ONTARIO COURT OF JUSTICE

CITATION: R. v. Chheng, 2021 ONCJ 248

DATE: 2021-04-27

COURT FILE No.: Central East Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MOTHY CHHENG

Before Justice J. Bliss

Heard on September 18, 2019, October 11, 2019, February 17, 18, 19, 2021

Reasons for Judgment released on April 27, 2021

C. Peters............................................................................................... counsel for the Crown

B. Smith................................................................ counsel for the accused Mothy Chheng

BLISS J.:

Overview

[1] Mothy Chheng suffers from schizophrenia. To understand generally what that means, I begin with an excerpt from the assessment report prepared in this case:

Schizophrenia is a major mental illness that tends to have its onset, in males, in the second or third decade of life. Once extant, schizophrenia is a lifelong illness. An individual suffering from schizophrenia suffers from symptoms of psychosis. Psychosis is generally defined as the presence of delusions, hallucinations, grossly disorganized thought and behaviour, or some combination of these. After a time of suffering from schizophrenia, many individuals will also experience social and occupational decline, as well as a diminution of their motivation and self-care. The mainstay of treatment for schizophrenia is treatment with antipsychotic medication. This tends to ameliorate or ablate, the more florid symptoms of psychosis in more than 80% of individuals treatment. (Excerpt from Dr. Woodside’s report, p. 36)

[2] On July 3, 2018, Mothy Chheng was 27 years old. He had no criminal record. He had worked for the past two years at Flex-N-Gate assembling brake parts. Other than exchanging pleasantries with the few co-workers he would speak with, he kept to himself. To his family, there were signs that he was mentally ill, although they did not use those words; instead they described him as “not being normal”. In fact, what they saw were signs of schizophrenia and the symptoms of psychosis. The signs of schizophrenia had been there for some time, but to the outside world, Mothy Chheng was just someone who was very quiet, kept to himself, and didn’t bother anyone. Whatever glimpses there were of Mr. Chheng’s inner turmoil, there was nothing in his daily life; certainly nothing in the mundane routine of his work, that hinted at the unprovoked, random act of violence that he inflicted on Khamphouviene Sourapha, an innocent co-worker, on July 4, 2018. Why her and not someone else? Apparently, because she was closer.

[3] On July 4, 2018, Mothy Chheng was scheduled to work the afternoon shift that went from 3:30 p.m. until midnight. He woke up at noon. At 1:30 p.m., he went to Vaughan Mills Shopping Centre and bought two pairs of basketball shorts. He returned home around 2:30 p.m. and drove the block to his work at Flex-N-Gate. The shift began at 3:30 p.m. At 6:00 p.m. there was a 12 minute break . At 8:30 p.m., a lunch break until 8:53 p.m. and then a final break at 10:30 p.m.. The work was routine and the shift uneventful. After the lunch break, Mr. Chheng picked up a brake part, walked to where Ms. Sourapha was stationed, and without warning, began hitting her on her face and head with the brake assembly. She fell to the floor. There was blood around her. He continued hitting her. He had no expression on his face. Other workers were alerted to what was happening and came over. Without saying a word, Mr. Chheng walked out the back door and drove away. He drove to a parking lot, sat for some time, and then drove around the area before heading to McDonald’s to buy food and then going home to eat. When he got home, he changed out of his work clothes. Around 2:45 a.m., he decided he needed to buy cigarettes. Police were waiting for him to leave his home and apprehended him shortly after.

The issue

[4] The proceeding before me commenced as a preliminary inquiry. Shortly before the prosecution closed its case, the prosecution and defence jointly sought an order pursuant to s.672.11(b) of the Criminal Code, for an assessment to determine whether Mothy Chheng was, at the time of the commission of the offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) of the Criminal Code. Dr. Scott Woodside conducted the assessment and a report was prepared. When the matter returned, the matter was converted to a trial on consent. The defence conceded that the evidence established beyond a reasonable doubt that Mothy Chheng attempted to murder Khamphouviene Sourapha and a finding of guilt was made. The defence submitted, however, that Mr. Chheng should be found not criminally responsible for the offence submitting that it was committed while he was suffering from a mental disorder that rendered him incapable of knowing that it was wrong as defined by s.16(1) of the Criminal Code.

[5] Dr. Woodside was the only witness called at the NCR hearing. He was qualified as an expert in the field of forensic psychiatry and permitted to offer opinion evidence on the issue. His assessment report, which he adopted, concluded with his opinion that “on the balance of probabilities and from a psychiatric perspective,…the most likely scenario accounting for Mr. Chheng’s actions at the material time is that he was suffering from active symptoms of psychosis which had a disorganizing effect on him, leading to difficulties in his articulating any rational motive for his actions at the material time.” In his opinion, “Mr. Chheng was likely so preoccupied with, and disorganized by, the symptoms of his mental illness that he was not capable of engaging in any rational choice regarding his actions. Overall, from a psychiatric perspective and on the balance of probabilities, [he] believe[d] that Mr. Chheng would have a defense of not criminally responsible due to mental disorder available to him.”

[6] There is a presumption of sanity. The burden was on Mr. Chheng to prove he was not criminally responsible on a balance of probabilities. At the NCR hearing, Dr. Woodside remained of the opinion that Mr. Chheng was not criminally responsible, although when asked where he would put Mr. Chheng on a balance of probabilities, put him as somewhere between 50 and 60%. In his opinion, while Mr. Chheng appreciated the nature and quality of his acts, and appreciated the legal wrongfulness of his actions, he did not know the moral wrongfulness of his act. His schizophrenia so disordered his thoughts that even though he possessed and could express a rote knowledge of the moral wrongfulness of his conduct, he did not have the capacity to exercise rational choice about the rightness or wrongness of the act.

[7] Dr. Woodside was the only witness called on the NCR hearing. The defence submits that the evidence establishes, on a balance of probabilities, that at the time of the offence, Mothy Chheng was in a state of psychosis that rendered him incapable of appreciating the moral wrongfulness of his actions and he should be found not criminally responsible for his criminal act.

[8] The prosecution submits that the defence has not met its burden, and that Mr. Chheng knew what he was doing and knew it was legally and morally wrong. The prosecution further submits that criminal responsibility requires an individual know the act was wrong. The capacity to make a rational choice to act or not, is not, according to the prosecution, part of the test. This became a dispute as to which decision governs: The decision of the Supreme Court of Canada in R. v. Oommen 1994 26 (SCC), [1994] S.C.J. No. 6 or the Ontario Court of Appeal’s decision in R. v. Dobson 2018 ONCA 589, [2018] O.J. No. 3450.

[9] The prosecution concedes that the Supreme Court of Canada in R. v. Oommen (supra) speaks of criminal responsibility as asking whether the accused’s mental disorder deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act, but submits that Ontario Court of Appeal’s decision in R. v. Dobson (supra) which, the prosecutions submits removes “rational choice” as an element of criminal responsibility, governs. The prosecution submits that the Supreme Court of Canada’s refusal to grant leave in Dobson (supra) was an implicit acceptance of the correctness of the Court of Appeal’s decision in that case. With respect, I disagree. No authority was provided to support such an interpretation of the meaning of a refusal to grant leave, and it is not one I am prepared to adopt.

[10] I am of the view that the test to be applied in assessing criminal responsibility under s.16 of the Criminal Code, is that which the Supreme Court of Canada set out in Oommen (supra). It includes an assessment of whether the person suffering from a mental disorder had the capacity for rational choice. For the reasons that follow, I have come to the conclusion that on a balance of probabilities, Mr. Chheng was suffering from a mental disorder at the time of the offence that rendered him incapable knowing that what he was doing was wrong, and is not criminally responsible.

The Law

[11] Section 16 of the Criminal Code reads:

(1) No person is criminally responsible for an act committed…made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act… or knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

[12] There is no issue that Mr. Chheng suffers from a mental disorder, namely, schizophrenia. The first branch of the test in s.16(1) asks if the person appreciates the nature and quality of the act. There is no dispute that despite that his mental disorder, Mothy Chheng was, at the relevant time, capable of appreciating the nature and quality of his act. The second branch of the s. 16(1) test asks whether he knew what he was doing was wrong? Wrong has been judicially interpreted to mean both legally wrong and morally wrong. The evidence established on a balance of probabilities that Mr. Chheng knew his act was legally wrong. The issue here was whether he was aware his act was morally wrong.

[13] In the reasons that follow, I will set out why I am of the view that the test includes the exercise of rational choice in Oommen (supra), and why the capacity for rational choice has not been excised from the criminal responsibility equation or “overturned” or superseded by Dobson (supra).

[14] To understand my decision on this issue, and my conclusion in this case, I need to go back to the Supreme Court of Canada’s decision in R. v. Chaulk 1990 34 (SCC), [1990] S.C.J. No. 139. In that decision, the Court provided a number of examples to illustrate how the insanity defence can arise. At para 23, Lamer C.J. for the majority, wrote:

…the insanity defence can be raised in a number of different ways, depending on the mental condition of the accused. All of [the] examples have one thing in common however. Each is based on an underlying claim that the accused has no capacity for criminal intent because his or her mental condition has brought about a skewed frame of reference. When a person claims insanity, he or she may well be denying the existence of mens rea in the particular case or putting forward an excuse which would preclude criminal liability in the particular case; but he is also making a more basic claim which goes beyond mens rea or actus reus in the particular case -- he is claiming that he does not fit within the normal assumptions of our criminal law model because he does not have the capacity for criminal intent.

[15] Dealing directly with the issue of the meaning of “wrong” in s.16(2), the majority in Chaulk addressed the Court’s earlier decision in Schwartz v. The Queen, 1976 165 (SCC), [1977] 1 S.C.R. 673 as follows:

The meaning of the term "wrong" for the purposes of s. 16(2) was determined by this Court in Schwartz v. The Queen, 1976 165 (SCC), [1977] 1 S.C.R. 673. Speaking for the majority, Martland J. held that the capacity to know that an act is wrong in this context means no more than the capacity to know that what one is doing is against the law of the land (Chaulk, supra, para 82).

… In [the majority in Schwartz’s] view, the effect of s. 16(2) is to make the defence of insanity available to an accused who, because he suffered from a disease of the mind, did not know that he was committing a crime…[They] could not accept that an insane person, committing an act that he knows to be a crime, could be acquitted if he believed that the act was acceptable according to the standards of reasonable men when a sane person believing such would not be acquitted. Furthermore, the majority rejected the test …that entailed a subjective approach by examining the individual capacity of an accused to reason as to the wrongfulness of an act (at pp. 701-2):

In my opinion the test provided in s. 16(2) is not as to whether the accused, by reason of mental disease, could or could not calmly consider whether or not the crime which he committed was morally wrong. He is not to be considered as insane within s. 16(2) if he knew what he was doing and also knew that he was committing a criminal act.

(Chaulk, supra, para 87)

[16] Lamer C.J. observed, at para 88, that “Dickson J., as he then was, dissented in Schwartz and noted that the word "wrong" as used in s. 16(2) is ambiguous and is capable of meaning either "legally" or "morally" wrong.” Lamer C.J. went on:

More fundamentally, Dickson J. concluded that a reading of s. 16(2) as a whole leads to the conclusion that "wrong" must mean contrary to the ordinary moral standards of reasonable men and women. The object of s. 16(2) is to protect individuals who do not have the capacity to judge whether an act is wrong; the inquiry as to the capacity of an accused to reason must not end simply because it is determined that the accused knew that the act was a crime. He argued that this would not serve to protect amoral persons since any incapacity must result from a disease of the mind (at p. 689):

Section 16(2) must be read in toto. One looks at capacity to reason and to reach rational decisions as to whether the act is morally wrong. If wrong simply means "illegal" this virtually forecloses any inquiry as to capacity. The question for the jury is whether mental illness so obstructed the thought processes of the accused as to make him incapable of knowing that his acts were morally wrong…. If, as a result of disease of the mind, the offender has lost completely the ability to make moral distinctions and acts under an insane delusion, it can well be said that he should not be criminally accountable.

The interpretation of "wrong" as meaning "morally wrong" would not, in his opinion, have the effect of opening up the insanity defence to a far greater number of accused persons. First, what is illegal and what breaches society's moral standards do not often differ. Secondly, "[m]oral wrong" is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong" (p. 678). He concluded that an accused is not therefore free, as a result of such interpretation, to substitute at will his own sense of morality for that of society, but is to be acquitted by reason of insanity if, by reason of disease of the mind, he is incapable of knowing that society generally considers a particular act to be immoral.”

(Chaulk, supra, para 91)

[17] The majority in Chaulk held that Schwartz was wrongly decided. “Schwartz had the effect of expanding the scope of criminal responsibility unacceptably to include persons who, by reason of disease of the mind, were incapable of knowing that an act was wrong according to the normal and reasonable standards of society even though they were aware that the act was formally a crime.” The majority in Chaulk held that the dissenting opinion of Dickson J. in Schwartz was to be preferred and that it was the Court’s responsibility to refine the scope of criminal liability to accord with the basic principles of our criminal law. (Chaulk, supra, para 94)

[18] The rationale underlying the “defence of insanity” the Court observed, “rests on the belief that persons suffering from insanity should not be subject to standard criminal culpability with its resulting punishment and stigmatization. This belief, in turn, flows from the principle that individuals are held responsible for the commission of criminal offences because they possess the capacity to distinguish between what is right and what is wrong.” (Chaulk, supra, para 95)

[19] Lamer C.J. explained that:

Section 16(2) of the Code embodies this conception of criminal responsibility by providing that no person shall be convicted of an offence who, at the time of committing the act in question, is in a state of "natural imbecility" or has disease of the mind to such a degree as to render him incapable of "knowing that an act or omission is wrong." The principal issue in this regard is the capacity of the accused person to know that a particular act or omission is wrong. As such, to ask simply what is the meaning of the word "wrong" for the purposes of s. 16(2) is to frame the question too narrowly. To paraphrase the words of the House of Lords in M'Naghten's Case, the courts must determine in any particular case whether an accused was rendered incapable, by the fact of his mental disorder, of knowing that the act committed was one that he ought not have done. (Chaulk, supra, para 96)

Viewed from this perspective, it is plain to me that the term "wrong" as used in s. 16(2) must mean more than simply "legally wrong". In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of "natural imbecility" or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society… (Chaulk, supra, para 97)

The test articulated in s. 16(2) is directed, as emphasized above, at an analysis of the capacity of the accused to reason and to understand the meaning of the terms "right" and "wrong", concepts that demand a moral judgment on the part of every individual in order to be applied in practice. It cannot be determined that an accused does not have the necessary capacity to engage in such moral reasoning simply because he or she does not have the simple ability to retain factual information, for example, the ability to know that a certain act is a crime in the formal sense. As Professor Colvin points out in Principles of Criminal Law, op. cit., at pp. 253 and 255:

The capacity to know the law in a formal sense involves typically no more than the capacity to absorb and retain normative information... . For the most part, formal knowledge of law does not call into play the capacity to analyze and assess an assortment of data which may present divergent and competing messages.

(Chaulk, supra, para 100)

[20] This restrictive interpretation of “capacity” did not survive Oommen. Just as Dickson J. laid the groundwork for knowing an act is wrong to mean morally wrong and legally wrong in his dissent in Schwartz, that was adopted in Chaulk. Similarly, McLachlin J.’s dissent in Chaulk laid the foundation for criminal responsibility requiring the capacity for rational perception and rational choice about the rightness or wrongness of the act that was followed in Oommen (supra) and remains the law today..

[21] In her dissent in Chaulk, McLachlin J. wrote:

It is true, of course, that an accused who does not have the capacity to appreciate something cannot have appreciated it; the point, however, is that the insanity inquiry never looks beyond capacity to actual mens rea or actus reus. For practical purposes, where insanity becomes an issue at trial, there will be objective evidence from which, absent the claim of insanity under s. 16 of the Code, the trier of fact will be justified in inferring the existence of the essential elements of the offence, i.e. the actus reus and mens rea. The claim of insanity, however, pre-empts the traditional inference-drawing process on the ground that a person without the capacity for choice as defined in s. 16 of the Criminal Code is not morally culpable. Because of lack of capacity, therefore, the issue of actus reus and mens rea never arises (Chaulk, supra, para 201)

This capacity for choice is a fundamental prerequisite to attribution of criminal responsibility and punishment. To limit application of the insanity provisions to situations where mental disorder within s. 16 negatives mens rea would fail to accord with this precept; moreover, and importantly, it is not what s. 16 of the Code directs. (Chaulk, supra, para 202)

I turn now to the purpose and theory underlying the insanity provisions. In my view, they too support the view that "wrong" in s. 16(2) of the Code means simply that which one "ought not to do." The rationale behind the insanity provisions, as discussed earlier in these reasons, is that it is unfair and unjust to make a person who is not capable of conscious choice between right or wrong criminally responsible. Penal sanctions are appropriate only for those who have the ability to reason right from wrong, people capable of appreciating what they ought and ought not to do. A person may conclude that he or she ought not to do an act for a variety of reasons. One may be that it is illegal. Another may be that it is immoral. The reasons for which one concludes that one ought not to do an act are collateral to the fundamental rationale behind the insanity provisions -- that criminal conviction is appropriate only where the person is capable of understanding that he or she ought not to do the act in question. (Chaulk, supra, para 234)

[22] In the decision of R. v. Ratti [1990] S.C.J. No. 5, at para 20 which followed, the Court observed that the question whether a person should be found not guilty by reason of insanity “is whether the [person] 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.

[23] Oommen gave the Supreme Court of Canada the opportunity to reconsider what is meant by the “capacity to know an act is wrong”. In that case, the accused had committed murder. The trial judge found that he was acting under the influence of a paranoid delusion at the time of the killing and that his mental disorder compelled and caused the killing. The trial judge found that on a balance of probabilities Mr. Oommen "was capable of knowing that what he was doing was wrong according to moral standards of society.... [H]e was capable of knowing that society in general would regard it as wrong." Despite his general capacity to distinguish right from wrong, the trial judge found as a fact that "subjectively the accused did not believe his act was wrong"…Whether because of this subjective belief in the rightness of his act or confusion engendered by the delusion, Mr. Oommen was unable to apply his general ability to distinguish right from wrong to the act of killing Ms. Beaton… The trial judge concluded that in view of the accused's general capacity to know right from wrong, he was not relieved from criminal responsibility under s. 16(1), notwithstanding his subjective belief that what he did was right and his inability to apply his general knowledge of right and wrong.” (Oommen, supra, para 16)

[24] The question in Oommen was: “What is meant by the phrase "knowing that [the act] was wrong" in s. 16(1)? Does it refer only to abstract knowledge that the act of killing would be viewed as wrong by society? Or does it extend to the inability to rationally apply knowledge of right and wrong and hence to conclude that the act in question is one which one ought not to do? (Oommen, supra, para 20).

[25] The decision of the Court was written by McLachlin J. and embedded rational choice into the assessment:

A review of the history of our insanity provision and the cases indicates that the inquiry focuses not on general capacity to know right from wrong, but rather on the ability to know that a particular act was wrong in the circumstances. The accused must possess the intellectual ability to know right from wrong in an abstract sense. But he or she must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. (Oommen, supra, para 21)

The test was set out as follows:

The crux of the inquiry 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; as the following passages indicate these include at a minimum the states to which the psychiatrists testified in this case -- 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. (Oommen, supra, para 26)

[26] McLachlin J. cited, with approval, the observations from two decisions of the Australian High Court in R. v. Porter (1933), 55 C.L.R. 182 (H.C. Aust.), and Stapleton v. The Queen (1952), 86 C.L.R. 358, at p. 367 that required the capacity to reason for criminal responsibility:

The question is whether [the accused] was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.... What is meant by wrong is wrong having regard to the everyday standards of reasonable people. (Porter, supra, at pp. 189-90 referred to in Oommen, supra, para 27)

“.. it is enough if [the disease, disorder, or defect of reason] so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. (Stapleton, supra, p. 367 referred to in Oommen, supra, para 28)

[27] McLachlin J. also found support for capacity for rational choice from G. Arthur Martin, Q.C. (later Martin J.A.), in "Insanity as a Defence" (1965-66), 8 Crim. L.Q. 240, at p. 246, which has particular relevance to the case before me:

[27]

In considering whether an accused was, by reason of insanity, incapable of knowing the nature and quality of the act committed by him, or that it was wrong, the legally relevant time is the time when the act was committed. The accused may by a process of reconstruction after committing some harmful act realize that he has committed the act and know that it was wrong. That is not inconsistent with an inability to appreciate the nature and quality of the act or to know that it was wrong at the moment of committing it.

A person may have adequate intelligence to know that the commission of a certain act, e.g., murder, is wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing and the considerations which to normal people would make the act right or wrong. In such a situation the accused should be exempt from criminal liability. The ultimate issue is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person. Should the accused 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.

(Oommen, supra, para 29)

[28] Oommen made it clear that the question s.16(1) asks 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. (Oommen, supra, para 30)

[29] Post-Oommen, the Supreme Court of Canada has had the opportunity, if they wished, to reconsider, redefine, or even remove “rational choice” or the “capacity for rational perception”, and did not do so. If anything, the Court has taken the opportunity to entrench the capacity for reason or rational choice into the criminal responsibility assessment.

[30] In R. v. Bouchard-Lebrun 2011 SCC 58, 2011 S.C.J. No.58 at para 1, the question of whether toxic psychosis from self-induced intoxication constitutes a "mental disorder" within the meaning of s. 16 gave the Court an opportunity to review the scope of the insanity defence. It spoke of criminal responsibility being the result of voluntary acts of a willing mind at liberty to make a choice or decision, behaviour from a true choice or free will, from a discerning moral agent capable of making choices between right and wrong.

[31] Under the heading of “Defence Provided for in s.16 Cr. C.: An Exception to the General Principle of Criminal Responsibility”, the Court wrote:

45 According to a traditional fundamental principle of the common law, criminal responsibility can result only from the commission of a voluntary act. This important principle is based on a recognition that it would be unfair in a democratic society to impose the consequences and stigma of criminal responsibility on an accused who did not voluntarily commit an act that constitutes a criminal offence.

46 For an act to be considered voluntary in the criminal law, it must be the product of the accused person's free will. As Taschereau J. stated in R. v. King, 1962 16 (SCC), [1962] S.C.R. 746, "there can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision, or in other words, there must be a willpower to do an act whether the accused knew or not that it was prohibited by law" (p. 749). This means that no one can be found criminally responsible for an involuntary act (see Dickson J.'s dissenting reasons in Rabey v. The Queen, 1980 44 (SCC), [1980] 2 S.C.R. 513, which were endorsed on this point in R. v. Parks, 1992 78 (SCC), [1992] 2 S.C.R. 871).

47 An individual's will is expressed through conscious control exerted by the individual over his or her body (Perka v. The Queen, 1984 23 (SCC), [1984] 2 S.C.R. 232, at p. 249). The control may be physical, in which case voluntariness relates to the muscle movements of a person exerting physical control over his or her body. The exercise of a person's will may also involve moral control over actions the person wants to take, in which case a voluntary act is a carefully thought out act that is performed freely by an individual with at least a minimum level of intelligence…Will is also a product of reason.

48 The moral dimension of the voluntary act, which this Court recognized in Perka, thus reflects the idea that the criminal law views individuals as autonomous and rational beings. Indeed, this idea can be seen as the cornerstone of the principles governing the attribution of criminal responsibility …When considered from this perspective, human behaviour will trigger criminal responsibility only if it results from a "true choice" or from the person's "free will"…

49 This essential basis for attributing criminal responsibility thus gives rise to a presumption that each individual can distinguish right from wrong. The criminal law relies on a presumption that every person is an autonomous and rational being whose acts and omissions can attract liability. This presumption is not absolute, however: it can be rebutted by proving that the accused did not at the material time have the level of autonomy or rationality required to attract criminal liability. Thus, criminal responsibility will not be imposed if the accused gives an excuse for his or her act that is accepted in our society, in which there is "a fundamental conviction that criminal responsibility is appropriate only where the actor is a discerning moral agent, capable of making choices between right and wrong" (R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303, at p. 1397).

[32] In R. v. Campione, 2015 O.J. No. 454 at para 39, the Ontario Court of Appeal wrote of the issue then being “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.” The Court went 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.” (Campione, supra, para 41)

The Dobson issue:

[33] At the outset of this decision, I provided my conclusion as to why the Court of Appeal’s decision in Dobson does not supplant Oommen. The following explains why in more detail. The prosecution submits that the Ontario Court of Appeal’s decision in Dobson (supra) removed rational choice from the criminal responsibility equation that the Supreme Court of Canada had set out in Oommen, and that by refusing leave to appeal in Dobson, the Supreme Court was implicitly conceding the correctness of the Court of Appeal’s decision.

[34] Dobson was heard on June 4, 2018 and released on June 28, 2018. In Dobson, one of the issues on appeal was whether the trial judge misinterpreted the phrase “knowing that it was wrong” in s.16(1). All experts agreed that the appellant knew that his actions were legally wrong, but they disagreed on whether the appellant knew his actions were morally wrong. (Dobson, supra, para 6).

[35] Watt J. was the trial judge and provided his interpretation of the word "wrong", at para. 120:

Under the second branch of section 16(1), the term "wrong" refers to morally wrong, that is to say, contrary to the ordinary moral standards of reasonable men and women. What is "morally wrong" is not to be judged by the personal standards of the person charged but, rather, by his or her awareness that society regards the conduct as wrong. In other words, the exemption extends only to those accused of crime who, because of a mental disorder, are incapable of knowing that society generally considers their conduct to be immoral. [Citations omitted.] (para 7)

[36] On appeal, the appellant submitted that “wrongness” 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? (Dobson, supra, para 10) The respondent and appellant both agreed that Oommen was the leading authority on the meaning of "wrong" in s. 16(1). They disagreed about what the case says.

[37] In the case before me, the prosecution points to the following passages from Dobson, supra as support for the proposition that as long as a person is capable of knowing that the act is wrong according to the ordinary moral standards of reasonable members of society, that he knows his act would be morally condemned, then he is criminally responsible. It was put this way in Dobson:

The Crown submits that Oommen does not suggest assessing the capacity of an accused to know that his actions were "wrong" exclusively by reference to his or her delusional perceptions. The Crown submits that it is not enough that the accused, in his delusional state, believed his acts were "right" according to his or her own moral code. On the Crown's approach, an accused can be found NCR only if that accused lacked the capacity to know that society would regard what he did, in the circumstances, as morally wrong… (Dobson, supra, para 19)

The Crown further submits that its interpretation of the meaning ascribed to "wrong" in Oommen is consistent with earlier Supreme Court of Canada jurisprudence. In R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303, the seminal case on the meaning of "wrong" in s. 16, Lamer C.J.C., for the majority, said, at p. 1357:

The accused will not benefit from substituting his own moral code for that of society. Instead, he will be protected by s. 16(2) if he is incapable of understanding that the act is wrong according to the ordinary moral standards of reasonable members of society.

(Dobson, supra, para 20)

[38] The Court in Dobson adopted the meaning of “wrong” proffered by Lamer C.J. in Ratti (supra, para 80) which attaches criminal responsibility “even if the act was motivated by the delusion,…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.”

[39] Doherty J.A. wrote:

22 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, 2009 ONCA 149, at paras. 24-27; R. v. Woodward, 2009 ONCA 911, at para. 5; R. v. Guidolin, 2011 ONCA 264, at paras. 17-18; R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, at paras. 56-58; R. v. Campione, 2015 ONCA 67, 321 C.C.C. (3d) 63, at para. 30.

23 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. [Emphasis added.]

[40] The Court of Appeal interpreted Oommen, to mean 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. (Dobson, supra, para 24)

[41] In the case before me, it is submitted that the Court of Appeal’s decision in R. v. LaPierre [2018] O.J. No. 5093 (C.A.), provides further support for the prosecution’s position. In that case, the court was dealing with fresh evidence that the appellant was not criminally responsible when he committed murder. The fresh evidence was an expert psychiatric opinion that at the time of the offence, the appellant was suffering from a mental disorder and did not know that what he was doing was wrong in terms of moral wrongfulness (LaPierre, supra, para 27)

[42] The Court took issue with this opinion and found that the expert’s ultimate conclusion about the appellant's knowledge of moral wrongfulness was inconsistent with the legal definition of those words. I note that while Dobson was released on June 28, 2018 and LaPierre heard on September 5, 2018, the Court did not refer to Dobson in its judgment but referred to Oommen as setting out the legal definition of moral wrongfulness at para 33:

33 The legal definition of moral wrongfulness is set out in R. v. Oommen, 1994 101 (SCC), [1994] 2 S.C.R. 507, and was summarized by this court in R. v. Woodward, 2009 ONCA 911, at para. 5: "[T]he court must determine whether the appellant was incapable of understanding that his acts were wrong according to the ordinary moral standards of reasonable members of the community".

[43] The interpretation in Oommen remains, in my view, the law. The prosecution highlighted the facts in LaPierre that the Court of Appeal found undermined the foundation for a not criminally responsible defence as analogous to Mr. Chheng’s case before me. In that case, the accused acknowledged that he was aware that killing was legally and morally wrong. In particular, the Court wrote:

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

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

And then what did you do Trevor?

I did the wrong thing.

What was the wrong thing?

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

(LaPierre, supra, para 37)

[44] The prosecution argues that LaPierre and other cases from the Court of Appeal illustrate how Mothy Chheng’s capacity to recount and acknowledge the legal and moral wrongfulness of his act, that his conduct was wrong and would be morally condemned by reasonable members of society, and his words and actions proximate to the offence, suggest not that he lacked the capacity to know at the time of the offence that his conduct was wrong, but the opposite. The prosecution’s argument was that he may have been suffering from a mental disorder at the time, but he was aware of society’s moral standards and acted nonetheless. That, says the prosecution, is criminal responsibility.

[45] The contrary interpretations of Dobson and Oommen that were raised before me, was an issue before Molloy J. in R. v. Minassian 2021 ONSC 1258. I agree with her interpretation and conclusion that an accused cannot be said to “know” something is “wrong” within the meaning of s. 16 if, because of a mental disorder, he lacks the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. (Minassian, supra, para 58)

[46] Molloy J. agreed with the defence that the Court of Appeal decision in Dobson was incorrect in law, inconsistent with the binding decision of the Supreme Court of Canada in Oommen, and inconsistent with other decisions of the Court of Appeal, and declined to follow it (Minassian, supra, para 61), as do I. She held, and I agree, that she was bound to follow the principles articulated in Oommen and did so. (Minassian, supra, para 86)

[47] If, as I have set out, the refusal to grant leave to appeal to the Court of Appeal’s decision, does not elevate it to an implicit pronouncement of the Supreme Court of Canada, then the principle of stare decisis, which binds lower courts to the authoritative precedent of higher courts is determinative:

Common law courts are bound by authoritative precedent. This principle — stare decisis — is fundamental for guaranteeing certainty in the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This is called vertical stare decisis. Without this foundation, the law would be ever in flux — subject to shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo. (R. v. Comeau 2018 1 scr 342 SCC at para 26)

To reiterate: departing from vertical stare decisis on the basis of new evidence is not a question of disagreement or interpretation. For a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must “fundamentally shif[t]” how jurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might change how jurists would answer the same legal question. (Comeau, supra, para 34)

[48] In Carter v. Canada (Attorney-General) 2015 SCC 5, 2015 1 SCR 331 at para 44, the Court wrote:

The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42).

In my view, neither of these two exceptions arise in this case.

[49] In summary, I disagree with the prosecution that the Court of Appeal’s decision in Dobson removes capacity for rational choice from criminal responsibility. That would require me to follow the Court of Appeal’s interpretation of what is meant by knowing an act is wrong that is contrary to that expressed by the Supreme Court of Canada. To do so, I would have to accept that the Supreme Court of Canada’s refusal to grant leave from the Court of Appeal’s decision in Dobson was an implicit acknowledgement by the higher court that the Court of Appeal’s interpretation of Dobson was the proper one. There is no basis, nor any authority provided, to give such a meaning behind such refusal to grant leave to appeal; accordingly, I find that I am bound by the Supreme Court of Canada’s per curiam judgment in Oommen and will apply the principles set out in that case to the facts and evidence before me.

The Chronology of Events

[50] Flex-N-Gate assembles brake parts for automobiles. The assembly line is made up of different stations. During a shift, employees may be assigned to work at the same station the entire shift, may switch positions at a station, or even move to different stations. Different stations, and even different positions at a station have different roles and require different skills. On July 4, 2018, the victim, who was known to her co-workers as “Kham”, worked the first part of her shift at the back station with another worker, Lily Cheung. Ms. Cheung testified that she had worked with Kham a few times but not often. She described that sometimes Kham would not be able to keep up with the pace that she, Lily, worked at. They would assemble the rivet assembly onto the pedal and then cover the brake pad. The next person would then take the housing, hook up the pedals and housing together, and connect them to assemble the brake. The lines keep going non-stop.

[51] Ms. Cheung described how, when she was working that day with Kham, one person would take a part from the pallet, put it on a second machine to cover the paddles, and then the second worker would take the part from the machine while also auditing it to make sure there were no mistakes. The machines on the line are very loud and workers have to wear earplugs. Very little talk goes on, because, as Ms. Cheung explained, there is no time to talk because the line goes so fast. Everything is dependent on the timing at the station. Some of the stations have two people working in tandem. Each station requires different abilities and an ability to handle different speeds and tasks.

[52] Lily Cheung had known the defendant, Mothy Chheng or “Timothy”, for two years since he began working at Flex-N-Gate. She described him as a “medium worker” who makes some mistakes. She did not talk with him unless he had to ask her something. She did not have any problems with him, and he did not see hm have any problems with anyone else or make complaints. She said he was very quiet and did not like to talk.

[53] That day, Kham worked beside Ms. Cheung. Timothy worked at the middle station about four or five feet from Kham. Ms. Cheung recounted that it was very hot and she heard people complaining that Timothy was going to the washroom many times. She testified that she saw Steve, the zone leader, talk to Timothy. She assumed it was about the frequency of his washroom breaks. When she was at her station she would not look around. She explained that there is no time to look around as workers have to face and focus on the machines they are assigned to.

[54] At 9:00 p.m., after the lunch break, Ms. Cheung and Kham went back to their station. She had to grab a part from her side, assemble it, connect the housing and the pedals, and then put the finished part on the conveyer. Ms. Cheung testified that she left her station to retrieve a part when the conveyer stopped. That caused her to look back in the direction of where the Timothy was. He was holding a brake part that had the housing and paddle together and then heard a noise. Ms. Cheung said that Timothy said something like “hey”. She was sure he said something because it caused Kham to turn and look at him. His voice was not angry or happy, but calm. Kham was about four feet from Ms. Cheung to her side. She testified that all of a sudden, Timothy hit Kham hard on her head. His face looked “normal”; neither angry or happy but just calm. He appeared no different than he normally did. Ms. Cheung looked away after the first time Timothy struck Kham. She thought she heard the sound of him hitting her multiple times, maybe four or five times. She said she panicked and did not pay attention to anything else. She then heard her zone supervisor, Steve, yell out “what happened, what happened”.

[55] When Kham fell to the floor Ms. Cheung thought that the defendant stopped hitting Kham. She said that apart from him saying “hey”, Timothy said nothing. Ms. Cheung said she yelled “what happened?”. Timothy then turned around and ran in a different direction and out of sight. She did not see him leave.

[56] Jordan Mondes had known Timothy since he began working at Flex-N-Gate. He described him as really quiet and not really speaking to many people. Mr. Mondes described how would say “hi” to him and he would respond. He sometimes saw the defendant talking with other people, and said he would sometimes see him smiling when talking to other people, but described him otherwise as someone who will not talk to you unless you talk to him first. He had never heard Timothy complain about anyone or anything.

[57] That day, Mr. Mondes saw the defendant at the start of his shift and greeted him. Usually Timothy greeted him back, but that day he did not reply at all. His facial expression that day was the same as every other day.

[58] He recalled that Kham was working with Lily. On July 4th, the assembly line and the stations had Kham working with Lily at one station, Timothy was at the next station and another worker, Angela, was at a third station. Mr. Mondes was working on the assembly line when it went down. He went to speak to the zone leader, Steve, to tell him the line was down and needed to be fixed by maintenance. As Mr. Mondes was on his way back to the line, he got to about 25 to 30 feet away from Timothy when he saw him hitting something. As he got closer, he saw that Timothy was holding a brake part in his hand and hitting Kham. Timothy was making a motion like he was using a hammer. He did that three or four times. Kham was on the ground not saying or doing anything and Timothy was squatting over her. Mr. Mondes saw blood and turned away. He heard the zone leader, Steve, screaming “Timothy, Timothy”, and “stop, stop” and then Timothy stopped hitting Kham. He described how the defendant stopped, walked a bit, then dropped or threw the part on the ground, and walked towards the receiving area and out as if nothing happened. Mr. Mondes testified that Timothy didn’t saying anything. He showed no emotion and no facial expression. He didn’t look angry or upset, just had a blank stare. He looked the same as he always did.

[59] At first, Mr. Mondes thought that the part Timothy used to hit Kham was a different part from the part he was making. After the incident, he was speaking with his co-workers and they told him it was a validation part. Validation parts are bad parts that are painted red and are put through the machines at the beginning of each shift to ensure the line stops if a bad part is detected. It is normally then hung up and not used at any other time. Mr. Mondes testified that the part that the defendant had in his hand had red paint on it.

[60] Angela Vanheeswyk also worked at Flex-N-Gate and knew both the defendant and victim. She assumed he was Cambodian. She described the defendant as very quiet. She never saw him hanging out with other Cambodians. When he wasn’t working, she described that he would sit by himself to smoke or eat. She said that he didn’t speak with anyone. She never saw or heard him causing any problems with anyone or anyone having any problem with him.

[61] On the day in question, she was working at her station when she heard someone say something like “what is he doing?”, or “what is going on?” She looked over and saw Timothy about 30 or 40 feet away with a part in his hand. She could not see Kham as she was behind a shelf. It looked like Timothy had a fully assembled brake pedal in his hand. He was bent down and making motion like he was chopping or using a hammer. When he stopped, he just stood with a blank stare with no sign of anger or upset or any emotion. She testified that he then went back to his station and stood there for a minute. She turned around, and when she turned back, he was gone.

[62] Yehia (Steve) Jaohar was the zone leader. He described the defendant as an average worker. He did not have any problems with him. If the defendant was told to work a particular way he would do it. Other than work conversations, the extent of his conversation with Timothy was to ask how he was, or how his weekend was.

[63] At the time of the incident, Mr. Joahar testified that he was walking by the assembly line and saw Kham on the floor. She had blood on her face and the defendant was standing behind her. He asked Timothy “why [he did] that?” He didn’t received any response, and Timothy’s face had no expression. He testified that the defendant slowly walked by, back and forth, and then walked away. Mr. Chheng looked the same as he did when he was working or eating lunch. Steve called for a supervisor. By the time the supervisor, Brendan McCarthy arrived, the defendant had left and two people were attending to Ms. Sourapha. The supervisor testified that a fully assembled brake pedal, which should have been at the other end of the assembly line, was around where Kham was lying, covered in blood.

[64] It turned out that after Mr. Chheng left, he drove around for a bit, parked, drove some more, then went to McDonalds to get something to eat before going home. Around 2:45 a.m. on July 5, 2018, Mr. Chheng left his house to buy cigarettes. Police had been waiting outside his residence. Shortly after driving from his home, police followed and stopped his vehicle. He was arrested without issue. He was compliant, and appeared to understand the reason for his arrest and his rights to counsel.

The police interview

[65] At 9:21 a.m., some 12 hours or so after having struck Khamphouviene Sourapha repeatedly about the head almost killing her, Mothy Chheng was interviewed by D/C Coulter. He acknowledged that he was at the police station and that he had been arrested for attempt murder. Although there was some initial confusion about whether he exercised his right to counsel and spoken with a lawyer, he agreed that he had and he understood. He providing his name, date of birth, address, height and personal descriptors without difficulty. There was no issue that Mothy Chheng was the person who struck Ms. Sourapha. Police questioning focused on why he did what he did. To the defence, Mr. Chheng’s answers display nothing more than him being able to provide rote, expected responses devoid of understanding that his conduct was legally and morally wrong and devoid of evidence that he had, at the relevant time, the capacity to exercise rational choice about the rightness or wrongness of his act. To the prosecution, Mr. Chheng’s answers demonstrated that he knew exactly what he was doing when he did it and that it was morally and legally wrong.

[66] Given the significance of Mr. Chheng’s responses to the issue of criminal responsibility, I will reproduce significant portions of the exchanges between D/C Coulter and Mr. Chheng. I do so with the caveat that the words on the page do not tell the whole story. Mr. Chheng’s demeanour during the interview was also important to appreciate. At times, his flat affect was in stark contrast to the words he used, and he was emotionally disconnected to the act he had just committed. At other times, the emotions were incongruous with his expressions. Whether they demonstrated a disconnect and the remnants of a lack of capacity to make a rational choice when he repeatedly struck Ms. Sourapha, or revealed his intent and understanding then and now of what he had done, was the subject of much dispute. It might be said that we are no further ahead now than police were then to understand what drove him to commit such a senseless, violent, unprovoked act on an innocent and random victim. That it makes no sense does not mean, however, that it was not without an appreciation, however, basic, that his act was morally and legally wrong.

[67] The officer started the interview by having Mothy Chheng provide some background information, but the questioning soon focussed on trying to understand why he did what he did:

Q: OKAY UM WE HAVE MULTIPLE WITNESSES WHO SAW YOU DO IT. WE HAVE YOU ON CAMERA BEING THERE AT WORK UM SO THERE'S NO DOUBT YOU DID IT. I THINK MY BIGGEST QUESTION IS YOU DON'T SEEM LIKE A BAD GUY, YOU SEEM LIKE A NICE GUY I JUST DON'T UNDERSTAND WHY YOU DID IT? DO YOU UNDERSTAND WHAT I'M SAYING?

A: YES

Q: LIKE WHY'D YOU DO THAT?A: UH I'M NOT SURE I JUST HAD ANGER PROBLEMS

Q: YEAH, LIKE WHAT DO YOU MEAN ANGER PROBLEMS?

A: IT JUST CAME OUT OF - JUST WAS TOO MUCH FOR ME

Q: JUST HAVING A BAD DAY?

A: YEAH, I HAD A BAD DAY

Q: YEAH WE ALL HAVE BAD DAYS I GET THAT. WAS IT HOT IN THERE TODAY?

A: NO

Q: YOU DIDN'T FIND IT TOO HOT OKAY. SO LIKE SO WHAT SPARKED YOU TODAY? WHAT HAPPENED?

A: NOT SURE

Q: NOT SURE? LIKE WAS SOMETHING SAID TO YOU?

A: NO

Q: WHY'D YOU PICK ON HER?

A: UH I DON'T KNOW

Q: NO? SO YOU JUST LIKE WHAT DID YOU DO - LIKE I KNOW WHAT YOU DID JUST EXPLAIN TO ME WHAT DID YOU DO?

A: I WAS JUST WORKING AND I PULLED THE PART OUT - OUT OF THE LINE AND STARTED HITTING HER

Q: LIKE HOW MANY TIMES DID YOU HIT HER?

A: A COUPLE TIMES

Q: WELL WE KNOW YOU DID MORE THAN THAT. OKAY SO YOU SAID YOU HAVE ANGER ISSUES? IS THAT TRUE?

A: YEAH

Q: HOW LONG HAVE YOU HAD THAT?

A: NOT TOO LONG AGO

Q: THERE'S A CERTAIN TIME IN YOUR LIFE WHEN THIS HAPPENED DID SOMETHING CHANGED?

A: UH NOT REALLY

Q: NO?

A: NO

Q: BECAUSE LIKE I SAID YOU SEEM LIKE A REALLY NICE GUY I JUST CAN'T FIGURE OUT WHAT WOULD CAUSE YOU – A NICE GUY LIKE YOU TO HURT SOMEBODY SO BADLY?

A: YEAH

Q: YOU THOUGHT IT WOULD BE A GOOD IDEA?

A: NO IT WASN'T

Q: SORRY?

A: IT WASN'T

Q: IT WASN'T A GOOD IDEA?

A: NO

Q: NO YOU'RE RIGHT IT WASN'T YOUR BEST DECISION UM BUT YOU UNDERSTAND WHAT YOU DID RIGHT?

A: YES

Q: NOW WHAT DID YOU DO?

A: I HAD A PART AND I JUST STARTED HITTING HER

Q: WHERE'D YOU HIT HER?

A: ON THE FACE AND THE HEAD

Q: YOU NOT LIKE HER FACE?

A: UH IT - NO, NO

Q: NO WHAT?

A: NO

Q: NO? I JUST ASKED YOU A QUESTION DID YOU NOT LIKE HER FACE YOU SAID NO YOU DIDN'T LIKE HER FACE OR THAT'S NOT THE REASON?

A: THAT'S NOT THE REASON

Q: OKAY RIGHT. YEAH IF YOU DON'T UNDERSTAND A QUESTION I'M ASKING YOU PLEASE FEEL FREE TO ASK ME TO ASK IT IN A DIFFERENT WAY OR CLARIFY IT

A: OKAY

Q: IS THAT COOL?

A: YES

Q: OKAY ALRIGHT SO, SO WE KNOW YOU DID IT - YOU'RE SAYING YOU DID IT

A: YES

Q: WE DON'T KNOW WHY YOU DID IT LIKE, LIKE LET'S TALK ABOUT THAT. SO YOU WENT TO WORK TODAY. WHAT TIME

DID YOU START WORK TODAY?

A: UH 3:30

Q: 3:30 OKAY. SO YOU GO TO WORK WERE YOU IN A GOOD MOOD?

A: UM NOT REALLY

Q: JUST YOU WERE IN A BAD MOOD OR?

A: YEAH

Q: OR SOMETHING HAPPEN TODAY?

A: IT WAS JUST THE DAY

Q: JUST A BAD DAY TODAY?

A: YEAH

Q: SO LET'S TALK ABOUT YOUR DAY. SO WHAT TIME DID YOU WAKE UP TODAY?

A: UM LIKE NOON TIME

Q: NOON?

A: YEP

Q: SO WHAT DID YOU DO YOU GOT UP WHAT DID YOU DO?

A: DID SOME CHORES

Q: LIKE WHAT? WHAT'D YOU DO?

A: UM SOME GROCERIES

Q: WHERE'D YOU GO FOR GROCERIES?

A: ACTUALLY NO I WENT TO LIKE I WENT SHOPPING

Q: SHOPPING?

A: YEAH

Q: TO BUY CLOTHES?

A: YEAH BUY CLOTHES

Q: WHAT'D YOU GET?

A: UM TWO SHORTS

Q: WHAT KIND OF SHORTS ARE YOU INTO?

A: SHORTS JUST NORMAL BASKETBALL SHORTS

Q: OH YOU LIKE BASKETBALL SHORTS YEAH YOU INTO BASKETBALL?

A: YEAH

Q: SO WHAT TIME DID YOU GO SHOPPING?

A: UM ABOUT 2

Q: 2?

A: OR 1:30

Q: WHERE'D YOU GO?

A: UH VAUGHN MILLS

Q: OH YOU WENT DOWN THERE? SO YOU WENT DOWN THERE WHAT TIME DID YOU COME BACK?

A: 2:30ISH

Q: 2:30? WHAT TIME DO YOU START WORK?

A: 3:30

Q: SO YOU HAD TIME TO GET HOME?

A: YEP

Q: SOUNDS LIKE YOU HAD A GOOD DAY SO FAR LIKE YOU SAID YOU WEREN'T HAVING A GOOD DAY LIKE WHAT POINT, WHAT PART OF THE DAY STARTED SUCKING?

A: UM I DON'T KNOW

Q: DO YOU FEEL LIKE THIS ALL THE TIME OR JUST SOMETIMES?

A: NO IT'S JUST THAT TIME

Q: LIKE TODAY?

A: SOMETIMES TOO

Q: EVERYONE'S GOING TO WANT TO KNOW. YOU'RE GOING TO BE ASKED IT AGAIN SO WE MIGHT AS WELL CLEAR IT UP

NOW. SO DO YOU NOT LIKE THIS LADY?

A: UH NOT REALLY

Q: YOU DIDN'T LIKE HER?

A: NO

Q: WHY?

A: I DON'T KNOW I JUST DON'T WANT TO WORK WITH HER

Q: OKAY WHY? LIKE DID SHE DO SOMETHING YOU DIDN'T LIKE OR?

A: JUST TOO MUCH WORK FOR ME, I'D RATHER JUST WORK AND THEN WORK ON THE LINE INSTEAD OF HELPING HER AND STUFF

Q: OKAY SO SHE NEEDED HELP?

A: NO SHE DIDN'T NEED HELP BUT IT WAS JUST SHE WAS BEING TALKATIVE AND STUFF

Q: SO I DON'T KNOW - LIKE I KNOW WHERE YOU WORK BUT I DON'T REALLY KNOW YOU'RE JOB SO WHY DON'T YOU EXPLAIN TO ME WHAT YOU DO?

A: FOR MY JOB?

Q: SURE

A: JUST ASSEMBLY LINE, GENERAL LABOUR MAKING AUTOMOTIVE PARTS

Q: OKAY SO WHAT EXACTLY WERE YOU DOING AT WORK BEFORE THIS HAPPENED?

A: TODAY BEFORE WORK?

Q: NO, NO AT WORK WHAT WERE YOU DOING AT WORK TODAY LIKE DON'T YOU HAVE DIFFERENT STATIONS?

A: UM YEAH

Q: WHAT WERE YOU DOING?

A: UM I WAS WORKING ONE STATION AND THEN I GUESS I DIDN'T LIKE THAT STATION SO I KIND OF JUST WORKED WELL WE HAD TO

Q: SO YOU JUST DIDN'T LIKE THAT STATION TODAY YOU WERE AT LIKE BEFORE BREAK OR AFTER BREAK?

A: IT WAS AFTER BREAK

Q: OKAY SO AFTER BREAK YOU'RE AT THIS STATION YOU FINISHED THE DAY AT?

A: UM YEAH

Q: OKAY SO YOU'RE AT THAT STATION SO TELL ME WHAT HAPPENED, YOU'RE WORKING AWAY AND THEN WHAT HAPPENED?

A: WORKED AND THEN KIND OF GOT LIKE JUST I DON'T KNOW AS THEIR - IT JUST CAME OUT OF NO WHERE KIND OF LIKE HAD TO WALK AROUND AND THEN I DON'T KNOW

Q: OKAY SO YOU HAD TO WALK AROUND THEN WHAT HAPPENED?

A: AND THEN JUST DOING MY WORK KIND OF GOT PISSED OFF AT THE DAY

Q: YEAH OKAY, I GET THAT. SO YOU GET PISSED OFF AND THEN WHAT HAPPENED THEN?

A: I TOOK THE PART AND THEN I JUST HIT HER

Q: HOW DOES THAT MAKE YOU FEEL?

A: I FEEL BAD BUT - YEAH

Q: YOU SAID THE BUT WHAT DOES THE BUT MEAN?

A: WHAT CAN YOU DO WHEN YOU'RE MAD RIGHT? WHEN THE DAY GOES BAD

Q: I GOT A FEW THINGS THAT YOU CANNOT DO RIGHT. HOW ARE YOU FEELING RIGHT NOW?

A: I FEEL OKAY

Q: THAT'S GOOD WE TREATING YOU OKAY?

A: YEAH, JUST CALM

Q: SO WHEN THIS HAPPENED HOW DID YOU FEEL AT THAT TIME YOU SAID YOU WERE MAD BUT WHAT WAS THE FEELING YOU WERE FEELING?

A: JUST UM I DON'T KNOW JUST STARTED GETTING TIRED AND I DIDN'T WANT TO WORK NO MORE SO THAT'S JUST WHAT HAPPENED JUST WENT TOWARDS HER AND -

Q: OH THAT'S WHEN IT HAPPENED YOU SAID?

A: YEAH

Q: SO YOU DIDN'T WANT TO WORK ANYMORE AND YOU WENT TOWARDS HER I JUST WANT TO MAKE SURE YOU'RE TALKING A LITTLE LOW WE'RE BEING RECORDED SO I WANT TO MAKE SURE I CAN - I'M GETTING WHAT YOU'RE SAYING RIGHT I DON'T WANT TO MISUNDERSTAND WHAT YOU'RE SAYING ALRIGHT MAKE SENSE?

A: YEP

Q: OKAY, OKAY. HAVE YOU FELT LIKE THIS BEFORE?

A: UH NO

Q: OKAY SO YOU JUST HAD A REALLY BAD DAY?

A: YEAH

Q: IF YOU COULD APOLOGIZE, WOULD YOU APOLOGIZE?

A: YEP

Q: OKAY WELL THERE'S A CAMERA RIGHT THERE YOU WANT TO APOLOGIZE TO THE CAMERA SHE'LL PROBABLY GET TO SEE IT ONE DAY. YOU WANT TO SAY ANYTHING TO HER?

A: SORRY

Q: YOU'RE SMILING. DON'T LOOK AT ME LOOK AT THE CAMERA AND SAY SORRY

A: SORRY

Q: SORRY FOR WHAT?

A: FOR WHAT HAPPENED

Q: WHAT DID YOU DO?

A: THAT I HIT HER

Q: WELL WHY DON'T YOU SAY SORRY TO HERA: SORRY THAT I HIT YOU

Q: YOU'RE SMILING AGAIN

A: AT WORK. SORRY THAT I HIT YOU AT WORK

Q: YOU'RE SMILING

A: SORRY THAT I HIT YOU AT WORK

Q: OKAY SO WELL SO AFTER THIS HAPPENED WHAT DID YOU DO?

A: UM KIND OF JUST WANDERED AROUND IN WORK AND I JUST LEFT

Q: JUST LEFT THE BUILDING?

A: YEAH

Q: WHERE DID YOU GO OUT OF LIKE WHAT DOOR?

A: UH WENT TO THE BACK

Q: BACK DOOR?

A: YEAH

Q: WHY'D YOU GO OUT THE BACK DOOR? IS THAT THE WAY YOU USUALLY HEAD OUT?

A: NO I JUST WENT FOR A COOL OFF AND THEN I'M LIKE I'M GOING TO GO HOME I'M GOING TO FORGET IT

Q: SO, SO YOU WALK OUT THE BACK DOOR WHAT DID YOU DO THEN?

A: UM JUST FOUND A PLACE TO REST FOR A BIT

Q: WHERE DID YOU GO?

A: I WENT TO THE SOCCER PLACE CLOSE, CLOSE BY THE CHURCH JUST CHILLED THERE FOR A BIT

Q: OKAY GOOD. SO HOW LONG WERE YOU THERE FOR?

A: UM JUST FOR A COUPLE - FOR LIKE A WHILE KIND OF RESTED THERE FOR A BIT

Q: OKAY SO A WHILE IS THAT HALF AN HOUR?

A: LIKE AN HOUR OR SO

Q: AN HOUR?

Q: SO WHAT'D YOU DO THEN?

A: UH WANDERED AROUND JUST, JUST KIND OF BEING ACTIVE LIKE GET BUSY. I WAS JUST BORED

Q: YEAH OKAY

A: AND THEN I WENT HOME AFTER THAT

Q: SO YOU WERE WANDERING AROUND OUTSIDE THE CAR OR WERE YOU DRIVING AROUND?

A: DRIVE AROUND

Q: OKAY SO WHERE'D YOU GO - SO YOU LEAVE THE SOCCER FIELD WHERE DID YOU GO?A: UM I JUST WENT LIKE DIFFERENT AREA JUST WANDERED AROUND THERE

Q: SO YOU DROVE AROUND FOR A LITTLE BIT. HOW LONG DO YOU THINK YOU WERE DOING THAT FOR?

A: FOR LIKE A COUPLE HOURS

Q: OKAY SO YOU'RE DRIVING AROUND FOR A LITTLE BIT AND THEN WHAT DID YOU DO THEN?

A: I WENT HOME AFTER

Q: SO YOU WENT HOME. WHEN YOU GO HOME WHAT DO YOU DO?

A: UM JUST HANG AROUND AT HOME

Q: DID YOU WATCH TV? OR WHAT'D YOU DO?

A: UH JUST CHILLED, JUST HAD MY UH DINNER

Q: WHAT'D YOU HAVE?

A: MCDONALDS

Q: SO YOU WENT TO MCDONALDS TOO?

A: YEAH

A: NO I JUST ATE AND THEN WENT - I JUST STAYED THERE AND THEN I DECIDED TO GO OUT FOR LIKE A SMOKE AND

THEN I NOTICED THAT I HAD NO SMOKE SO I WENT TO DRIVE FOR -

Q: OH OKAY SO YOU WENT TO GO OUTSIDE YOUR HOUSE TO HAVE A SMOKE AND THEN YOU REALIZED YOU HAD NO SMOKES?

A: YEAH AND THEN I JUST WENT OUT

Q: SO YOU WENT OUT THE HOUSE AND THEN WHAT DO YOU DO?A: I WENT TO GO GET SOME SMOKES AFTER BUT –

Q: UM DID YOU CHANGE?

A: UH YEAH

Q: SO WHAT DID YOU CHANGE FROM?A: FROM MY WORK CLOTHES

OKAY SO I'M JUST GOING TO SUMMARIZE THIS SO YOU'VE NEVER FELT LIKE THIS BEFORE?

A: YEAH

Q: YOU HAVE OR YOU HAVEN'T?

A: UH NO JUST A BAD DAY

Q: AND UM LIKE DID YOU KNOW THIS LADY?

A: UM WE TALK SOMETIMES

Q: SO LIKE DID YOU GET MAD AT HER BEFORE?

A: UH NO

Q: OKAY SO WAS SHE OKAY?

A: SHE WAS OKAY ON THE DAY AND I DON'T KNOW AS THE DAY WENT BY I JUST KIND OF GOT MAD AND LIKE TIRED TO WORK

Q: OKAY

A: JUST FROM WORK (INAUDIBLE)

Q: SO WAS IT HER FAULT?

A: NO IT'S NOT HER FAULT IT WAS JUST ME

Q: ALRIGHT. I STILL DON'T GET IT. I DON'T KNOW WHY YOU PICKED ON HER AND THAT'S WHY I'M KIND OF IN HERE. I JUST WANT TO KNOW WHY YOU PICKED ON HER LIKE SHE SEEMS LIKE A NICE LADY RIGHT?

A: YEAH

Q: AND SHE'S PRETTY BADLY HURT AND YOU KNOW WHEN WE HURT PEOPLE WE DON'T JUST HURT THEM WE HURT

THEIR FAMILIES

A: YEAH

Q: RIGHT. DO YOU KNOW WHERE SHE WAS FROM?

A: PARDON

Q: DO YOU KNOW WHERE SHE WAS FROM?

A: NO

Q: HOW WOULD YOU DESCRIBE HER?

A: AS A PERSON?

Q: UM YEAH LIKE IF YOU WERE GOING TO TRY TO - IF YOU'RE GOING TO TRY AND HELP ME FIND HER IN A CROWD HOW

WOULD YOU DESCRIBE HER?

A: A WONDERFUL LADY I GUESS

Q: YEAH BUT HOW DOES SHE LOOK? SO YOU'RE TRYING TO GET ME TO FIND HER IN A CROWD OF PEOPLE HOW WOULD

YOU DESCRIBE HER TO ME SO I COULD FIND HER?

A: HMM JUST NORMAL PERSON THAT YOU SEE AROUND

Q: YEAH BUT THAT WOULDN'T HELP ME. LET'S SAY THERE WAS ONE HUNDRED PEOPLE HOW WOULD I FIND HER IN

THAT CROWD? CAN YOU DO THAT? ARE YOU ABLE TO DESCRIBE WHAT SHE LOOKS LIKE?

A: MM

Q: TAKE A MINUTE YOU DON'T HAVE TO DO IT RIGHT AWAY JUST THINK ABOUT IT YOU KNOW CLOSE YOUR EYES AND TRY TO REMEMBER WHAT SHE LOOKS LIKE AND THEN TELL ME WHAT SHE LOOKS LIKE

A: HER I GUESS

Q: YES SHE WOULD LOOK LIKE HER BECAUSE SHE IS HER. DO YOU UNDERSTAND WHAT I'M ASKING YOU?

A: YEAH

Q: I'M JUST ASKING YOU CAN YOU DESCRIBE WHAT SHE LOOKS LIKE?

A: UM NO

Q: HOW TALL IS SHE?

A: PROBABLY LIKE 5'9

Q: 5'9 SO A FAIRLY TALL WOMAN

A: MHM

Q: WHAT COLOUR WAS HER HAIR?

A: BLACK

Q: OKAY WAS SHE A BIG LADY OR THIN LADY OR?

A: SHE'S A BIG LADY

Q: OH SO WAS SHE FAT?

A: MMM YOU COULD SAY

Q: HOW OLD WOULD YOU SAY SHE WAS?

A: UM NOT SURE FORTIES

Q: SO OLDER THAN YOU?

A: YEAH

Q: OKAY SO I GUESS ONE OF THE THINGS I'M ASKING YOU IS DID YOU HAVE IT IN FOR HER? DID YOU NOT LIKE WHO SHE WAS OR WHO HER RACE WAS?

A: YEAH I WAS JUST DIDN'T LIKE WHO SHE WAS

Q: IS THAT ALL THE TIME OR TODAY?

A: SOMETIMES WHEN WE TALK IT'S JUST I DON'T WANT TO TALK TO HER RIGHT AND JUST FOCUS ON WORK BECAUSE WE'RE WORKING ON PRODUCTION

Q: NO I GET THAT TOO YOU JUST WANT TO GET ON WITH WORK

A: YEAH

Q: DO YOU LIKE YOUR JOB?

A: YEAH IT'S GOOD

Q: OKAY SO, SO ONE MORE TIME WHY DID YOU DO IT? WHY DID YOU HIT HER?

A: JUST A BAD DAY

Q: WAS IT BECAUSE SHE WAS FROM WHERE SHE WAS?

A: NO

WAS IT BECAUSE SHE'S A WOMAN?

A: NO

Q: IS IT BECAUSE SHE'S OLDER THAN YOU?

A: NO

Q: IS IT BECAUSE SHE'S FAT?

A: NO

Q: OKAY SO HAVE YOU EVER THOUGHT OF DOING THIS BEFORE?

A: MM NO

Q: SO WHAT BROUGHT IT ON TODAY?

A: UM JUST THE DAY

Q: WE ALL HAVE BAD DAYS I GET THAT WE ALL HAVE BAD DAYS BUT WHAT ABOUT TODAY WHAT SPARKED THAT THING

IN YOU TODAY THAT MADE YOU DO THIS?

A: NOTHING

Q: NOTHING?

Q: OKAY SO HAVE YOU THOUGHT ABOUT DOING THIS BEFORE?

A: NO

Q: OKAY. DO YOU THINK YOU WOULD DO IT AGAIN?

A: UM NO

Q: NO? WHY NOT?

A: UM I'M NOT - NO, NOT SURE

Q: YOU'RE NOT NO, YOU'RE NOT SURE? OKAY LET'S TRY THAT AGAIN NOT REALLY A CLEAR ANSWER. WOULD YOU DO

IT AGAIN?

A: NO

Q: OKAY, ALRIGHT, OKAY. SO JUST TO CLARIFY THE LAST QUESTIONS I ASKED YOU YOU HAVEN'T THOUGHT OF DOING THIS BEFORE IS THAT TRUE?

A: NO?

Q: NEVER?

A: NO

AND YOU SEE THE LADY AND YOU WALKED UP TO HER. TELL ME AGAIN WHAT YOU DID?

A: I HIT HER

Q: OKAY WHY DID YOU HIT HER?

A: JUST FELT LIKE IT

Q: WHAT DID YOU THINK WOULD HAPPEN?

A: NOTHING JUST ME

Q: SORRY?

A: I JUST FELT - WANTED TO HIT HER

Q: OKAY SO WHAT DID YOU THINK WOULD HAPPEN WHEN YOU DID THAT? WHAT DID YOU THINK WOULD HAPPEN WHEN YOU HIT HER? LIKE YOU UNDERSTAND WHAT I'M ASKING YOU? LIKE YOU HIT HER LIKE WERE YOU TRYING TO STOP SOMETHING?

A: NO

Q: OKAY LIKE DID YOU REALIZE IF YOU HIT HER SOMETHING MIGHT HAPPEN?

A; YEAH

Q: WHAT DID YOU THINK MIGHT HAPPEN?

A: SHE'S DEAD

Q: OKAY SO IS THAT WHAT YOU WANTED?

A: UH SOMEWHAT

Q: PARDON?

A: SOMEWHAT

Q: DID YOU SAY SOMEWHAT?

A: YEAH

Q: OKAY AND SO WHEN YOU HIT HER LIKE EXPLAIN ME WHAT YOU MEAN BY SOMEWHAT?

A: JUST I WANTED TO JUST HIT HER

Q: NO YOU SAID THAT ALREADY AND THEN YOU SAID YOU KNEW WHAT WOULD HAPPEN RIGHT?

A: YEAH

Q: NOW TRY TO EXPLAIN TO ME A BIT BETTER SO YOU WENT UP TO HER AND YOU HIT HER OKAY YOU KNOW WHAT WOULD HAPPEN IF YOU HIT HER. WHAT - DO YOU UNDERSTAND WHAT I'M ASKING YOU?

A: YEAH

Q: OKAY SO CAN YOU ANSWER THE QUESTION?

A: JUST WANTED TO DO IT

Q: DO WHAT?

A: JUST HIT HER

Q: FOR WHAT REASON?

A: JUST WANTED TO I DON'T KNOW HIT HER I GUESS

Q: I KNOW YOU KEEP SAYING THAT. WE KNOW THAT AND WE UNDERSTAND THAT BUT WHY DID YOU HIT HER? WHAT WAS YOUR - WHAT DID YOU WANT TO SEE HAPPEN?

A: UH JUST HER INJURED OR DEAD

Q: THAT'S WHAT YOU WANTED?

A: YEAH

Q: OKAY I THINK WE'RE ABOUT DONE. YOU OKAY?

A: YEAH

Q: SO HOW ARE YOU FEELING RIGHT NOW?

A: OKAY.

Q: ALRIGHTY SO YOU FEEL OKAY. UM LIKE HOW DO YOU FEEL ABOUT HURTING THE LADY?

A: FEEL BAD

Q: YEAH WHY DO YOU FEEL BAD?

A: JUST CAUSE SHE'S JUST A GOOD WORKER I GUESS

[68] It is clear that Mr. Chheng is able to recount what he did that day. Before going to work he was able to do tasks that involved choice. Approximately eight hours before the incident, he got up, chose to go shopping, drove to a mall, and into a store. He selected and bought clothes. He was able to exercise choice then. There was no suggestion he shoplifted. He had the capacity to choose between paying for the goods he wanted and just leaving, and it could be argued that he was able to recognize that the morally right or expected thing to do was pay for his purchases. He was able to drive home and then prepare and get to work in time for his shift. After striking Ms. Sourapha, he left the scene. The words he uses to explain why he leaves, because he would be arrested or go to jail, suggested, on the surface, that he knew the consequences of his conduct. His statements could also be seen as supporting, on the surface, that that he knew at the time he was striking Ms. Sourapha that he knew it was legally and morally wrong. The defence, however, argues that his words and actions are only evidence of rote knowledge not evidence of a capacity to exercise rational choice over his actions at the relevant time

The Assessment of Criminal Responsibility

[69] The assessment ordered to determine whether Mothy Chheng was, at the time of the commission of the offence, suffering from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1) of the Criminal Code was conducted by Dr. Woodside. He was provided with the police synopsis, police interviews, including those with the defendant, occurrence reports relating to Mr. Chheng, July 6, 2018 email from Brendan McCarthy, documents from Flex-N-Gate regarding Mr. Chheng, reports from Dr. Derek Pallandi, who had been retained by the defence to provide an opinion on Mr. Chheng’s fitness to stand trial and later a preliminary opinion on his criminal responsibility, Humber River Regional Hospital Records of Mr. Chheng’s prior hospitalizations, records from Mr. Chheng’s family physician Dr. Mandel and finally records from Mr. Chheng’s time at the Waypoint Mental Health Centre following his arrest and subsequent fitness assessment and treatment order. As part of his assessment, Dr. Woodside arranged for Mr. Chheng to undergo psychological testing by Dr. Heasman, and had Danielle Valeriote conduct interviews with family members and friends to provide collateral information about Mr. Chheng. Dr. Woodside also met with Mr. Chheng for 9.25 hours over four days between January 29, 2020 and February 7, 2020.

[70] As part of the NCR hearing, the Crown tendered Mr. Chheng’s statement and played the video recording of his interview with D/C Coulter. Dr. Woodside was the only witness called on the NCR hearing. The collateral information he referred to, and considered, in coming to his opinion was admissible for that purpose without the necessity of calling the authors. Any reference I make to the collateral information should be taken with that caveat in mind.

[71] Dr. Woodside diagnosed Mr. Chheng with schizophrenia. It was his opinion, on a balance of probabilities, that at the time of the offence, that the debilitating affects of his mental illness rendered him incapable of knowing that what he was doing was morally wrong as he lacked the capacity, because of psychosis, to make a rational choice whether to act or not. Mr. Chheng’s words and actions after the incident demonstrated rote knowledge, but not capacity to exercise rational choice at the time. That is the only lens that I have been provided, and while I am not required to accept it, I do. Dr. Woodside scrutinized and explained Mr. Chheng’s words and actions that seem on the surface to be incongruous with someone who lacked that capacity and not criminally responsibility, and I find on a balance of probabilities that he did not have the capacity to know right from wrong and exercise a choice to act because of the psychotic affects of his schizophrenia at the time.

The Emergence of Mental Illness in Mothy Chheng

[72] At the time of the assessment, Mothy Chheng was 29 years old and, by then, had been at Ontario Shores Forensic Rehabilitation Unit for four to five months on a “keep fit” order. He was being treated with olanzapine and Cogentin with no reported side effects. Prior to his arrest, he was living with his cousin’s family in Bradford.

[73] Dr. Woodside detailed Mr. Chheng’s history from the collateral material and his interviews with Mr. Chheng. It is important to set out that history because it illustrates the emergence and progression of Mr. Chheng’s mental illness.

[74] Mothy Chheng was born on January 3, 1991 in Toronto and raised there. His parents divorced when he was 6 years old. He had very little contact with his father who passed away in 2016 or 2017. He has one older brother who he has had limited contact with. His mother stopped working when he was about six years old due to her feeling “sore”. The family was supported through welfare and then she received disability.

[75] Mr. Chheng was described by family as a quiet child. He described himself as shy but had a “normal” number of friends growing up. He was active in sports, played basketball and volleyball on school teams and hockey for fun. When asked during the assessment if he had any interests or hobbies, he said he had none. In the three years prior to the offence, he had not been involved in any romantic relationship. What intimate relationships he did have in the past were very limited.

[76] He completed Grade 12 and stated his grades were mostly B’s. He failed Grade 12 math but never failed a full year of school. He was never identified with a learning disorder or ADHD, nor was he ever in special education or behavioural classes. He was never suspended or expelled and reported a good relationship with his teachers. He told Dr. Woodside that he enjoyed going to school, stating he liked learning.

[77] After high school, he attended Humber College for cabinet-making but left after one semester. He told Dr. Woodside that he stopped attending class during his second semester after hitting his head on the ground while snowboarding. This apparently took place in 2015. While there is no doubt Mr. Chheng did suffer a head injury while snowboarding, it is not clear that his difficulties at school were related to the head injury or the emergence of issues with his mental health. Dr. Woodside testified that over time those suffering from schizophrenia would experience a cognitive decline and increased difficulty managing school or employment. Mr. Chheng fits that profile.

[78] Mothy Chheng’s employment history mostly involved general labour. He reported having ten jobs, the longest of which was at No Frills where he worked for three years before leaving to find a higher paying job. He worked at Flex-N-Gate for 2 ½ years prior to his arrest. His employment at Flex-N-Gate was without any major issues. He reported being spoken to about the poor quality of some of his work but was never docked pay or suspended as a result. The only other instance where he had engaged in any kind of violent conduct at work was at a grocery store was when a co-worker wouldn’t stop playing with his head so he pushed him away and a fight ensued. Mr. Chheng was fired as a result. At Flex-N-Gate, he didn’t argue or have issues with any of his co-workers and thought he would be described as a “reliable” employee.

[79] When Mr. Chheng was 25 years old he was hospitalized with his “first psychotic episode”. His mother told staff then that in the three years prior, her son had had difficulty maintaining work even when the work was menial and simple. When asked about this, Mr. Chheng agreed that he had difficulty keeping jobs, but his explanation was that “[he] just didn’t feel like working”.

[80] Until July 4, 2018, the extent of Mr. Chheng’s criminality was stealing candy when he was between the ages of 16 and 26, and selling marijuana primarily to friends when he was between 18 and 21 years old. He reported that he did this to finance his own 2 gram per day marijuana habit but said he stopped when he began working regularly.

[81] At age 20, he reported being caught by police smoking marijuana near a school. At age 22, he was arrested for possession of marijuana for the purpose of trafficking. He had 5 grams of marijuana on him but denied being involved in selling drugs at that time. The marijuana was confiscated and he was let go. He acknowledged this incident took place while in his car with a friend which was consistent with police reports. He was also caught smoking marijuana in a car with four others at age 23 but was never charged.

[82] Police occurrence reports from April 2010 and December 2010 identified Mr. Chheng as having been caught using marijuana in parking lots. On both occasions, the drugs were destroyed and Mr. Chheng (and another individual) were unconditionally released. According to another police occurrence report from July 2, 2012, Mr. Chheng was stopped by police after being observed speeding in a car. He was described as having a strong odour of alcohol on his breath. He was given a three-day suspension and an offence notice for speeding.

[83] Mr. Chheng’s use of marijuana continued up to his arrest. His own estimates of his daily marijuana use varied from 2 grams per week to 3 to 4 grams daily while working at Flex-N-Gate. Dr. Woodside did not consider his marijuana use to be a cause of his psychosis.

Past Psychiatric History

[84] Mr. Chheng’s medical records, including his psychiatric history, assessments and opinions ultimately provided, were not admitted as expert opinions in and of themselves, but part of the historical record considered by Dr. Woodside and, to the extent relied upon by him, considered as part of his ultimate opinion of Mr. Chheng’s criminal responsibility. In referencing them, I am not elevating them to expert opinion, but to the extent they were relied upon by Dr. Woodside in coming to his ultimate opinion, they provide a compelling picture of the emergence of Mr. Chheng’s mental disorder to index offence.

[85] On October 29, 2014, Mr. Chheng saw his family doctor complaining of feeling depressed and being worried about having Alzheimer’s disease. When seen on December 4, 2014, it was noted that Mr. Chheng had been seen by Dr. Cooper, a psychiatrist, who felt he may have had a concussion secondary to a closed head injury 2 years earlier. An MRI was recommended with a referral to a neurologist.

[86] Dr. Cooper’s consultation note from December 3, 2014 was included. He noted how Mr. Chheng presented with feelings of anxiety and tension which he related to a snow-boarding accident. Mr. Chheng reported having been briefly unconscious but did not seek any medical attention at the time. He reported ongoing issues with focus, memory and concentration. This was the first time Mr. Chheng had seen a psychiatrist. Dr. Cooper noted that he was “distant emotionally” and somewhat anxious and tense. There was no evidence of thought or perceptual disorder. He diagnosed a “possible brain syndrome with anxiety and tension” and recommended he see a neurologist.

[87] A subsequent note from January 16, 2015 indicated that an MRI was normal. Mr. Chheng complained of daily headaches with blurred vision. He was referred to a neurologist, Dr. Ranalli.

[88] Dr. Ranalli’s consultation note, dated May 14, 2015 noted that Mr. Chheng received a head injury while snowboarding two years earlier, striking his head hard on the ground after a fall. There was no clear loss of consciousness, but he felt bad and developed a strong headache which gradually diminished over months afterwards. He returned to Humber College but had trouble concentrating, was forgetful and was not able to complete his course and quit. Mr. Chheng reported ongoing symptoms including forgetfulness, daily headaches, and bitemporal steady pain without migraine features, along with blurring of vision. The neurological examination was unremarkable. His symptoms were described as compatible with a grade II closed head injury.

[89] In speaking with Dr. Woodside, Mr. Chheng believed his first psychiatric involvement was with Dr. Cooper in 2015 or 2016. On his account, he was referred by his family doctor, “just to see how I am…I asked for a review of myself.” He could not remember what was happening at that time. He saw Dr. Cooper on one or two occasions and underwent an MRI. He then clarified that these visits were about one year after his snowboarding incident. He did not recall any abnormalities on the MRI. He eventually reported Dr Cooper may have diagnosed him with schizophrenia although no treatment or medication was recommended. He did not report seeing any other psychiatrist or mental health professional between seeing Dr. Cooper and his arrest.

[90] Mr. Chheng’s recollection of when the snowboarding accident happened may well have been inaccurate according to the collateral information, and may have happened in 2012 and not 2015. He told Dr. Heasman, who conducted the psychological testing, that after the accident, his mood declined, he engaged in laziness, and there were changes in his memory. Dr. Woodside noted that Mr. Chheng claimed to him that the symptoms from the fall dissipated on their own and denied any change in his personality or behaviour. Dr. Woodside observed that Mr. Chheng’s account contrasted with the collateral information that indicated that he was seen by his family physician, Dr. Mandel, a psychiatrist, Dr. Cooper, and a neurologist, Dr. Ranalli, due to ongoing symptoms thought to be related to this head injury.

[91] In 2016, Mr. Chheng, then 25 years old, was admitted to Humber River Regional Hospital on a Form 1 following a psychotic episode. A report dated May 4, 2016 from Dr. Stefaniu indicated that Mr. Chheng’s mother had reported that in the weeks prior to his hospitalization, he had been showing signs of mental and physical decline. He complained of headaches and difficulty sleeping. She reported that he appeared more isolated and seemed to respond to internal stimuli.

[92] A Toronto Police Occurrence Report from May 4, 2016 detailed Mr. Chheng’s mother’s description of his behavior. She noted how since he had ear surgery three months earlier, he “no longer acts himself.” He had constant headaches and difficulty sleeping. On occasion, his mother slept next to him to help him sleep but he would wake her up at all hours “in a paranoid state”. He told her that “he hears noises outside and sometimes voices in his head.” His mother reported she would find her son talking to himself, sometimes yelling and swearing with himself as if he was arguing with someone. Once she heard him say to himself “don’t order me.” On May 1, 2016, Mr. Chheng’s mother told her son she wanted to take him to the family physician for his headaches. Mr. Chheng refused and became angry. He then started talking to himself and went into his room and started shooting his pellet gun at the wall. He then came out of his room and walked around their apartment in an agitated state, throwing items around and breaking them. After his mother began to cry, he calmed down and apologized. Several days later, he was seated in the apartment when “for no apparent reason Mothy got up from his chair, with a knife in his hand, and started walking around the apartment menacingly with the knife.” He did not threaten his mother with the knife but had what she called a “crazy face”. When his mother called 911, her son left the apartment. When he returned, he agreed to accompany paramedics to Humber River Regional Hospital where he was placed on a Form 1.

[93] When interviewed at the time, he told Dr. Stefaniu that he met Dr. Cooper once the previous year but no diagnosis was made or treatment offered. Dr. Stefaniu described Mr. Chheng as having a “flat affect, looking detached and paranoid…” Dr. Stefaniu noted he had dropped out of college after one year, citing a lack of money although he was on OSAP. He had not been able to sustain work for any meaningful period even if of a menial and relatively simple nature. Mr. Chheng was admitted to hospital with a diagnosis of first episode of psychosis or mood disorder.

[94] According to a discharge summary between May 4-11, 2016 Mr. Chheng had presented with a history of decline in mental status for 2-3 months, erratic behaviour at home, social isolation and poor functioning. Once admitted to hospital, he was described as vague and guarded; he completely dismissed all concerns and denied any psychotic symptoms. He refused treatment with antipsychotic medication. During a family meeting with his mother, she noted he was behaving normally in hospital. There were no noted acute safety concerns, although he remained guarded and a “poor historian”. He was discharged home with a prescription for risperidone,

[95] When asked about this hospitalization, Mr. Chheng had initially forgotten about it. Dr. Woodside characterized this as being in keeping with his general presentation and being unconcerned about this. On his account, he told Dr. Woodside that he had an argument with his mother. She told him not to go outside, but he did anyway and she called the police who took him to the hospital. He claimed to have little other recall of the day. Later he did recall telling his mother that he was hearing “voices in my ear…random voices…just like someone talking to you…like my health.” He denied any commands. While in hospital, he stated he was offered treatment with medication but he refused to take it. He did not recall any diagnosis being offered.

[96] When asked about additional information from the hospital records, he reported a friend had given him a pellet gun a number of years earlier. He did acknowledge playing with it at home but denied taking a knife and running it along the wall as he was reported telling staff. Mr. Chheng believed that hospital staff made this up. His mother also reported this to the police and while Mr. Chheng did not think his mother would lie again stated, “I don’t think it is true…I think it’s lie…she lied.” He remembered the doctor recommended he take risperidone 1mg daily but stated he refused this.

[97] While there was no further hospitalizations until after his arrest in July, 2018, there were concerns with his mental health and behavior leading up to the index offence.

[98] At the time of the offence, Mr. Chheng was living with his cousin’s family. According to the cousin, Tim Som, Mr. Chheng moved in with his family when he was 24-25 years old. At that time, Mr. Som described that his cousin “wasn’t really normal” and he hoped that by assisting him with employment, he would get better. He indicated Mr. Chheng was employed at Vision North for three months. He didn’t talk and stayed by himself at the workplace and worked slowly. Mr. Som said that “people thought he wasn’t normal” and “was mental”. He then moved to his wife’s workplace, Flex-N-Gate, for better pay. He stated that his wife noted he once again did not speak much at work but did have an older female friend that he would smoke with on breaks.

[99] Mr. Som also reported that Mr. Chheng smoked marijuana “the whole time” but was unable to quantify the amount. He believed that Mr. Chheng only smoked marijuana on the weekends mostly, sometimes after work but never before work. When using, he reported he would sit in one place, play a game on his laptop, listen to music, or watch movies with his earphones in. He would not talk for the whole day.

[100] Mr. Som said that after his cousin moved in with him, Mr. Chheng looked “not very normal” and that something seemed wrong. He never talked to anyone, never smiled, and always sat in the same place. When he did communicate, it was “very strange, very slowly.”

[101] According to Mr. Som, two weeks prior to the index offence, Mr. Chheng punched a hole in his bedroom wall. Mr. Som opened his door, saw Mr. Chheng’s hand was bleeding and asked if he was okay. Mr. Chheng said he was okay and Mr. Som closed the door. He reported feeling “scared” but not concerned, as Mr. Chheng had never done anything to his family. He did not observe any other changes in his behaviour prior to the index offence.

[102] According to Roza Tim, Mr. Chheng’s cousin and Tim Som’s daughter, Mothy “used to care a lot about girls and stuff like that, then eventually he showed no interest in that type of bond with anyone. Probably a year prior to living with us we noticed he started to lose interest.” She confirmed her father’s report of Mr. Chheng’s use of marijuana but did not notice anything different about him when he was smoking. She provided similar information to her father regarding his being quite isolative and slow to answer questions. She also recalled the incident in which Mr. Chheng punched a hole in his bedroom wall but placed this event as occurring in April, 2018 rather than two weeks prior to the index offence. She indicated the family had all suspected Mothy had a mental illness going back to 2016, but did not know how to approach it.

[103] Leading up to the offence, Ms. Tim recalled seeing her cousin wearing winter boots in the summer and thinking this was strange. She also indicated he became less verbal and slept in a lot, which was a change from his previous behaviour. She said that her mother had to wake him to go to work. She also indicated he was isolating himself more.

[104] Multiple sources of information noted Mr. Chheng had always had an ear problem and was always trying to clean it out. It is unclear whether that was related to the auditory hallucinations Mr. Chheng complained about or a medical issue. I note that he did apparently have surgery on his ear a few years earlier.

[105] Another cousin, Som Mul also reported seeing a change in Mr. Chheng over the last few years, stating he was really quiet and isolated himself. Mr. Mul reported suggesting to Mr. Chheng that he go see a doctor but stated Mr. Chheng said he was fine. Mr. Mul denied observing any major changes in Mr. Chheng in the month or weeks prior to the index offence beyond punching a hole in a wall. He reported seeing Mr. Chheng the day prior to the offence and did not note anything out of the ordinary although in retrospect, he thought Mr. Chheng might have been talking slower than usual.

Observations at CNCC

[106] On July 5, 2018, the day after the offence, Mr. Chheng was admitted to the Central North Correctional Centre. He was described as tight-lipped, not forthcoming, a poor historian, guarded and possibly confused. He stared blankly, did not engage, and provided limited responses. When seen by psychiatry, he was diagnosed with unspecified psychosis. One week later, there had been little change. He was described as sitting on his bed with hands clasped, staring at the wall. He was not seen to be responding to any internal stimuli but there was concern about depression. When seen again on July 15th, he was noted to be spending his waking hours seated on his bed with his hands clasped together. The opinion was that he was likely suffering from a psychotic disorder. His presentation remained largely unchanged through August. Offers of medication or visits from family were refused.

[107] On August 18, 2018, the attending institutional psychiatrist, Dr. Lorberg, completed a Form 1 on the basis of Mr. Chheng presenting as “grossly impaired and having experienced a psychotic break that he required a forensic assessment”. He was not, however, sent to a hospital at that time. On September 26, 2018, the assessing psychiatrist described Mr. Chheng as poorly oriented, a poor historian, brief, and vague in his responses.

[108] Dr. Derek Pallandi was retained by defence counsel to assess Mr. Chheng’s fitness to stand trial. In a letter to defense counsel dated November 26, 2018, Dr. Pallandi noted that when he questioned Mr. Chheng regarding fitness criteria, he often answered “not sure”. When asked about the victim, the injuries, and the circumstances of the offence, he was described as “laughing to himself in a totally inappropriate fashion.” Dr. Pallandi noted that Mr. Chheng seemed to be exhibiting a significant disturbance in functioning and thought that the most likely diagnosis was schizophrenia. Dr. Pallandi was of the opinion that Mr. Chheng was suffering from a psychotic disorder (schizophrenia) and was unfit to stand trial.

[109] On December 12, 2018, Mr. Chheng was found unfit to stand trial. On December 28, 2018, he was admitted to the Waypoint Centre for Mental Health under a Treatment Order. When asked by Dr. Woodside about being sent to Waypoint in 2018, Mr. Chheng was not clear why he was transferred there but remained for three to four months. He could not recall his doctor’s name nor any specific diagnosis. During a second interview, he stated that he was diagnosed with schizophrenia. He was treated with what he thought was olanzapine which he felt helped him be more calm and aware of his surroundings, but he continued to hear voices even while receiving this medication

[110] In a progress note from Waypoint from January 10, 2019, when the attending psychiatrist, Dr. Van Impe asked Mr. Chheng why he attacked the victim, Mr. Chheng’s reply was “not sure”. The issue was not explored further. My own observation is that from the outset, “not sure” appears to be Mr. Chheng’s most often response to any inquiries of him whether offence-related or not.

[111] In a Report to Court, March 12, 2019, Dr. Van Impe noted that upon admission, Mr. Chheng’s response to virtually all questions were “not sure”, “I don’t know”, or “no”. He was described as moving slowly and making intermittent eye contact.

[112] Over the following six to eight weeks, he was noted as continuing to demonstrate “profound negative symptoms suggestive of schizophrenia.” He isolated himself, rarely left his room, and did not speak to anyone unless directly spoken to. Even then, he was described as experiencing thought-blocking and poverty of thought content. His affect was restricted and he had essentially no range of facial expression. In early January 2019, he engaged in some self-harm by punching a wall. While he denied experiencing auditory hallucinations, staff questioned this. He was treated with the antipsychotic medication, olanzapine at 20mg daily and the antidepressant, Cipralex, up to 20mg daily. By mid-February 2019, Mr. Chheng began to show subtle signs of improvement, including making telephone calls to family. He became more interactive with staff and co-patients. His affect brightened somewhat although it remained predominantly flat and restricted. Dr. Van Impe concluded that “…it is quite clear that he has been experiencing signs and symptoms indicative of a psychotic disorder.” He concurred with Dr. Pallandi that the most likely diagnosis was schizophrenia.

[113] Having previously provided an opinion to defence counsel on Mr. Chheng’s fitness to stand trial, Dr. Pallandi provided a further report on July 21, 2019 on the issue of criminal responsibility. Dr. Pallandi did not testify at the NCR hearing. On consent, Dr. Pallandi’s report to defence counsel was made available to Dr. Woodside for him to consider as part of his assessment of Mr. Chheng’s criminal responsibility.

[114] Dr. Pallandi opined that “Mr. Chheng ‘remained obviously mentally ill and significantly impaired, entirely in keeping with a diagnosis of schizophrenia.’” He noted how “Mr. Chheng continued to endorse auditory hallucinations despite treatment with antipsychotic medication although he denied these were command in nature. Mr. Chheng also endorsed a vague sense of others being able to read his thoughts. When asked about the offence, Mr. Chheng reported to Dr. Pallandi having ‘just hit her’ without provocation, stating he was just upset that day — ‘I can’t explain it.’” He denied any paranoia or misperceptions involving the victim, or that he was experiencing any other stressors or being intoxicated. When asked about the offence, he was aware he had injured the victim and stated that he stopped hitting the victim “because I knew I was hurting her” and that he “felt bad” about this.

[115] While I note that the words Mothy Chheng used were very similar to those he expressed to D/C Coulter on his arrest, and would suggest that he was aware of his actions and the wrongfulness of his conduct, it is Mr. Chheng’s thought process at the time of the offence that is relevant, and I must acknowledge again Dr. Woodside’s caution that to just rely on Mr. Chheng’s words as demonstrative of criminal responsibility is too simplistic. The question is whether Mothy Chheng’s words reflect his understanding at the time of the wrongfulness of his conduct and capacity to exercise a rational choice. The fact that Mr. Chheng could reach back to express rote knowledge that is learned as a child that hitting or hurting someone is bad, that did not mean that at the time, under the throes of psychosis, that Mr. Chheng had the capacity to find meaning in those words. Dr. Woodside described Mr. Chheng as a shell. The moral standards of ordinary people that may have been in Mr. Chheng’s head, but they had no meaning for him because of the disorganizing effect of his psychosis. I liken it to someone speaking a foreign language or having that foreign language in their head without an understanding of what the words mean.

[116] Similar to Dr. Woodside’s experience, Dr. Pallandi observed how Mr. Chheng would respond in a way that appeared devoid of emotion, bland and puzzled. When recounting his actions, his affect was flat and seemingly disconnected from the gravity of his behavior. Later interviews did not garner much more in the way of detail or explanation for why he committed the offence apart from him endorsing a hypothesis that it was “an accident” and “just a bad day.”

Dr. Woodside’s Examination of the Circumstances of the Index Offence

[117] The witness statements Dr. Woodside reviewed from the employees at Flex-N-Gate were largely consistent with the evidence at the preliminary hearing. He also had the benefit of having Khamphouviene Sourapha’s statement that she provided through an interpreter on October 11, 2019. A summary of her statement was included in Dr. Woodside’s Report. Ms. Sourapha did not testify before me. The only evidence I have of her account is from the summary of her statement in Dr. Woodside’s report. I will reproduce the portions that are relevant to the examination of what happened and the assessment of Mr. Chheng’s criminal responsibility as Dr. Woodside summarized them in his report.

[118] Ms. Sourapha stated that when she went to work, it was a usual day. She was placed on the assembly motor part and rotated on every line, a different line every day. She did not remember who she was working with on the day she was attacked. Ms. Sourapha noted she did not have any issues with other employees. She stated she knew she was: “hit from behind, memory not same…hit forehead not remember that day—thought I dead— not remember…attack my skull—forehead—lost memory life @ flex n gate.” When asked “who did this to you?”, she reported it was Mr. Chheng:“…never argument—can’t keep pace—Cambodian not happy look at me. He had attitudes. Line Leader—call him back to work—every time it ???…not happy working there—in end he kill me. Mothy Tim? I haven’t socialize—not say hi—attitude—what happened—line leader—whenever see me he made face at me—never know about the guy. I’m shocked who I find out he attacked me. I haven’t said hi to him.”

[119] Asked about previous problems before that night, she replied: “No—on same line. Attitude towards me—mood—I never right with him—No only me—he doesn’t like me—can’t keep up with me at work—walk out from line many times—line leader call him back—In never talk to him he never talk to me—I send parts he can’t keep up with me. Co-worker Mila—good friend Vietnamese—scared this guy don’t work—two weeks later I get killed.”

[120] “…I don’t’ remember night it happened—didn’t remember that this guy work here…” “…almost dead—can’t describe—nightmare everyday.”

[121] Asked about working with Mr. Chheng, she stated: “He doesn’t like—fast—couldn’t keep up with me—he just walked out so many times—washroom—water drink—he doesn’t care. Line Leader Stephen/Rosa told me I don’t wait—this guy all the time—why tell me I’m not the manager—tell manager.”

[122] The interview notes mentioned an employee meeting; Ms. Sourapha stated: “no one witness line four people—one lady beside me—she run away. HR told Debbie that Rosa, [gave] bushing (metal part) to her—she give it to Mothy—bushing—hand-to-hand—six foot away—coward—attack from behind—I self defend—he had screw—he mad at me—he doesn’t like me—I work faster— part jam—not only this line so many line before. One time he ask Mira to ask me out-12 am—to ask me to go to Woodbridge 12 am—line up for assign—Mira to ask me—Hot Pot with him after work— I said no. [asked when?] May 2018—middle June—Charlie line leader—invited B-day—teach wife make spring rolls— [how much?] Timothy—I don’t go. I go 1 pm teach spring roll—Timothy @ 6 pm. “look at me” “angry face”. –I blame supervisor—this guy kill me. [Complain about Tim?] No—never try to kill me —thought— I never had enemies—work—family—friend.”

[123] I note that there was no evidence of Mr. Chheng ever asking anyone to go out with him. There was no evidence he showed any interest in Ms. Sourapha. There was one instance when she went to Mr. Chheng’s cousin’s house to see his relative who also worked at Flex-N-Gate, and he saw her there, but that was the extent of any interaction. I am also unable to accept that Mr. Chheng was mad at Ms. Sourapha or displayed or held any animus towards her. The evidence from the other workers consistently described Mr. Chheng as having no involvement or interest in anyone, or causing any problems at work or with any other employee. He kept to himself, never showing any emotion and barely expressing himself at all.

[124] Dr. Woodside also watched Mr. Chheng’s interview with police about 12 hours of so after the offence. He observed that one of the failings in the officer’s questioning of Mr. Chheng was that no questions were asked of Mr. Chheng directly relating to the presence or absence of symptoms of mental illness although numerous other possible motives were suggested to explain Mr. Chheng’s actions. I did not take that to be a criticism of the officer, but more an illustration of the limited understanding of mental illness and especially the prevalence of negative symptoms of psychosis that Dr. Woodside was of the opinion that Mr. Chheng was experiencing. The officer was dealing with a violent, unprovoked crime by an accused person who was unable to provide any real answers as to why he committed the crime, seemed undisturbed or disconnected with what had occurred, and did not obviously display the active symptoms of psychosis that he was, I find, laboring under.

[125] When Mr. Chheng spoke with police, he was responsive to questions. He spoke softly, in a monotone, with minimal inflection. Dr. Woodside described his affect as blunted with no change whether describing hitting the victim with a metal part, describing being in a bad mood that day, feeling bad about his actions, or while saying “sorry that I hit you at work.” Dr. Woodside took issue with the claim that Mr. Chheng was smiling on the video when asked to apologize on camera to the victim. While Dr. Woodside described this in his report as being “less apparent”, he conceded in cross-examination that it could be characterized as smiling, and was certainly an inappropriate emotion, but would not say that this demonstrated, as put to him, that Mr. Chheng knew what he had done and was “happy” that he had accomplished what he had intended to do. I note that Dr. Pallandi also observed that Mr. Chheng displayed a similar inappropriate emotional response when asked about the offence.

[126] While I agree with the prosecution that Mr. Chheng was smiling when asked to look into the camera and apologize to the victim for what he had done, it is not as clear as the prosecution submits, what that emotional reaction represented. The significance of this exchange for Dr. Woodside was not as great as the prosecution would have it on the issue of criminal responsibility. There is merit to Dr. Woodside’s caution about placing too much emphasis on momentary changes in people’s affect. Before being asked to speak into the camera, Mr. Chheng had a flat affect and did not show the emotion or affect that one would expect from the thought or content being discussed. Even if, as the Doctor conceded, Mr. Chheng did smile, it was an inappropriate response that may well have represented feelings of awkwardness as remorse or happiness. While much was made of how he smiled when asked to apologize, that in itself was unusual because apart from that he showed no emotion. Dr. Woodside explained in his evidence that as part of the illness, an individual may display inappropriate emotions because of a loss of the ability to gauge how they may be viewed.

[127] When watching the statement, Dr. Woodside was not able to draw any conclusions from it, but he did find signs of illness in his review of it such as Mr. Chheng’s blunted affect, his negative affect describing any part of his history, and when asked to explain answers he had just provided, he was incapable of doing so. When pressed, the answers he gave were vague and he could not expand on them or, as the Doctor explained, flesh out his answers in any meaningful way. In the end, Dr. Woodside explained he was left with watching Mr. Chheng responding in a manner that was disconnected from what was being discussed, or to any feeling of any kind about what he had done or even to how he described it. Mr. Chheng was able to use the words that a person is expected to use, but they were without substance or meaning to him.

[128] The example was provided of when pressed for an explanation said he was angry, and had an anger problem, but the collateral information did not support the view that his anger was notable. There was the incident in 2016 and then closer in time when he punched the wall at his uncle’s home, but otherwise there was nothing to suggest he had such a problem.

[129] Mr. Chheng’s responses were also often marked with answers like “I don’t know”. If he agreed with a suggestion, when asked a follow up to explain, would provide a contradictory answer. In Dr. Woodside’s view, which I agree with, it is hard to say how meaningful Mr. Chheng’s comments were in his statements and whether his answers reflect what is happening to him at the time, or if he is just endorsing what is suggested without much thought to provide a rote or expected response. Dr. Woodside pointed to the exchange in his statement where Mr. Chheng expressed that he “felt bad”. Such a response, Dr. Woodside explained, is expected, but Mr. Chheng was unable to give a cogent reason for why he feels bad and is unable to do so in a meaningful way. What responses or explanations he does provide are often inconsistent with earlier responses or inconsistent with witness statements. There is little if anything that corroborates Mr. Chheng’s explanations and more often they are internally inconsistent with something he has said elsewhere in his statement or externally inconsistent with witness statements or collateral information.

[130] At various times in Mr. Chheng’s statement, he tells the officer he was having a bad day, it wasn’t a good idea, he didn’t like the lady, he didn’t want to work with her, she was being talkative, knew if he hit the victim she’d be dead, that it was something he somewhat wanted, that he wanted to hit her, that he felt bad about hurting her, and that he hit her because he just felt like it. These words, excised from the statement, viewed in isolation and without context or substance arguably demonstrate that Mr. Chheng knew what he had done was legally and morally wrong. That was not the only time Mr. Chheng used words and expressions like that. When he spoke with Dr. Pallandi, he expressed how he knew his actions wrong and that others would view his actions were wrong.

[131] When asked to comment on those passages, Dr. Woodside agreed that, on their face, that is what Mr. Chheng said, but testified that it was important not to consider what he said without considering the impact of his major mental illness, the impact of the psychosis, and the meaningfulness of what he said. I accept Dr. Woodside’s opinion that Mr. Chheng was capable of saying the words, but the words did not have meaning to him because of the disorganizing affects of his schizophrenia on his thoughts and capacity to exercise rational choice.

[132] It must also be noted that when interviewed by Dr. Woodside in January and February 2020, Mr. Chheng had been under a treatment order and taking medication and was recounting events from 18 months earlier when he was suffering from the untreated symptoms of schizophrenia and in a state of psychosis.

[133] Dr. Woodside asked Mr. Chheng specifically about that day. Even with the answers he provided, Dr. Woodside was of the opinion that Mr. Chheng was not criminally responsible. Mr. Chheng recounted that he had been feeling “a little down” that day before going to work but denied any specific triggers or stressors. His mood in the week to one month prior to the incident was “good.” He denied any thoughts that day or previously of wanting to hurt himself or anyone else or being concerned that others wished to harm him, were following him or monitoring him. He denied any paranoia regarding others, religiosity, grandiosity, thought withdrawal or insertion, thought broadcasting, or any delusions or hallucinations.

[134] He told Dr. Woodside that everything “was going good…after my lunch break we went back to work. I wasn’t feeling too good about my day…I just wasn’t in the mood to work. And then I was pissed off at the day I had and we were working. I was waiting for the parts and I was angry it was so slow…I was angry at us working and I was still pissed at my day. Suddenly I looked over and the two workers were so slow…I accidentally…I triggered myself …I was thinking about asking her [the victim] to hurry up but I kept that to myself. So then as I was working, the slower it got, the more I got pissed off. After the part came to my section, I grabbed the part and went straight forward to her and then she wasn’t looking and I had the part on me and I started hitting her. I hit her two to three times…I batted, swung the part at her and then she dropped on the floor and then I left after that. I went to my station and then came back five seconds later with the part that I hit her with…she was on the floor laying down with her face bloody. Then I engaged to continue hitting her, while she was on the floor, 2-3 times. Then I dropped the car part right beside her…I walked around the station and my lead hand asked me “what are you doing?” he went straight to her to see how she is [sic]…and then I was walking on the other side of the station, walking up and down, just pissed at myself. More people started to come over to see what happened and then I left at the back of the factory and I didn’t come back.”

[135] When asked why he targeted the victim rather than the other worker present at their station, he stated, “she was closer…” After she fell to the ground, she was not moving and was bloody. He thought she was still alive. He decided to hit her again while she was on the ground “because I was still pissed off about working…as she was on the floor, I was thinking to myself ‘why should I still be here.’” He targeted her head/face while she was on the ground but stated he did not know why.

[136] When asked what he thought would happen when he swung the part at the victim, he stated, “I thought she would go to the hospital…because she would be hurt.” When asked if he thought hitting her might kill her, he answered, “yeah” although he stated he “did not really” want to kill her. He stated he just wanted to “hurt her.”

[137] “I just ended up choosing her…because she was working at a slow pace.” He continued to report being “pissed off” about her working slowly and could not identify any other reasons for being angry that day.

[138] After leaving the factory, he drove to a field to “just relax myself”. He stayed there for ten to twenty minutes before driving around the area, thinking about what had happened. “I was thinking to myself, why did I do that, I shouldn’t have done it…thinking whether I should go home.” He continued to drive for the next three to four hours thinking about what he should do. He said that he considered going back to the factory to “apologize for what happened, to everybody and talk to my supervisor”, and not going back to the factory “because I don’t want them to feel the pain I was feeling…I did something there and I don’t want to go back.”

[139] When asked what he thought would happen if he did go back, he stated, “it wouldn't be right just to go there and explain what happened.” He eventually clarified that he did not go back to the factory because “I didn’t want to go to jail” and that he knew he would be arrested. He believed the police began looking for him “right after the incident…to probably put me into jail for something that I did wrong at work [referring to hitting the victim].” He reported knowing that hitting the victim was wrong legally insofar as he knew the police probably wanted to arrest him. He reported that there was nothing he was thinking at the time that would have morally justified his hitting her.

[140] When asked, he reported thinking about turning himself in to the police, but decided against this because “I didn’t want to go to jail.” At the same time, he reported being quite sure he would be arrested by the police eventually and denied trying to come up with any plan to escape or evade police. He reported just thinking to himself, “I have screwed myself over.” He stated hitting her did not make sense to him at the time.

[141] He stated he did not call anyone between the attack and being arrested. He did think about calling Sophally to tell her what had happened – “everything that had happened at work…she probably would have told me to go to the police station and give myself in there.” He stated he did not call police because he did not have a phone with him. He eventually drove back home, remaining there for a while before getting in his car to go to the gas station to get cigarettes. He was pulled over by police on his way there.

[142] He told Dr. Woodside that he thought at the time that other people would think “that I was out of my mind” and that what he did was wrong. He stated he was worried about what everyone would think, including his family. During a subsequent interview, he clarified that people would be asking “what was up with him” after the accident. He stated, “because I did something wrong and everybody is surprised by what I did…upsetting – what I did.”

[143] When asked how he thought his actions would affect him in future, he indicated, “somewhat…just me going to jail.” He clarified that he began thinking about going to jail and being arrested after he left the factory on the day of the incident. He noted he did not think about going to jail prior to hitting the victim but was thinking about it within 30 seconds afterwards.

[144] When asked about his thoughts/feelings now about the incident, he stated, “ I just feel bad…about hitting her…it was wrong to hit her. When asked why it was wrong, he responded “just ‘cause I hit her.”

[145] Dr. Woodside questioned Mr. Chheng about what made his actions right or wrong. Mr. Chheng was able to repeat that it was wrong to hit someone but could not articulate his thoughts further. He did state that as he hit her and when he walked out, he was wondering what people would think; he stated he believed people would think his actions were devastating/bad. He did not think he was ill at the time but had difficulty explaining his actions otherwise given that he had never been charged before or involved in any serious fights. Despite being aware he had been diagnosed with schizophrenia, he did not believe he was suffering from a mental illness.

[146] Mr. Chheng’s presentation during his interviews with Dr. Woodside remained constant. He had to be prompted to go beyond one word answers, showed a lack of emotion, and while he said his mood was good, showed no evidence of that. He appeared unconcerned with everything going on around him. It was as if nothing seemed to register.

[147] The psychological assessment that Dr. Heasman conducted as part of the NCR assessment noted that “Mr. Chheng… presented with a tendency to agree or disagree with closed-ended questions on a variety of subjects, however when asked to expand on this further he was either unable or it was clear his initial understanding of the question was flawed. As such it should not be assumed that if Mr. Chheng responds in the affirmative or negative to questions that he fully appreciates the nature of the question, particularly if the question is nuanced, complex, or asking him to recall newly learned information.”

Dr. Woodside’s Opinion

[148] Dr. Woodside confirmed the diagnosis of schizophrenia. Post-offense, Mr. Chheng was repeatedly diagnosed with a psychotic disorder by psychiatrists in jail and at hospital and by Dr. Pallandi. Dr. Pallandi and Dr. Van Impe both opined that he suffered from schizophrenia. Dr. Woodside shared that opinion.

[149] Dr. Woodside testified that an individual diagnosed with schizophrenia may present positive and/or negative symptoms. As he explained, both positive and negative symptoms are significant. Examples of positive symptoms are things like auditory or visual hallucinations evidencing persecutory or paranoid delusions. As he explained, however, negative symptoms of schizophrenia can occur even before an individual shows active symptoms. Such negative symptoms can include amotivation or avolition, social withdrawal, ignoring hygiene, disinterest in work or relationships, and grossly disorganized speech and thought contents. Such symptoms may not be as obvious to the lay person but, according to Dr. Woodside, it is the negative symptoms that cause much of the disability associated with schizophrenia.

[150] Mr. Chheng’s account of voices and delusions were consistently vague and, when queried, he was not able to articulate his accounts in a meaningful fashion. Mr. Chheng himself did not endorse having acted under any delusions or hallucinations at the time of the offence. It is noteworthy that no witness at Flex-N-Gate made observations of Mr. Chheng at the proximate time that were consistent with positive symptoms of schizophrenia such as hallucinations or delusions.

[151] Mothy Chheng denied that he was mentally ill. According to Dr. Woodside, that he denied that he was schizophrenic, despite acknowledging having been diagnosed with that mental illness, is not unique. He wrote in his Report, that many individuals suffering from schizophrenia do not identify themselves as suffering from a mental illness although they may be aware that others would view them as ill if they disclosed their symptoms, thus leading to their being guarded about sharing those symptoms. The lack of insight, which Mr. Chheng also shared, was described as one of the key features to the illness. Dr. Woodside testified a crucial part of the illness is that often individuals with schizophrenia will not see that what they are experiencing is wrong, and don’t understand that they are suffering from illness. The affects of the illness are invisible to the person. It won’t trouble them that they might not socialize, or see other people, or not work and that cannot be convinced even, with compelling evidence, that what they are experiencing is not actually happening. That Mr. Chheng was untroubled by the affects of the illness on him may have a great deal to do with the fact he was not aware he was ill or its disordered affect on his thoughts.

[152] The negative symptoms that Dr. Woodside described included the absence of emotional affect, also described as a blunted affected. He explained that when the person speaks, the content does not appear to affect their emotional state, and don’t show a reaction. Other negative symptoms include avolition or amotivation which includes a person losing interest in doing things, pursuing activities, not interacting with people, staying at home alone and showing no interest in being active, and failing to care for themselves as the most disabling. There is also a condition called alogia which is a poverty or reduced level of speech shown by the person not really talking at all and a form of thought disorder. Dr. Woodside was of the opinion that the symptoms of schizophrenia that Mr. Chheng suffered from at the material time were these negative symptoms of psychosis.

[153] Family and friends contacted as part of the NCR Assessment reported noticing significant change in Mr. Chheng from 2016 onwards. Where he was previously more talkative and engaged, he became very isolated, did not speak unless spoken to, and ceased pursuing intimate relationships. Family members described him as “not normal” and believed he was mentally unwell although they did not seek out assistance for him. Individuals from his workplace also described him as keeping to himself, only speaking when spoken to, and showing little emotion.

[154] Dr. Woodside accepted the collateral information which showed a significant decline over the last several years in important areas of Mr. Chheng’s function including school achievements, personal and intimate relationships and in emotional expression. In his report, Dr Woodside wrote that that decline appears to be reflective of either or both a prodromal period of illness, followed by development of active symptoms of schizophrenia, both positive and negative. In addition, he observed that since being subject to a treatment regime including the use of antipsychotic medication, Mr. Chheng appeared to have benefitted somewhat although he continues to demonstrate both significant negative symptoms of his illness (apathy, amotivation, flat affect, etc) and ongoing, residual positive symptoms (hallucinations and delusions).

[155] Dr. Woodside did consider the possibility of malingering of psychotic symptoms but did not believe this to be the case. Mr. Chheng’s presentation in interviews did not raise this as a significant suspicion and psychological testing was not in keeping with malingering of such symptoms. The consistency of Mr. Chheng’s symptoms over time has also been consistent and in keeping with his suffering from notable negative and residual positive symptoms of his illness. Dr. Woodside also noted that Mr. Chheng did not report any psychotic symptoms that would be seen as exculpatory and instead downplays any experience of psychosis which, Dr. Woodside found, was in keeping with his having minimal insight into being unwell.

Applying the Law to the Facts

[156] The question is not whether Mothy Chheng had the general capacity to know right from wrong, but whether the particular act was wrong in the circumstances. Has the defence established, on a balance of probabilities, that Mothy Chheng possessed, at the material time, the intellectual ability to know right from wrong in an abstract sense and the ability to apply that knowledge in a rational way to the alleged criminal act? (Oommen, supra, para 21) Did Mothy Chheng lack the capacity to rationally decide whether the act was right or wrong and hence to make a rational choice about whether to do it or not. Did his disordered condition deprive him of the ability to rationally evaluate what he was doing? (Oommen, supra, para 26)

[157] Dr. Woodside’s opinion is yes. He provided what I found to be an objective, straightforward opinion. He had no agenda, he explained the basis for his opinions, and acknowledged the challenges in the case, but still maintained his opinion, that on balance, or 50-60% on the balance of probabilities spectrum, that Mr. Chheng was not criminally responsible. I would also answer the questions posed by Oommen to the facts of this case in the affirmative.

[158] The overwhelming evidence is that Mr. Chheng was likely suffering from a major mental illness, that being schizophrenia or schizoaffective disorder, that could have conceivably robbed him of the capacity to appreciate the nature and quality of his acts or omissions, or to know the wrongfulness.

[159] I accept Dr. Woodside’s view that there was “relatively good evidence that Mothy Chheng was experiencing symptoms of psychosis in the period leading up to the index offense, including the material time and post-index offense”:

[160] After the index offence, Mr. Chheng was repeatedly identified in jail and in hospital as suffering from a psychotic illness and with treatment. He continued to demonstrate both negative and positive symptoms of his illness. I accept Dr. Woodside’s opinion that overall, it was more likely than not that Mr. Chheng was suffering from active symptoms of psychosis at the material time, despite Mr. Chheng not being able to articulate this in any meaningful fashion.

[161] Simply suffering from a psychiatric/mental disorder does not necessarily lead to the conclusion that an individual would have a defence of not criminally responsible available to them. There also needs to be evidence that symptoms of the mental disorder were active at the material time and directly impacted upon the individual's capacity to appreciate the nature and quality of their acts or omissions or to know the wrongfulness of their acts or omissions (i.e. that there is a direct nexus between active symptoms of their illness and the individual’s thinking and behaviour).

[162] The first branch of the criminal responsibility test under s.16(1), asks whether, on a balance of probabilities, Mothy Chheng, would have been incapable of appreciating the nature and quality of his acts or omissions at the material time. Mr. Chheng reported intending to hit the victim and being aware that doing so could either significantly injure her or kill her. Even taking into account that Mr. Chheng’s statements after the fact may not accurately or fully reflect his actual thinking at the material time, the evidence and Dr. Woodside’s unchallenged opinion was that Mr. Chheng would have been capable of appreciating the nature and quality of his acts/omissions at that time.

[163] The second branch of the s.16 test is concerned with whether the symptoms of the person’s mental disorder rendered him incapable of knowing his acts or omissions at the material time were wrong. Knowing the act was wrong means having the capacity to know the act was legally wrong and morally wrong. Mr. Chheng knew, or at least reported, that he was aware that he would likely be arrested and left the scene, reportedly to avoid being arrested. This, in Dr. Woodside’s opinion, was in keeping with Mr. Chheng remaining capable of knowing the legal wrongfulness of his actions at the time despite the mental disorder. I agree.

[164] It was Dr. Woodside’s expert opinion, however, that on a balance of probabilities, Mr. Chheng was not capable of knowing the moral wrongfulness of his actions at the material time as a result of mental disorder at the time.

[165] Mr. Chheng’s awareness or capacity to appreciate the moral wrongfulness of his actions was really the sole issue before me. Dr. Woodside disagreed with the Crown’s suggestion that there is no difference between legal and moral wrongfulness and that it amounted to the same thing. Mr. Chheng still possessed the rote knowledge that his act was wrong, but he was not able to access or use that knowledge to make a rational choice whether to act or not because of his mental disorder. Mr. Chheng’s words and actions pre and post-offence that the prosecution submitted were demonstrative of Mr. Chheng’s knowledge of the legal and moral wrongfulness of his actions, was not, according to Dr. Woodside, the end of the inquiry.

[166] Dr. Woodside attributed Mr Chheng’s inability to describe his thinking at the time of the offence to his mental illness rather than a wilful act. He recognized that in Mr. Chheng’s statement to police, Dr. Pallandi and himself, that Mr. Chheng used words that suggested he knew his acts were wrong or that people would view them as wrong in the moral sense, but he was unable to explain in any sense how or why.

[167] The evidence before me was that even those suffering from a major mental illness would be aware that it is wrong to harm someone or attempt to kill them and be able to access that base knowledge even if they are not able to access that knowledge at the time. I accept that Mr. Chheng’s base or rote knowledge of the wrongfulness of his conduct was not part of his thought process at the time of the offence, and his ability to express something of the moral wrongfulness of his conduct in later interviews was not demonstrative of an awareness at relevant the time.

[168] Dr. Woodside did not reject what Mr. Chheng did or said, but he cautioned that it would be simplistic to just consider what Mr. Chheng says when he says his act was wrong. In Mr. Chheng’s case, when asked, he could not even explain how his act was wrong. As Dr. Woodside put it, even though Mr. Chheng was able to come up with what may be seen as the “right answer” or the expected answer, his phrasing demonstrated how he was not using the information in the way one would expect. The evidence to the contrary established that he did not have the capacity at the time to access and use that rote knowledge. At one point, Dr. Woodside described, Mr. Chheng as being like a “shell of a personality” or like a child repeating words but without understanding.

[169] The prosecution argued that Mr. Chheng’s words and conduct demonstrated he was aware of the moral and legal wrongfulness of his conduct and if there is bare awareness, then criminal responsibility follows, but the current state of the law and the reasoning behind its interpretation requires more.

[170] Dr. Woodside described Mr. Chheng’s case, aptly, as a challenging case. His opinion was that at the time Mr. Chheng was hitting Ms. Sourapha. it was outside Mr. Chheng’s ability and capacity to think whether his conduct was right or wrong as a result of the mental disorder he was laboring under. Dr. Woodside did not believe that Mr. Chheng had the capacity to make use of the base or rote knowledge to determine whether to act or not. He was incapable of making any sort of rational choice.

[171] The impact of Mr. Chheng being actively psychotic at the time had, I find, a disorganizing affect on his ability to act and think rationally. He was not able to think of his actions in a way that enabled him to make a rational choice about the moral right or wrongfulness of his actions. From a psychiatric perspective, Dr. Woodside’s opinion that the most likely explanation for Mr. Chheng’s conduct is that the symptoms of his mental illness were active and prevented him from engaging in rational choice about his actions on a balance of probabilities is one that I accept and apply to the law in this case.

Conclusion

[172] I am satisfied on a balance of probabilities that at the time of the offence Mothy Chheng was suffering from a mental disorder that rendered him incapable of knowing his act was wrong; accordingly, he will be found not criminally responsible.

Released: April 27, 2021

Justice J. Bliss