighing Dr. Klassen's expert evidence, the jury was entitled to examine its factual foundations and to accord less weight to Dr. Klassen's opinion if it was not based on facts proven at trial, or where it was based on factual assumptions with which the jury disagreed: Molodowic, at para. 7.

Molodowic instructs that where there is expert opinion evidence that an accused is NCR, a reviewing court must consider whether there was a rational basis for rejecting it. Justice Huband of the Manitoba Court of Appeal, whose dissenting opinion was approved by the Supreme Court, explained that a rational basis for rejecting expert evidence may arise if there is some "discernible flaw" in the expert's reasoning or "because the opinion was formulated on too fragile a factual basis or because the opinion conflicts with inferences one might logically draw from other evidence": R. v. Molodowic.

In this case, the principles in the emphasized portions of the above passage figure prominently. A crucial consideration in evaluating the expert opinions was the extent to which the expert analysed the full body of evidence pertinent to Mr. Chai's state of mind at the time he committed the offences.

A closely related consideration was the chronology of the formation of the opinion relative to the expert's access to certain key information such as, for example, Mr. Chai's post-arrest utterances, formal police statement and trial testimony, as well as the extent to which the expert demonstrated the original opinion was reassessed with an open mind in the light of information later received.

Finally, Mr. Neuberger submitted that "Dr. DeFreitas' opinion is not based on any deep medical knowledge, but rather a simple exercise in logical thought". I agree, but would add that this observation applies equally to all three experts. In the final analysis, the result in this case turns on a careful assessment of the evidence which none of the experts did or, to be fair, were really in a position to do.

Dr. Rootenberg

Dr. Rootenberg's Opinion and Reports

Dr. Rootenberg delivered two NCR assessment reports, the first on July 16, 2017 ["first report"] and the second on May 16, 2018 ["second report"]. In advance of his first report he interviewed Mr. Chai on March 15 and April 13, 2017. After delivery of his first report, Dr. Rootenberg interviewed Mr. Chai a third time on October 17, 2017, approximately one month before the trial started, and this interview figured prominently in his second report. Dr. Rootenberg did not re-interview the defendant after he, Mr. Chai, had testified on November 30 and December 1, 2017. Dr. Rootenberg testified he was only provided with a transcript of the December 1 portion of the cross-examination the morning of the first day he testified, June 18, 2018.

Dr. Rootenberg delivered his first NCR assessment report ["first report"] on July 16, 2017 and in it he gave the following opinion in relation to the second branch of the s.16(1) NCR test:

With respect to the issue of Mr. Chai's knowledge of wrongfulness of his actions, in my opinion the key issue in determining criminal responsibility in this case, it is necessary to examine whether his behavior was governed by psychosis at the material time, or whether the symptoms were sufficiently severe or relevant to his conduct so as to negate the presumption of criminal responsibility.

An important consideration in the evaluation of an individual's criminal responsibility is how much weight to attach to his self-report regarding the circumstances in question; for example, were his actions motivated by self-interest, and/or was he upset/angry with the victims for any reason, despite his protestations to the contrary.

As in all forensic psychiatric examinations, it is necessary to consider the possibility that Mr. Chai is simply misrepresenting the truth, in claiming that his psychotic symptoms primarily influenced his behavior during the time period encompassing the index offence, i.e. considering the possibility of malingering of mental illness, or exaggerating the acuity of his symptoms. It is important to note, however, that Mr. Chai has consistently denied the presence of a major mental illness, has not attempted to mitigate his behavior or externalize blame onto any other individuals, and has denied having any psychotic symptoms at all, other than possibly hearing voices at some point in the past, prior to the events in question.

Given the circumstances of this case, I have attempted to articulate the factors which I believe both support and weaken Mr. Chai's ability to know the wrongfulness of his actions:

Factors more supportive of an NCR defence include the following:

• Mr. Chai suffers from a bona fide major mental illness that was present well in advance of the index offence, when he lived in China, and was present during the material time as well.

• Potentially relevant symptoms as reported by Mr. Chai, including paranoid delusional beliefs that he was on a "mission" to find corrupt Chinese officials in Canada, leading him to justify entering a stranger's home to find evidence of such "corruption"; using a weapon; forcibly confining the victims; and then removing the victim from his home, as described earlier in this report, were operative during the material time period. He also believed that he was entirely justified in seeking financial compensation from the Chinese government as he believed he was working for them. He also planned to deliver the male victim to the Chinese Consulate in Ottawa, and ensure the return of all funds that were "fraudulently" taken from China, and he viewed these steps as part of his overall "mission".

Factors less supportive of an NCR defence include the following:

• Mr. Chai's statements to investigating police officers shortly after the commission of the index offence that the authorities should kill him, suggest possible knowledge of the wrongfulness of his actions.

• The possibility that Mr. Chai simply acted out of anger towards the victim for some perceived transgression directed towards him (although the available information indicates that they were not acquainted).

It is worth pointing out, however, that the presence of these "less supportive" factors does not mean they are mutually exclusive with an NCR defence; individuals may be unaware of the wrongfulness of their actions while committing an offence, yet within a very short time frame can become aware that they have carried out certain actions, and then call 911 to report what transpired, or clean up the scene, or inform others about what they have done.

Overall, upon consideration of all of these factors, and based upon my clinical assessment and information made available to me at the time of the preparation of this report, it appears that Mr. Chai was experiencing psychotic symptoms during the material time as described above. In my clinical psychiatric opinion, the clinical evidence suggests that he did not know the wrongfulness of his behavior, and was likely suffering from an exacerbation of his major mental illness, manifested by delusions and paranoia, which led to impaired judgment and behavioral dyscontrol, culminating in the events in question. His behavior was not influenced by alcohol or illicit substances of any kind, according to the information made available to me.

In my opinion, although Mr. Chai likely appreciated the nature and quality of his actions at the material time, he was unable to know that they were wrong, particularly in the moral sense, and was therefore unable to conform his conduct. During the material time, his mental state was sufficiently thought disordered that he was unable to rationally consider whether his actions were right or wrong in a way most people would ordinarily be able to do.

Accordingly, in my psychiatric opinion, Mr. Chai was not criminally responsible due to a mental disorder with respect to the incident that occurred on January 17, 2017.

Dr. Rootenberg arrived at this opinion before the trial started and without reviewing the following important material:

i. the recording of Mr. Chai's post-arrest utterances;

ii. Mr. Chai's police statement; and,

iii. the transcripts and/or audio recordings of the intercepted communications.

When he delivered his first report, Dr. Rootenberg knew the above material existed, but he did not request to see it before reaching his conclusion that Mr. Chai's delusional disorder rendered him incapable of knowing his actions were wrong.

By the time he conducted his third and final clinical interview of Mr. Chai, on October 17, 2017, Dr. Rootenberg had been provided with some of the missing material and it generated a number of questions relevant to assessing the credibility of Mr. Chai's self-report. Dr. Rootenberg asked the defendant about a number of those matters during the third interview, and those questions and answers are summarized in Dr. Rootenberg's second report in which he also stated the following about his original NCR opinion:

After reviewing all of the above documentation that was provided to me, and after meeting with Mr. Chai again on October 16, 2017, the opinions expressed in my assessment report dated July 16, 2017 remain unchanged:

Specifically, Mr. Chai meets diagnostic criteria for a major mental illness, namely Delusional Disorder, Persecutory Type, the essential features of which were described in my original report, and this illness was operative during the time period encompassing the index offences. He also appears to have met criteria historically for Alcohol Use Disorder, which is now in remission in a controlled environment. He does not meet criteria for a personality disorder of any kind.

It should also be noted that based upon psychological assessment conducted at Ontario Shores Centre for Mental Health Sciences, although Dr. Leong was unable to administer any specific tools to address the issue of malingering as they were not available in Mandarin, overall she did not have any concerns about malingering with respect to Mr. Chai. Rather than attempting to embellish or exaggerate his symptoms, he actually downplayed the possibility that he has a mental illness of any kind, which is entirely consistent with my clinical impressions during my assessment of him.

Specific examples of Mr. Chai's psychotic symptoms during the material time period were elaborated upon in my July 16, 2017 report, namely delusional and paranoid beliefs; at the time of the index offence, Mr. Chai firmly believed that he was working for the Chinese government and was on a secret mission to find corrupt Chinese officials in Canada, and then report them to the Chinese authorities; he still maintains these delusional beliefs, and feels that his actions were entirely justified, as he felt it was his duty to investigate and report the behavior of Chinese individuals whom he believed were engaged in "corrupt" activities. He also believed that he would be rewarded for these activities in the form of financial compensation from the Chinese government.

After reviewing the additional documentation and after meeting with Mr. Chai in October 2017 to discuss this additional material with him, it remains my clinical psychiatric opinion that Mr. Chai has a defence of not criminally responsible due to a mental disorder available to him, with respect to the incident that occurred on January 17, 2017. During the material time, he was suffering from a mental disorder that rendered him incapable of knowing that his actions were wrong, from a moral perspective. Such a determination, however, is necessarily deferred to the trier of fact.

Dr. Rootenberg maintained this opinion when he testified in June, 2018.

My Reasons for Rejecting Dr. Rootenberg's Opinion Evidence

I reject Dr. Rootenberg's opinion that Mr. Chai was rendered incapable of knowing his actions were wrong. Dr. Rootenberg delivered that opinion in his first report dated July 16, 2017, without reviewing a substantial body of information tending to cast doubt on Mr. Chai's account of his state of mind at the time he committed the offences. Nothing in Dr. Rootenberg's second report or testimony convinced me that he ever reassessed his original opinion, and more particularly his acceptance of Mr. Chai's self-report, with an open mind and after a meaningful consideration of new information that became available to him. Moreover, it is apparent to me that Dr. Rootenberg's opinion that Mr. Chai's delusions deprived him of the capacity to know his actions were wrong was rooted in erroneous understanding of the applicable legal test, and in particular the legal standard that the incapacity in issue is appreciation of the conduct would be viewed as wrong as measured against the normative standards of Canadian society.

At the time he delivered his first report on July 16, 2017, the only information Dr. Rootenberg had directly from Mr. Chai regarding his mindset at the relevant time was what Mr. Chai told him during the March 15 and April 13, 2017, assessment interviews. Dr. Rootenberg's ultimate conclusion that Mr. Chai "was unable to know that [his actions] were wrong, particularly in the moral sense" depended on his acceptance of Mr. Chai's self-report during those interviews.

Dr. Rootenberg formed his opinion based on his acceptance that Mr. Chai's self-report was sincere before he had reviewed neither the hours-long recording of Mr. Chai's post-arrest utterances or Mr. Chai's videotaped statement. As already mentioned, Mr. Chai repeatedly and emotionally expressed his remorse and shame for his actions, especially in the videotaped statement. Mr. Chai's expressions of remorse the day of his arrest are strikingly at odds with the claim he later made in the assessment interviews that he felt justified and indeed proud of his actions with the exception of the beating.

At the time he delivered his first report, Dr. Rootenberg was aware of the existence of these materials but he neither requested them nor qualified his opinion with an acknowledgment they might affect his conclusion. More troubling, Dr. Rootenberg not only knew of the existence of recorded utterances and a formal statement, he knew that Mr. Chai had said things that were arguably expressive of remorse because he mentioned this in his first report under the heading "factors less supportive of an NCR defence":

Mr. Chai's statements to investigating police officers shortly after the commission of the index offence that the authorities should kill him, suggest possible knowledge of the wrongfulness of his actions.

It should have been obvious to Dr. Rootenberg that somewhere in the hours-long recording of post-arrest utterances and videotaped statement he might find a remark, declaration, emotional outburst, admission, excuse or protestation of remorse shedding light on Mr. Chai's mental state at the relevant time and, quite possibly, that cast doubt on what Mr. Chai had told him. I would have thought it as basic to forensic psychiatry as it is to the law of evidence that what someone says while thoughts and utterances still flow instinctively under the pressure of immediate events is inherently reliable and worthy of consideration; certainly, Dr. Rootenberg should have been alive to the possibility that Mr. Chai's statements to police were by their very nature and timing less likely to be the product of concoction or distortion than an account given two months later during an assessment interview.

At the outset of her cross-examination of Dr. Rootenberg, Ms McCallum adeptly fastened on this key weakness in Dr. Rootenberg's opinion. It was obvious from his responses that Dr. Rootenberg was keenly sensitive to the imputation, at first implied by Crown counsel and later made explicit, that he had rushed to judgment and failed to even consider, much less critically evaluate, information tending to contradict his opinion. The initial exchange set the stage and tone for what followed over two days of testimony and is worth setting out in full:

[The court then sets out an extensive cross-examination exchange between Ms. McCallum and Dr. Rootenberg regarding his failure to review post-arrest utterances, police statements, and wiretap recordings before forming his opinion.]

I have reviewed this exchange a number of times and I am still unclear whether Dr. Rootenberg fully appreciated the distinction that Crown counsel was attempting to draw to his attention. Certainly he never articulated the component of the test linking knowledge of wrongfulness to societal normative standards until he slowly allowed himself to be led to it in the above passage.

In the final analysis, however, perhaps more important than his ability to correctly articulate the test in words is the question of whether anything in his analysis demonstrates an appreciation that the relevant incapacity relates to knowledge of wrongfulness measured against Canadian societal standards. Nowhere in his reports or testimony does Dr. Rootenberg address Mr. Chai's capacity to know that other people viewing his conduct through the lens of Canadian societal norms would view his actions as morally wrong. Given what Mr. Chai said in his police statement, that specific issue had to be addressed and but was not.

Dr. Pallandi

Dr. Pallandi concluded Mr. Chai's delusional disorder deprived him of the capacity to know his actions were wrong for essentially the same reasons as Dr. Rootenberg and I reject his opinion largely on the same basis. Like Dr. Rootenberg, Dr. Pallandi did not critically evaluate the sincerity of Mr. Chai's self-report in light of its internal contradictions and inconsistency with the extrinsic evidence nor does his analysis.

Dr. Pallandi was similarly defensive, and as a result unhelpful, in responding to Crown counsel's legitimate attempts to elicit specific information about how he reconciled various features of the evidence of his opinion. In one of Dr. Pallandi's memorable answers when he was cross-examined about his uncritical acceptance of Mr. Chai's explanation for expressing remorse to police i.e. that he was only referring to beating Mr. Wei, he asserted "I consider all the information, and to suggest that I would discount it or don't think it's important is actually preposterous". That adjective perhaps applied, but not to Ms McCallum's suggestion.

Although Dr. Rootenberg also cited Mr. Chai's denial that he is mentally ill as a reason for accepting the sincerity of his self account, Dr. Pallandi emphasized this point, and so I address it here.

When defence counsel asked Dr. Pallandi to explain why he had concluded Mr. Chai was not malingering, Dr. Pallandi referred to Mr. Chai's apparently emotional denial that he was mentally ill when Dr. Pallandi raised the issue during their January 22, 2018, assessment interview:

[The court then sets out Dr. Pallandi's testimony regarding Mr. Chai's reaction to being told he was mentally ill.]

Like Dr. Pallandi, during closing argument defence counsel characterized Mr. Chai's denial that he is mentally ill as confirmatory of his self-report. For two reasons I reject this submission.

First, when Dr. Pallandi conducted this interview, Mr. Chai had just sat through the first phase of this trial over two and a half weeks during which he heard all the evidence, discussions, objections and submissions. He heard the reports being discussed and was asked questions about what he had sent to Dr. Rootenberg and Dr. DeFreitas. As previously mentioned, Mr. Chai is clearly an intelligent man and he displayed full appreciation of the proceedings going on around him. This does not mean he accepts he has a mental disorder, but it does make it hard to accept that he was surprised to learn about basic findings and opinions he is relying on in furtherance of his defence.

Second, and more importantly, there is no real issue that Mr. Chai met the diagnostic criteria for delusional disorder at the relevant time and no live issue about whether he was "malingering" in the sense of making up the very existence of a mental disorder. The issue, rather, is whether in the context of having a mental disorder Mr. Chai has told the truth, the whole truth and nothing but the truth about on his what was going on in his mind – both beliefs and motivations – when he committed the index offences. I do not see how his responses to Dr. Pallandi, even assuming they were not disingenuous, confirm Mr. Chai's self-report, especially those aspects of it that are the building blocks of his overall claim that he was rendered incapable of knowing his actions were morally and legally wrong measured against the standards of Canadian society.

In this regard, I note that apart from what Mr. Chai saw and heard in court during the first phase of this trial, he had also staked his claim to an NCR verdict even before the trial began. Mr. Chai may deny being mentally ill but it seems to me that I am entitled to assume able and experienced counsel has advanced the NCR defence on Mr. Chai's instructions since it would be most improper for him to raise it without such instructions: R v Szostak.

To be clear, I do not suggest such instructions mean that Mr. Chai acknowledges having a mental disorder; they simply mean that he knows that is the defence being pursued which, in turn, seems at odds with Dr. Pallandi's description of his reaction. It is also means that, like any accused offering a defence, he has a potential motive to fabricate aspects of his account. To be clear, I place no weight on this consideration in my overall assessment of Mr. Chai's credibility because in the circumstances of this case it would be unfair to do so. But I do think it undermines Dr. Rootenberg's and Dr. Pallandi's reasoning that because Mr. Chai denies his mental disorder his self-report is more likely to be true. The fact that Mr. Chai denies having a mental illness neither reduces nor increases the likelihood that he was telling the truth.

Dr. De Freitas

My ultimate conclusion that Mr. Chai has not proven on a balance of probabilities that his mental disorder deprived him of the capacity to know his actions were wrong is in line with Dr. DeFreitas's opinion to the same effect, but I have reached that conclusion largely for reasons independent of her analysis.

I have placed some weight on Dr. DeFreitas's analysis of Mr. Chai's diagnosis, including that the information apart from his self-report in relation to the index offences indicates "his delusions have typically involved people stealing from him, or talking about him, or trying to upset him purposefully" and that there was "no reason to believe that this disorder was inactive or in remission at the time of the index offences, given that it has a chronic course, and he was not receiving any treatment at the material time."

I have placed some weight on Dr. DeFreitas's analysis of Mr. Chai's diagnosis, including that the information apart from his self-report in relation to the index offences indicates "his delusions have typically involved people stealing from him, or talking about him, or trying to upset him purposefully" and that there was "no reason to believe that this disorder was inactive or in remission at the time of the index offences, given that it has a chronic course, and he was not receiving any treatment at the material time."

Portions of Mr. Chai's own testimony also lend some support to this view. For example, Mr. Chai testified that he purchased the handgun for self defence because he felt unsafe and people were watching him and went on to elaborate about the incident with the neighbours calling the police after he used an air gun. Mr. Chai also testified that he had been very cautious and careful about people stalking him even back in China as well as attempting to find out his investment plan, and that was not an impression but a matter of fact.

There is nothing inconsistent with the diagnosis of delusional disorder and the possibility that Mr. Chai's motivation for committing the offences was other than what he reported. In other words, acceptance of the diagnosis does not entail acceptance that the ideational content of Mr. Chai's delusions lines up with his self-report.

At the same time, in my view Dr. DeFreitas understated the likelihood that Mr. Chai's delusions are attached in some way to corrupt officials. Although I have concluded that more likely than not Mr. Chai's delusional beliefs did not extend to a subjective belief the Chinese government had tasked him with a mission whose completion constituted a moral imperative transcending Canadian legal and moral norms, I do accept the likelihood that Mr. Chai's delusional beliefs are attached to the topic of corrupt officials in some manner. While I reach no firm conclusion about the precise boundaries have the delusional beliefs related to corrupt officials, it is not difficult to imagine how persecutory beliefs that have historically attached themselves to Mr. Chai's work as a financial professional could become focused on corrupt officials as a group.

Ms Tong's testimony that Mr. Chai shared his views about corrupt officials influencing the GTA housing market and his issues with controlling his anger that seem to be related in some way to his persecutory beliefs supports this view.

I agree with Mr. Neuberger's submission that Dr. DeFreitas also overemphasized the significance of Mr. Chai's failure to tell anyone about his mission or status as a anticorruption agent. In particular, I take nothing from the fact Mr. Chai chose not to explain his motivation during his police interview. Mr. Chai was quite capable of behaving rationally and in his own best interest in relation to his decision whether or not to speak to the police as his own assertions during the interview make clear, and he also had received legal advice that he should remain silent. As a matter of fact and logic, if Mr. Chai did believe himself to be acting on the "mission" he described, I would not necessarily expect him to reveal this to the police at the time. Even apart from these considerations, relying on his exercise of his right to silence would make a trap of that constitutional right which would be legally impermissible even if it did reduce the credibility of his account, which in my view it does not.

Overall, while I found Dr. DeFreitas's opinion more helpful than either Dr. Rootenberg's or Dr. Pallandi's, largely because she analysed the issue of diagnosis more holistically, applied a level of critical scrutiny to Mr. Chai's self-report that was noticeably absent in the other two assessments and made some effort to analyse the plausibility of Mr. Chai's account with reference to the extrinsic evidence, her assessment of that evidence cannot be described as in-depth.

Final Analysis and Conclusion

Framing the Issue

The key issue in this case is whether the defence has proven on a balance of probabilities that "through the distorted lens of his mental illness [Mr. Chai saw] his conduct as justified, not only according to his own view, but also according to the norms of [Canadian] society".

As previously noted, Mr. Neuberger submits the defence has Mr. Chai was driven to commit the offences by the belief he had been tasked by Chinese anticorruption authorities to locate and capture corrupt officials and deliver them to the Chinese Embassy. As part and parcel of his delusion, Mr. Chai believed that his duty as a Chinese citizen and de facto anticorruption law enforcement officer to complete his "mission" was a moral imperative transcending Canadian legal and moral standards.

Mr. Neuberger further submits "there are two possibilities: either Mr. Chai was motivated by personal greed and manufactured the symptoms of a major mental illness to escape criminal liability, or Mr. Chai was a deeply disturbed individual whose mental illness robbed him of his ability to know his actions were wrong." The first alternative is far-fetched given the absence of evidence of any financial motive, the positive evidence that Mr. Chai and his wife have assets in China worth several million dollars, the absence of any history of antisocial behaviour and the fact that despite his mental disorder Mr. Chai has been a successful financial professional for most of his adult life. It follows that the only plausible explanation for Mr. Chai committing these offences is that he was impelled by delusional beliefs that also robbed him of his capacity to know his actions were wrong.

Ms McCallum frames the issue differently. She submits that even outright rejection of the proposition that Mr. Chai was motivated by personal greed and manufactured the symptoms of a major mental illness to escape criminal liability does not establish that mental disorder robbed Mr. Chai of the capacity to know his actions were wrong. Even if Mr. Chai suffered from delusional disorder at the relevant time, she submits, it is an open question whether Mr. Chai's delusions extended to believing he had been tasked to apprehend and deliver corrupt Chinese officials and their ill-gotten gains to the Chinese authorities or, in other words, whether his mental disorder drove his conduct in committing the offences. Moreover, even if Mr. Chai's self-professed mission was part and parcel of his delusional belief system, it does not necessarily follow that the delusion rendered Mr. Chai incapable of knowing that reasonable members of Canadian society would regard his actions – the specific means he chose to carry out his mission –as morally wrong.

Conceiving of the issue for decision as a stark choice between two antipodal theories of the case – (a) Mr. Chai committed the offences out of greed and manufactured mental illness to escape liability, or , (b) he was a deeply disturbed individual whose mental illness robbed him of his ability to know his actions were wrong – ignores the several hypotheses other than (a) that are consistent with both the evidence and the defendant having retained the capacity to know his actions were wrong. Disproving (a) does not prove (b), in other words, and consequently framing the issue as a binary choice is inconsistent with the burden and standard of proof.

In my view, the correct approach is to start from the presumption of criminal responsibility, conduct a holistic assessment and weighing of the evidence with a view to determining whether Mr. Chai's operative mental disorder at the time he committed the offences more likely than not deprived him of the capacity to know his actions were wrong.

That Mr. Chai suffered from delusional disorder at the time he committed the offences is a necessary condition for accepting Mr. Chai was robbed of the capacity to know his actions were wrong b ut it is by no means a sufficient condition. I must be satisfied that Mr. Chai not only suffered from delusional disorder but was animated by the particular delusion that he was under a duty to fulfil the mission as he described it and that this constituted a moral imperative transcending Canadian legal and moral standards.

I do not mean to suggest the specific thought "this mission is a moral imperative transcending Canadian legal and moral standards" had to pass through Mr. Chai's mind for him to avail himself of the s.16 defence; indeed, Mr. Chai's self-report does not include any acknowledgment the beliefs in question were delusional. There is, in other words, a modest inferential gap between the self-report and a finding as to the ideational content of Mr. Chai's delusions and, more particularly, that it extended to a belief that he was morally bound to complete the mission. But only that particular delusional idea meets the required specification of depriving Mr. Chai of his capacity to know his actions were morally wrong as measured against the standards of Canadian society.

Leaving aside Mr. Chai's self-report for the moment, since he was suffering from delusional disorder at the relevant time it seems likely that one or more delusional beliefs was active in his mind at the time he committed the offences. While it is likely that a delusional belief attached in some way to corrupt officials was active, many possible delusional ideas, motives and degrees of interplay between the two could have been operative.

For example, perhaps Mr. Chai's delusion did not extend to any belief about a mission, but did encompass both a genuine belief that Mr. Wei was a corrupt official and an anger-driven fixation on corrupt officials that generated a subjective belief that as a corrupt official, Mr. Wei was a morally suitable target for what was otherwise a crime-for-profit. A variation on this hypothesis is that Mr. Wei did hear Mr. Chai speaking to someone in Mandarin in the underground parking lot at Pacific Mall and did see a man other than Mr. Chai looking in at him as he lay in the backseat of the rental vehicle, Mr. Chai's accomplice in a profit-motivated kidnapping. In these scenarios, Mr. Chai would not be entitled to an NCR verdict because "his personal views or beliefs were driven by mental disorder but he retained the capacity to know that it was regarded as wrong on a societal standard": R v Ross.

Yet another hypothetical possibility is that an organized crime group somehow gained leverage over Mr. Chai and extorted him into committing the kidnapping, as happened in R v Li, and that his delusional disorder played no role.

The permutations and combinations of delusional content and motive are boundless. Some find a degree of support in the evidence and others, like the last one mentioned, are pure supposition.

I mention these possibilities to illustrate that my determination does not involve a binary choice between any one particular version of events in which Mr. Chai was not deprived of the capacity to know his actions were wrong on the one hand, and the morally-imperative mission hypothesis on the other. The only question for me to decide is whether the latter is more likely true than not true. In other words, a conclusion that Mr. Chai has not met his burden does not entail a specific finding as to what delusions and/or motive(s) were likely operative.

Equally, in fairness to Mr. Chai I must also not allow the sheer number of possibilities and variations to distort my analysis of whether the evidence establishes a greater likelihood that Mr. Chai believed he was on the morally-imperative mission he has described. The alternative possibilities are baked into the presumption of criminal responsibility. My task is to start from there and simply determine whether the evidence as I assess it proves that it is more likely than not that Mr. Chai was on the morally-imperative mission he has described such that he was rendered incapable of knowing his actions were wrong measured against the normative standards of society.

Conclusion

There is nothing in the nature of delusional disorder that precludes Mr. Chai having that disorder and yet also providing a false or partly false account of his motivation for committing the offences. As the experts explained, unlike other psychotic conditions, delusional disorder typically does not impair thinking or functioning in areas apart from the delusion. I find that it is more likely than not that, for reasons of his own, Mr. Chai made up the story about his mission, or given an incomplete or exaggerated account of it, even while holding other delusional beliefs, including beliefs that attached in some way to corrupt officials.

Motive is not an essential element of the charged offences but a proven absence of motive other than the one Mr. Chai acknowledges would support the defence position. Here, there is evidence that Mr. Chai is a wealthy man, at least in terms of assets held in China, and no evidence of financial desperation or any clear reason why Mr. Chai would have perceived the need to acquire large sums of money by kidnapping Mr. Wei. I agree with defence counsel that given Mr. Chai's wealth, background and the absence of any history of antisocial behaviour, his decision to commit these offences is, if not driven by his self-professed mission, puzzling.

It is, however, a puzzle I am not required to solve in order to conclude that Mr. Chai's account not likely to be true. Mr. Chai's description of his mission and his intentions prior to entering 14 Library Lane on January 17, 2017, was inconsistent both internally and in relation to the evidence as a whole and I am unable to accept it as a true and accurate account of his state of mind at the time he committed these offences.

I do not accept that Mr. Chai entered 14 Library Lane with the intention of gathering documents to take with him. In my view, the preponderance of the evidence suggests Mr. Chai entered intending to do something very much like what he did do, something he had already planned. How far in advance, and for what exact purpose, I cannot say.

It is certainly possible Mr. Chai did in fact believe he was on the "mission" he described without any delusionally-inspired belief he was morally justified in carrying it out in the way he did. Perhaps anger and resentment led him to depart so dramatically from the assigned mission to investigate and advise. Certainly this is consistent with both his description of his assigned mission and his deceptive claim the offences were unplanned.

Be all of that as it may, in the final analysis I do not accept the essential components of Mr. Chai's account were truthful and he has not proven on a balance of probabilities that his mental disorder deprived him of the capacity to know his actions were wrong.

Accordingly, I find Mr. Chai guilty as charged.

Released: April 8, 2019

Signed: Justice John McInnes