Court File and Parties

COURT FILE NO.: 17-10000598-000 DATE: 20180727

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SIMON GARES

Counsel: Christopher Ponesse for the Crown John Fennel, for Simon Gares

HEARD: August 8 – 11, 15; September 28, October 19, 20, December 15, 2017, April 6, 20, 27, 2018

B.P. O’MARRA, J.

Reasons for Decision – S. 16 of the Criminal Code

Overview

[1] In the mid-afternoon of August 5, 2016 the 5 year old victim was with his mother and 8 year old brother on Bloor Street in Toronto. The accused was sitting on the sidewalk. He had never met or had any type of contact or interaction with the victim or his family. The accused approached the victim and punched him in the face. The victim fell to the sidewalk. The accused then violently kicked the victim in the head as he lay on the ground. The accused fled on foot and was arrested nearby by members of the Toronto Police Service (“TPS”).

[2] The victim was rendered unconscious for a brief time and suffered a concussion and bruises. Fortunately he did not sustain any broken bones.

[3] The accused was charged with assault causing bodily harm and breach of probation. The trial started with jury selection and evidence from the mother of the victim, other civilians who observed the incident and the police who dealt with the accused before and after his arrest. Counsel for the accused had advised at the outset that this would be a bifurcated trial with the issue of not criminally responsible to be dealt with after the trial on the merits. Before the accused testified counsel agreed that it would be appropriate to declare a mistrial and have the matter proceed before me without a jury. It was agreed that the evidence already heard by the jury would be incorporated into the continuing trial by judge alone.

[4] There was no doubt that the accused committed the act that formed the basis of the offence charged. Crown and defence each called a qualified forensic psychiatrist to testify on the not criminally responsible issue. They had divergent opinions. Submissions of counsel are now complete and these are my reasons.

The Evidence of the Attack and Arrest of the Accused

[5] The victim’s mother testified that on August 5, 2016 she was bicycling home with her two sons after summer camp when the three stopped at a bakery near the corner of Runnymede and Bloor Street in Toronto. She noticed a man sitting on the sidewalk. She left some room between him and her family as they entered the bakery because he seemed “troubled” or “mentally agitated … it was clear to me this is someone to just avoid.” She did not remember him making noise as they entered the bakery.

[6] As the family exited the bakery, she heard a swear word, turned and saw the man punch the left side of her son’s face near his jaw. She described the punch as “full force” and made with “all his might, like you would punch another man in a fight.” She heard a crack, and then saw the man kick her son. She started yelling, fearing he would not stop unless she interrupted him. She ran toward him and he ran east along Bloor Street.

[7] She testified that after either the punch or the kick she saw her son fly backwards. She described him as concussed, lying limp and unconscious at some distance from where he originally stood. At first she did not know whether her son was still alive. Soon after she picked him up he began to groan. She estimated that he was fully unconscious for 15 seconds after being hit.

[8] She asked a passerby to call 911 and to call her husband. Her other son was screaming and scared. The three of them took an ambulance to the hospital, at which point her younger son regained consciousness.

[9] Her son stayed at the hospital for the day and returned home that night. He was in a lot of pain. It was difficult for him to move his neck. As a result of the concussion he had headaches, difficulty sleeping, and a hard time staying focused. Swelling was prominent for one week and bruising lasted several weeks. Below his left cheek there is scar tissue. She stated that her son’s backpack probably saved him from more serious injuries by preventing his head from hitting the sidewalk. He took pain medication and the family used craniosacral therapy, which she described as an alternative health treatment.

[10] The headaches subsided but they resurface when he engages in activities like tobogganing. Both her children had nightmares for months after the event. For about eight months after the event her younger son, the victim, experienced significant distress at night, whereas that distress continued for her older son through to the date she testified (one year later).

[11] Trisha Foley was walking with her daughter on Bloor Street at the time of the attack. She observed the accused to kick the victim in the face “with all his might” as the victim lay on the ground. She then saw the accused run away from the scene.

[12] Dong Lee operated a florist shop on Bloor Street and observed the attack. He saw the accused kick the victim in the head “like a soccer ball.” The victim appeared to lose consciousness. The accused ran towards Mr. Lee as he tried to escape. Mr. Lee tried to block his path but the accused ran around him and onto the street. Mr. Lee then tried to catch up to him on foot but was unable to do so. He called for police and medical assistance.

[13] Cst. Nigel Ridgley of the TPS was one of the first officers on scene. He observed that the victim was awake but incoherent. He was not alert and was not crying. His body was limp and he appeared to be in shock. After the victim was removed by medical staff Cst. Ridgley examined a bag that had been found nearby. The contents included items with the name of the accused on them.

[14] Cst. Jose Perez of TPS was among the officers dispatched to the scene. He became involved in a search for the suspect. The officers were assisted by tracking dogs. Cst. Perez was in a backyard when he heard a voice from the other side of a fence say “I give up, I surrender.” Cst. Perez found the accused sitting in the adjoining yard with both hands in the air. The accused was arrested and handcuffed. He was compliant. The accused was escorted to the rear area of a marked police vehicle and was advised of his right to counsel and his right to remain silent. The accused did not verbally identify himself in response to questions. The accused was taken to 11 Division of TPS.

[15] The accused was told that he was arrested for “attempt break and enter.” The accused responded that he did not do that. It appears that the initial allegation was based on finding the accused near a residence. There were no charges laid related to an attempt to break into a residence. The accused said he would rather not say anything else. He was told he could contact a lawyer from the police station.

[16] Enroute to 11 Division the accused said he had trouble breathing and that he had pain “all over.” He was told to sit up in order to breathe better. The in-car video then shows the accused sitting up and appearing to be okay.

[17] The accused was paraded on video before a senior officer at 11 Division. He was shortly thereafter taken to hospital related to blisters on his feet. Enroute to the hospital the accused is observed and heard on video to say “I want to go to the fucking psych ward.” He also said that voices were telling him to lash out and attack people. He said he did not know what was going on and that his feet hurt. He referred to having “head trauma” and “that’s fucked up.” He said he was on medication for psychiatric reasons and that he was not a criminal. Later he said he was scared and that he was always scared.

[18] Det. Cst. Christopher Ethier of TPS was involved in transporting the accused to 11 Division after the arrest. At the station the accused said he had a mental health history, was schizophrenic and heard voices. He seemed responsive to questions asked as he was paraded at the station. The accused said he thought his ankle was broken. He said “please let me see a psychiatrist.” He said he was schizophrenic, bipolar and had a head injury from hockey. He said he had not taken any medication today but did use cocaine that morning. He said he “heard voices and lashes out.”

[19] The accused was transported to a hospital related to the blisters on his feet and his other physical complaints. Medical staff at the hospital confirmed that he did not have any broken bones. There was no suggestion by the medical staff that the accused remain at the hospital pursuant to the Mental Health Act, R.S.O. 1990, c. M.7.

(i) Evidence of Simon Gares

[20] Simon Gares was born in 1981. He was in a relationship with a woman for 11 years with whom he had three children. He has not seen them in several years due to a restraining order. He testified that he started receiving Ontario Disability Support Program (“ODSP”) in 2009 after being diagnosed with schizophrenia while in prison. Mr. Gares also testified that he does not have a mental illness and that medication does not help him feel better. On cross examination he disagreed with his past diagnoses of schizophrenia and bipolar disorder.

[21] Mr. Gares went to St. Michael’s Hospital after being released from the Toronto South Detention Centre in early 2016 because he “couldn't settle” outside of prison without support. He felt that he had not left jail even though he had, and referred to this as being punished twice for the same crime. While he was waiting at St. Michael’s he saw a television broadcast about himself. “They broadcasted my information and they suggested I may be wanted or something for not following through on the release plans and said that I was dangerous to the community and a threat to families or children or something [ ... ].” He informed an officer about the broadcast. The officer made him feel as though he should not leave. Eventually he was allowed to go through with his hospital visit.

[22] Following the hospital visit, he thought he went to a halfway house but could not confirm the name. He then stayed at short-term social service agencies, and was homeless. He understood that he was not physically in jail, but felt as if he was. Once a month he would go to the main ODSP office on Yonge Street to collect his social assistance cheque.

[23] Mr. Gares testified that he was often at the hospital, mostly to report eye trouble, and testified that a hockey injury at age 13 blinded him. He also testified that this same injury put him into a coma but could not say for how long.

[24] At a meeting with a doctor in 2016 he requested and received pain medication, which he says was for pain behind his eye. He could not be certain which medication he received from which hospital. He said he did not know the date in August 2016 on which he was arrested, nor could he pinpoint how long before his arrest he met with that doctor. Accepting the date of the arrest was August 5, 2016, he testified that he may have smoked marijuana in the morning but he was not sure.

[25] Mr. Gares testified that he did not smoke crack cocaine on August 5, 2016. He denied telling police he had smoked crack cocaine that day. Had he made such a statement, he testified that he would have told police that cocaine was still in his system at the time of his arrest because he had used cocaine one or two weeks prior.

[26] He also testified that he may have taken an antipsychotic medication within the month leading up to his arrest, but that he had only done so because he felt he had to if he wanted to see his kids again.

[27] Mr. Gares testified that he started hearing voices in his early twenties while incarcerated. The voices last about ten seconds, and told him to be violent or incite violence, or go to war with their enemies, but he has not acted on those instructions. Hearing voices is linked with watching television. He forms relationships and engages in dialogue with people from news broadcasts.

[28] Mr. Gares first testified that he had no memory of August 5, 2016, but then offered a lengthy version of events. During examination in chief he repeatedly denied hitting or kicking the child. Later he admitted that he kicked the child. On cross examination he denied punching the child.

[29] Over a dozen times during direct and cross, Mr. Gares claimed that he was not guilty or that he had no intent to cause harm. He maintained that his actions were not morally wrong. He also testified that he and the boy were the same size, and that he did not put a lot of force into the kick. In particular he did not wind up before the kick.

[30] He testified that he felt that he was subject to a large surveillance scheme and that by kicking the boy he would draw attention to himself in order to stop that surveillance. He testified that before the incident he “said something along the lines of stop surveillancing me or else there's going to be . . . [sic]” and that afterward he ran down the street: “It was as if l was running at the child to like get the people to stop attacking me or something.” He later testified that he ran to have surveillance follow him, in the hopes of leading to a fair trial on what had happened.

[31] At first the only physical interaction Mr. Gares admitted was to offer the child a handshake or some other gesture to apologize. He testified that he felt apologetic for thinking that he should approach the child in an effort to make the surveillance on him stop. He also said he believed the mother and child were okay because they were together.

[32] He testified that after he offered a handshake or some other gesture toward the child, he made the “unsound decision” to demonstrate his strength via some display or spectacle. Running away was part of this spectacle. He claimed that he intended to distract those who were surveilling him, and that if he was detained afterward he could explain the situation and would be released: “Am I target? If so, let’s deal with it. If not, I want to go on my merry way.” He reasoned this spectacle would counteract the false accusations against him in the media. In direct and on cross, he claimed that the television unfairly labelled him a threat to children.

[33] When asked on direct about why he said, “Stop surveilling me,” Mr. Gares responded that he believed he was surveilled potentially by the Canadian or American governments. He said this was because he reported around 1996 that America was under threat for the 9/11 terrorist attacks. Again his testimony is unclear but he alluded to receiving the information via news broadcast and by “hacking” the intelligence himself.

[34] Crown counsel challenged Mr. Gares on why he ran away from the scene. Mr. Gares denied Crown counsel's suggestion that he removed his shirt to disguise himself. Mr. Gares also testified that he surrendered to police out of fear of being hurt or killed.

[35] Mr. Gares also repeatedly claimed that his actions were constitutionally protected by the Charter, and compared his behaviour to those of a professional wrestler or to Bruce Lee. When asked for clarification on who was attacking him, he repeated that the voices in his head were inciting violence in him, that he had verbally threatened to kill children but in a non-serious way, and linked both of these to what he perceived as an unjust infringement on his rights.

[36] Mr. Gares testified that the event was random, that nothing like this had ever happened to him before, and that he was not fully conscious during the event. He also stated that he was not in control of his leg when he kicked the child. When asked for further clarification about some confusing statements in direct examination, Mr. Gares testified that it may not have been his choice to stand up off the sidewalk, or that he was compelled to express himself to stop the surveillance on him and that he would use the boy for that end.

[37] On cross examination Mr. Gares claimed to never have feigned illness or disability for his own benefit. He denied making threats to get his desired treatment, including threats to harm himself, despite medical records that suggest otherwise. He also testified that in jail he was constantly beaten and was denied adequate food and exercise.

[38] As an example of his tendency to lie or exaggerate to get his desired treatment, Crown counsel put to him that on April 19, 2016, when he was asked if he considered harming himself, he replied, “Well, any means to get better.” Mr. Gares explained that he said this because he was temporarily unwell and that he recovered. Crown counsel also put to him that he told his probation officer that he was unable to get his desired pain medication. Mr. Gares said he needed the pills to manage his pain and that he was not addicted to painkillers.

[39] Mr. Gares agreed that by telling the police he heard voices, he might be sent to a medical facility where he might gain a favourable assessment and be released.

[40] The Crown put to Mr Gares that he told police he had schizophrenia, which Mr. Gares explained by way of saying there was “some sort of issue” or “an inference” that was related to schizophrenia that occurred that day.

[41] Finally, Crown counsel also put to Mr. Gares that after being arrested he told police: “Voices telling me to lash out and shit, fucking attack people,” Mr. Gares did not agree that he said those words to the police, but agreed in substance, stating that voices prompted him to get up off the sidewalk and that something happened but he did not commit a crime. The cross examination concluded with Mr. Gares offering the following: “Whatever was causing the voices to say these things to me affected me and something came out of my head and ripped a piece of my brain out.”

Criminal Record of Simon Gares

Date Sentenced: 03 May 1995 North Vancouver, BC (Youth Court) Offence: Theft Under $5000, s. 334(B) of the Criminal Code, R.S.C. 1985, c. C-46 Sentence/Status: Probation 1 year

Date Sentenced: 18 July 1995 North Vancouver, BC (Youth Court) Offence: Robbery, s. 344 of the Code Sentence/Status: Probation I year

Date Sentenced: 31 August 1995 Vancouver, BC (Youth Court) Offence: Robbery, s. 344 of the Code Sentence/Status: 2 months open custody and probation 12 months

Date Sentenced: 28 November 1996 Vancouver, BC (Youth Court) Offence: (1) Fail to Stop at Scene of Accident, s. 252(1)(b) of the Code (2) Assault, s. 266 of the Code Sentence/Status: (1) 4 months secure custody and probation 12 months (2) 4 months secure custody and probation 12 months

Date Sentenced: 28 May 1997 Vancouver, BC (Youth Court) Offence: Theft Over $5000, s. 334(a) of the Code Sentence/Status: 45 days open custody and probation 3 months and compensation $100

Date Sentenced: 02 October 1997 Vancouver, BC (Youth Court) Offence: Possession of a Prohibited Weapon, s. 90(1) of the Code Sentence/Status: Probation 8 months and time served

Date Sentenced: 25 November 1997 North Vancouver, BC (Youth Court) Offence: (I) Possession of Property Obtained by Crime Over $5000 (2) Possession of a Prohibited Weapon, s. 90(1) of the Code Sentence/Status: (1-2) Probation 6 months on each charge

Date Sentenced: 01 October 1998 Vancouver, BC (Youth Court) Offence: (1) Break, Enter & Commit, s. 348(l)(b) of the Code (2) Obstruction, s. 129(a) of the Code (3) Use of Credit Card, s. 342(1)(c) of the Code Sentence/Status: (1-3) 6 months secure custody

Date Sentenced: 10 August 1999 Kelowna, BC Offence: Theft Over $5000, s. 334(a) of the Code Sentence/Status: 3 months intermittent and probation

Date Sentenced: 30 December 1999 Kelowna, BC Offence: Unlawfully at Large, s. 145(1)(b) of the Code Sentence/Status: 20 days

Date Sentenced: 01 May 2000 North Vancouver, BC Offence: Break, Enter & Commit, s. 348(1)(b) of the Code Sentence/Status: 6 months conditional sentence order

Date Sentenced: 19 July 2000 Vancouver BC Offence: Obstruct Peace Officer, s. 129 of the Code Sentence/Status: 7 days

Date Sentenced: 30 November 2000 North Vancouver, BC Offence: Break, Enter & Theft, s. 348(1)(b) of the Code Sentence/Status: 12 months conditional sentence order and probation 2 years

Date Sentenced: 03 February 2003 North Vancouver, BC Offence: (1) Break, Enter & Theft, s. 348(l)(b) of the Code (2) Possession of Break in of the Code, s. 351(1) Sentence/Status: (l-2) 2 years on each charge

Date Sentenced: 29 November 2005 Thunder Bay, ON Offence: (1) Possession of Property Obtained by Crime Over $5000, s. 354(l)(a) of the Code (2) Fail to Comply with Recognizance, s. 145(3) of the Code Sentence/Status: (l) 6 months (2) 2 months consecutive

Date Sentenced: 30 May 2006 Toronto, ON Offence: (1) Theft Under $5000, s. 334 of the Code (2) Mischief Over $5000 Sentence/Status: (1-2) 1 day on each charge concurrent and 17 days custody

Date Sentenced: 28 February 2007 Calgary, ON Offence: (1) Assault with a Weapon, s. 267(a) of the Code (2) Fail to Appear, s. 145(5) of the Code. (3) Fail to Appear, s. 145(5) of the Code Sentence/Status: (1) 2 months and probation 2 years and discretionary prohibition order s.110 CC for 10 years (2) 30 days consecutive and probation 2 years (3) 30 davs and probation 2 vears

Date Sentenced: 14 November 2007 Vancouver, BC Offence: Assault, s. 266 of the Code Sentence/Status: 1 day and 6 months pre-sentence custody and probation 3 years and mandatory prohibition order s.109 CC

Date Sentenced: 12 September 2008 Toronto, ON Offence: Assault with a Weapon, s. 267(a) of the Code Sentence/Status: 90 days conditional sentence order and 6 months and discretionary prohibition order s.110 CC for I 0 years

Date Sentenced: 24 November 2008 Toronto, ON Offence: Uttering Threats, s. 264.1 of the Code Sentence/Status: Suspended sentence and probation 2 years and 26 pre-sentence custody and discretionary prohibition order s.110 CC for I 0 years

Date Sentenced: 18 December 2009 Toronto, ON Offence: (l) Assault Causing Bodily Harm, s. 267(b) of the Code (2) Uttering Threats (3) Escape Lawful Custody (4) Possession of a Schedule II Substance, s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 Sentence/Status: (Details missing in original text)

Date Sentenced: 22 March 2011 Toronto, ON Offence: Driving with More than 80 mgs of Alcohol in Blood, s. 253(1)(B) of the Code Sentence/Status: $1000 and prohibited driving for I year

Date Sentenced: 13 July 2011 Toronto, ON Offence: Assault Causing Bodily Harm, s. 267(b) of the Code Sentence/Status: 4 months and credit for the equivalent of 90 days pre-sentence custody and probation 2 years and mandatory prohibition order s.109 CC

Date Sentenced: 13 January 2012 Toronto, ON Offence: (l) Assault, s. 266 of the Code (2) Fail to Comply with Recognizance, s. 145(3) of the Code Sentence/Status: (1) 70 days and probation 2 years (15 days pre-sentence custody) (2) 70 days concurrent

Date Sentenced: 09 May 2012 Toronto, ON Offence: (l) Assault, s. 266 of the Code (2) Forcible Confinement, s. 279(2) of the Code Sentence/Status: (1) 18 months and probation 3 years (2) 18 months concurrent

Date Sentenced: 18 September 2014 Offence: (I) Uttering Threats, s. 264.l(I)(a) of the Code (2) Uttering Threats, s. 264.l(l)(a) of the Code (3) Assault with Intent to Resist Arrest, s. 270(1)(b) of the Code (4) Theft Under $5000, s. 334 of the Code (5) Fail to Comply with Probation Order, s. 733.1(1) of the Code Sentence/Status: (l) 5 months and probation three years and presentence custody 11 months, s. 109 (*U) (2) 5 months consecutive to term of even date, s.109 (*U) (3) 2 months consecutive to Charge 1 (*U) (4) 2 months consecutive to Charge 1 (*U) (5) I month consecutive to Charge 1 (*U)

Date Sentenced: 17 February 2016 Offence: Fail to Comply with Probation Order X 2, s. 733.1 (l) of the Code Sentence/Status: UNOFFICIAL - 7.5 days PTC plus 90 days

The Psychological and Psychiatric Evidence

[42] Dr. Julian Gojer and Dr. Joseph Ferencz are qualified forensic psychiatrists who interviewed the accused after his arrest, prepared reports and testified on the s. 16 issue. Dr. Gojer was nominated by the defence and Dr. Ferencz by the Crown. The accused was also interviewed by Dr. Bruno Losier, psychologist, who also prepared a report but did not testify. Both Dr. Gojer and Dr. Ferencz referred to the report of Dr. Losier.

Psychological Assessment Report – Dr. Bruno Losier dated September 19, 2017

[43] This report is significant in assessing whether the accused exaggerated symptoms in order to obtain the result he wished for in this case. Dr. Gojer does not refer to this report in his report dated September 23, 2017. Dr. Losier’s report was based in part on several meetings with the accused while he was in custody on the current charges.

[44] Dr. Losier referred to the accused as a poor historian, often contradicting his own statements. The accused disclosed that he had not been truthful in the past about hearing voices in order to be eligible for ODSP. In terms of a diagnosis of psychotic disorder the self-report of symptoms of the accused was inconsistent and his presentation atypical for this classification. His gross exaggeration of psychological symptoms and behaviours seemed highly influenced by the current criminal proceedings. On this basis he met the criteria for classification of probable malingering. He also met the criteria for Antisocial Personality Disorder and Unspecified Other Substance-Related Disorder. The latter would refer to alcohol and illicit drug abuse. In conclusion Dr. Losier found that there was no evidence to support a pathological process beyond a possible intoxication that would have impacted on the accused’s ability to understand the implications and consequences of his acts, or his options.

The report of defence psychiatrist Dr. Julian Gojer dated August 8, 2017

[45] In this report, Dr. Gojer did not offer a conclusive view on criminal responsibility. He found that Mr. Gares had been diagnosed with schizophrenia, schizoaffective disorder, antisocial personality disorder, and problematic drug use. However, given that he denied the substance abuse allegations, Dr. Gojer could not properly evaluate Mr. Gares. He wrote that a not criminally responsible conclusion remained open and recommended that an inpatient assessment of Mr. Gares be conducted to determine whether he was fit to stand trial.

[46] Dr. Gojer reviewed Mr. Gares’ medical history, including consults in 2011 and 2013 which reflected the preceding diagnoses, one consult in 2016 where he appeared calm and cooperative and where no psychosis was detected, and another consult from 2016 where he was diagnosed with cocaine and alcohol intoxication and psychotic disorder not otherwise specified.

[47] During the interview that led to this report, Mr. Gares was described as “quite psychotic, [having] difficult engaging in a rational conversation.” The difficulties included scattered, off-topic thoughts, an inability to focus, and avoiding eye contact except when discussing his constitutional rights. Mr. Gares was described to have experienced a hallucination during the interview, and his description of the day of the attack was particularly scattered.

[48] This report also describes Mr. Gares’ childhood. He was an orphan and was adopted at one month old. During childhood he was bullied and would run away from home. He has a grade 6 education and was diagnosed with ADHD and prescribed Ritalin. (This detail differs from the grade 9 education referred to in Dr. Ferencz’s report.) Born in Vancouver, he arrived in Toronto in 2001 looking for work. He has worked in sales, tech design, as a roofer and for a moving company, but never for longer than a few months to around half a year.

[49] Mr. Gares has three children with his wife. Although he has been under a no communication order for years, he could not explain why. Mr. Gares could not confirm the third child had been born despite the pregnancy beginning some time ago. Mr. Gares told Dr. Gojer that he had been misdiagnosed and unnecessarily given anti-psychotic drugs. He was not currently taking any drugs. He did not experience hallucinations. He described “receiving requests from the television, request to join the revolution, but only in past tense.” Mr. Gares also stated that the British Columbia government had him under surveillance, that the process by which barcode scanners scanned those codes was occurring in his head and disrupting his sleep, and the televisions at the hospital were to blame. In the weeks preceding the offence Mr. Gares claimed to have been using cocaine, heroin, and crystal methamphetamine.

The report of Dr. Gojer dated September 23, 2017

[50] In his second report Dr. Gojer comes to the conclusion that Mr. Gares’ primary diagnosis is schizophrenia, a psychotic illness that has been present for several years and likely was present at the time of the offence. His opinion was that on a balance of probabilities Mr. Gares is not criminally responsible under s. 16 of the Code because his schizophrenia “prevented him from weighing the pros and cons of his actions and robbed him of the ability to exercise rational choice at the time of the allegations.” Dr. Gojer interprets Mr. Gares running away from the scene to suggest that he may have known he had done something legally wrong, but that “his severe thought disorder would have precluded him from knowing that his actions were morally wrong.”

[51] During the second interview with Mr. Gares, Dr. Gojer was again unable to meaningfully question him about the attack. Dr. Gojer based his opinion that the illness was likely operating at the time of the attack on Mr. Gares’ long standing history of schizophrenia and on the fact that the attack was unprovoked. Mr. Gares also demonstrated several features of schizophrenia, including “delusions, hallucinations, disorganized thought processes and bizarre behavior.” Mr. Gares does not regularly take medication, nor was he using medication at the time of the attack, or when the second interview took place at St. Joseph’s Healthcare in Hamilton.

[52] In preparing the second report, Dr. Gojer reviewed a larger number of consultations with doctors and social workers in greater detail than in his first report, including records from Mount Sinai and St. Michael’s hospitals and an additional interview with Mr. Gares not included in the August 8, 2017 report. By way of summary these are from four entries from Brockville Mental Health Centre from 2014 to 2015, six from Sunnybrook Hospital from 2011 to 2014, eight from CAMH between 2006 and 2016, and 2016 records from the Toronto South Detention Centre.

[53] The history reveals that Mr. Gares’ mental state fluctuates, sometimes rapidly, from periods of more pronounced paranoid thinking to periods where he is calm and cooperative. The latter coincides with Mr. Gares taking medication. Not all entries point to schizophrenia. In particular the exit report from CAMH in November 2016 suggested that Mr. Gares’ problems may be due to personality or behavioural issues rather than schizophrenia.

[54] In sum, Dr. Gojer diagnosed Mr. Gares as having schizophrenia, schizoaffective disorder, antisocial personality disorder, and problematic drug use. Like the first interview at Toronto South Detention Centre, during the second interview at the Hamilton hospital Mr. Gares continued to be quite psychotic, and had difficulty engaging in any form of rational conversation and with discussing the attacks at all. Also like the first report, Dr. Gojer noted that Mr. Gares reported being blind, which he is not—an issue that resurfaces in Dr. Gojer’s testimony. After the interview in Hamilton, Dr. Gojer learned that Mr. Gares assaulted a nurse and was transferred back to Toronto South Detention Centre.

The testimony of Dr. Gojer on April 6, 2018

[55] The Crown took no issue with Dr. Gojer’s qualifications as an expert in the field of forensic psychiatry. Dr. Gojer testified that after his two written reports, he reviewed additional documents and continued to hold the opinion that Mr. Gares is not criminally responsible for the attack on account of mental disorder under s. 16(1) of the Code. He acknowledged that his opinion “is dependent on how the court accepts certain evidence that is before the court.” He testified that Mr. Gares’s major mental illness was schizoaffective disorder, which combines psychotic symptoms related to schizophrenia and mood symptoms related to bipolar disorder.

[56] Dr. Gojer testified that he used a clinical method to diagnose Mr. Gares’s mental illness. He relied on some of the findings of Dr. Ferencz that in turn depended on the psychologist Dr. Losier who conducted several psychological tests. Dr. Gojer testified that all the psychological testing done on Mr. Gares was valid. In particular he described the structure interview conducted by Dr. Losier to be the “gold standard” to determine if someone is faking mental illness (“malingering”), and that Dr. Losier found that Mr. Gares’s was not malingering. In fact the report of Dr. Losier includes a diagnosis of “probable malingering.” The interpretation of malingering is a key point on which Dr. Gojer and Dr. Ferencz disagree.

[57] Dr. Gojer testified that he did not view schizoaffective disorder during the interviews, but that the multitude of medical evidence provided the basis for his opinion. This includes the nature of the unprovoked attack, the mother of the victim’s observations, the medical and psychiatric records beginning in 2005, and Mr. Gares’ court testimony. From his two interviews, Mr. Gares gave conflicting accounts about the day of the attack but he “acknowledges some aggressive act occurred, which involved him assaulting the young alleged victim.” (On cross examination Dr. Gojer clarified that the first interview was 1.5 hours long and took place on July 29, 2017, and that the second interview was 1 hour and took place on September 2, 2017).

[58] One collateral source on which Dr. Gojer relied were the notes from the ex-wife of Mr. Gares. She reported that Mr. Gares is stable when he takes his medication, but when he fails to take it he becomes aggressive and unwell. Dr. Gojer related this to the observations of bystanders, most notably the mother of the victim who noticed something was wrong with Mr. Gares just before the attack. Her testimony is closest in time to the attack. He also noted that Dr. Ferencz opted not to administer Mr. Gares with an antipsychotic drug around the time of Dr. Gojer’s second interview with Mr. Gares.

[59] Dr. Gojer referenced Mr. Gares’ highly fluctuating behaviour. For example, he punched a nurse unprovoked and for no reason and then denied it, demonstrating irrational behaviour and thinking in an event similar to the subject offence. This pattern of unprovoked aggression linked to his failure to take medication was mentioned elsewhere in his records.

[60] Later in his direct examination Dr. Gojer notes that some accounts of Mr. Gares lying are inaccurate and that Mr. Gares cannot maligner (fake) disorganized thoughts in the way that one can say “I’m hearing voices.” He notes that two psychiatrists, Dr. Iosif and Dr. Macdonald, diagnosed Mr. Gares with having a psychotic illness on two separate occasions. Still, he acknowledges that malingering is a possibility but that in the hospital in 2014 Mr. Gares did not want to be found not criminally responsible and malingered in the other direction, referred to as dissimulation, in an attempt to hide his illness.

[61] Dr. Gojer focused on Mr. Gares’ mental state at the time of the offence, which he found to both acknowledge that he was physically responsible but that forces beyond him compelled him to act the way he did. The diagnosis of malingering, Dr. Gojer noted, depends on the psychiatrist making that assessment, and the fact that his mental illness dates back to 2005 makes it harder to sustain that finding throughout to 2016.

[62] Dr. Gojer refers to over 25 hospital visits regarding eye problems as a potential somatic delusion (a preoccupation with health or organ problems). Dr. Gojer did not put much emphasis on post-offence conduct where Mr. Gares claims to not have mental illness when speaking to police officers and other individuals. He found that symptoms in the hospital including his disordered thoughts, and his belief that he saw his photo on the news after the attack, substantiate the psychosis finding.

[63] In cross examination, Crown counsel confirmed that in his August 8, 2017 report, Dr. Gojer did not come to a conclusion related to s. 16 because the interview was insufficient for such a finding. Before writing the second report, Dr. Gojer acknowledged that he did not review the video of Mr. Gares in the police car, the transcripts of Mr. Gares’ testimony, the mother of the victim’s statement, nor medical reports from both Dr. Iosif and Dr. MacDonald. Still Dr. Gojer confirmed he had “no doubt” that Mr. Gares’ mental illness was operative at the time of the alleged attack.

[64] Dr. Gojer agreed with Crown counsel that he could not confirm whether Mr. Gares suffered from delusions on the day of the attack, but that on a balance of probabilities, his opinion was that Mr. Gares’s delusional ideas would have affected his ability to distinguish right from wrong. He stated that “if a person acts on delusional ideas then the sense of morality is guided by the delusions.” Put another way, given the ten-year history of his mental illness it was his opinion that the likelihood of delusions not being present was low. He acknowledged that Mr. Gares did not talk about the delusions to himself or Dr. Ferencz, but he said that Mr. Gares’s file demonstrated that he was influenced by several delusions that could relate to the attack: thoughts around being persecuted, being grandiose and having unlimited power, being a very intelligent person, and somatic delusions. Dr. Gojer also noted that in his second interview he could not push the issue of the attack for fear of being assaulted himself as Mr. Gares was agitated and belligerent.

[65] Dr. Gojer indicated that Mr. Gares begins interviews by speaking coherently but when pressed for details his thoughts become disorganized. Dr. Gojer maintains that Mr. Gares has anti-social personality disorder, one aspect of which is to cause one to lie, among other behaviours (violence, recklessness, putting one’s self and others into harm’s way). In his reports Dr. Gojer does not highlight this disorder.

[66] Dr. Gojer explained that a psychotic episode is more likely given that there was no reason for the attack and that Mr. Gares has offered several contradictory and strange accounts for why the attack occurred. Crown counsel put to Dr. Gojer that because Mr. Gares cannot see his children he may have animosity toward children generally, which may have motivated the attack. Dr. Gojer maintained this would constitute irrational thinking. On the issue of whether drugs influenced the attack, Dr. Gojer referred to his history of drug use but found Mr. Gares’ statements about his most recent use of drugs to be unreliable (smoked marijuana and used crack cocaine that day), and points to officers who did not observe him to be intoxicated or confused in a way that would suggest recent drug use.

[67] When questioned by Crown counsel about the video of Mr. Gares in the police cruiser, Dr. Gojer’s perspective is that Mr. Gares was confused as to what charges led to his arrest. He interprets Mr. Gares asking if the police officers were going to shoot him relate to two possible reasons: fear of police brutality based on past experiences, or because of delusions around being persecuted. Dr. Gojer did not interpret the question, “Are you going to kill me?” as Mr. Gares feigning mental illness. He also acknowledged some of the comments appear to be lucid, which demonstrates the fluctuating state that Mr. Gares presented during interviews, adding: “when you say somebody’s psychotic, people are not psychotic for every single moment of time.” Finally, Dr. Gojer interprets Mr. Gares’ question to police officers, “Why are you putting me in jail?” as an indication that Mr. Gares cannot understand that he has done something morally wrong.

The report of the Crown psychiatrist Dr. Joseph Ferencz dated September 27, 2017

[68] In his report dated September 27, 2017, Dr. Ferencz concluded that Mr. Gares presented himself as mentally unwell in order to avoid legal responsibility for the attack. Dr. Ferencz does not exclude the possibility that a primary psychotic disorder was present in the past, but he “appreciated the nature and quality of his actions at the time of the index offence and knew their wrongfulness.”

[69] Contrary to the finding of schizoaffective disorder operative at the time of the offence made by Dr. Gojer, Dr. Ferencz described the overall psychiatric findings as follows: “Mr. Gares has a history of maladaptive psychological and social functioning, including repeated episodes of interpersonal violence, which is consistent with diagnoses of Antisocial Personality Disorder and Polysubstance Abuse.” During the assessment at the hospital Dr. Ferencz noted that Mr. Gares’ presentation fluctuated between being lucid and organized and being nonsensical and difficult to engage. This was not consistent with a primary psychotic illness, a view supported by Dr. Losier’s report. That Mr. Gares has lied in the past to be treated as mentally ill also factored into Dr. Ferencz’s opinion.

[70] Dr. Ferencz’s report reviews inpatient care from Sunnybrook, Brockville, CAMH, and St. Michael’s between 2011 and 2016; forensic assessments at CAMH in 2013 and 2014; and outpatient care between January and August 2016 involving over 30 emergency room visits. The summary refers to poor compliance with taking medication prescribed by family doctors and attending the St. Michael’s Hospital ER on August 1, 2016, four days before the attack. He did not present any psychotic symptoms. Two days before the incident he became aggressive in demanding pain medication from his family doctor. One day prior to the attack his probation officer found that he was “cursing that he was not prescribed pain killing medication by a number of health care providers” while rubbing his eyes. Dr. Ferencz notes the same drug use as Dr. Gojer during the time preceding the offence, including marijuana, cocaine and crystal methamphetamine.

[71] In hospital following the offence, Mr. Gares is reported to have said, “I don’t know why they’ve kept me in jail. I didn’t do anything wrong.” (This same perplexed response was noted by Dr. Gojer in cross examination.) At the hospital he fluctuates between moments of calm and aggression, in particular threatening a nurse with violence against her and her children. Following that incident Dr. Ferencz interviewed Mr. Gares. During formal interviews he had difficulty answering questions, staying focused, and instead diverted into nonsensical ramblings and denied having mental illness. Dr. Ferencz referred to Mr. Gares’ difficulties during formal interviews compared to his ability with informal conversations with staff and other patients as “striking.”

[72] After Mr. Gares’ interview with Dr. Gojer, the accused told Dr. Ferencz that he now understood that he had Schizoaffective Disorder and wished to take the medication Dr. Gojer had prescribed. However, medication was not offered due to Mr. Gares’ “inconsistent and atypical presentation” and because the hospital felt that medication “would only serve to cloud the current assessment.” Toward the end of his stay in hospital he punched a staff member twice in the head in an unprovoked and unexpected assault. That same day he denied that the assault took place in an interview with Dr. Ferencz. His behaviour continued to fluctuate, verging from verbally abusive and aggressive and generally noncompliant with requests by hospital staff members to being cooperative with the officers who returned him to the Toronto South Detention Centre.

[73] The report of Dr. Ferencz includes some childhood details that Dr. Gojer does not mention, namely that Mr. Gares reported physical and verbal abuse by his adoptive parents between the ages of 8 until 12, allegations his adoptive mother denies. There is also reference to Mr. Gares denying he experienced sexual abuse but also reporting one incident when he was a child. After being expelled in grade 8 he completed grade 9 at an alternative high school. He moved several times between his first arrival in Toronto in 2001 and his return in 2008, and began receiving ODSP assistance in 2010.

[74] The report of Dr. Ferencz also includes the psychological assessment conducted by Dr. Losier dated September 19, 2017. That report is not referenced in Dr. Gojer’s written reports. The test results “support the notion that Mr. Gares is actively controlling the natural history of his purported psychiatric symptoms combined with attempts at a combination of positive and negative impression management approaches, highlighting a possible psychological naiveté, difficulty interpreting items or intentionally magnifying his symptoms.” Dr. Losier interprets that Mr. Gares’ medical and psychological history dating back to his ADHD in childhood would support a diagnosis of antisocial personality disorder and polysubstance abuse, but not for a primary psychotic disorder. The report also notes his history of feigning and exaggerating symptoms around mental illness, in particular for the current NCR assessment, supports a finding of probable malingering of psychological symptoms.

[75] Dr. Ferencz’s report also includes this passage regarding threats against children:

[T]he records indicate that in 2013 Mr. Gares threatened to kill elementary school aged children when he was angered by the Children’s Aid Society’s refusal to allow him to access to his own children. His lawyer felt these threats to be sufficiently serious to necessitate informing the police. The police then issued a warning to the community. Upon his release from jail in 2015, the police took what they described as an “unusual” step of issuing a warning to schools given his previous threats against school-aged children and their belief that he posed a “threat to public safety.”

[76] Finally, in regards to the attack, Dr. Ferencz agrees with Dr. Gojer that Mr. Gares is a poor historian. Mr. Gares denied the events took place, at other times conceding that some form of contact occurred, ranging from a gentle contact to full on kicking the child. He has not expressed remorse and he has denied injuring the child to a significant degree. Running away after the incident and attempting to hide in a yard, saying “I give up” before being arrested “strongly suggests an awareness of the wrongfulness of his actions and an attempt to evade detection.” Dr. Ferencz found that the words and actions of Mr. Gares in the police car did not demonstrate disorganized thinking or hallucinations. He was coherent in the police car, in the police station, and enroute to the hospital, when he asked to be taken to the “psych ward.” Mr. Gares’ subsequent behaviour was not consistent with a major psychotic disorder.

The testimony of Dr. Ferencz on December 15, 2017

[77] In direct examination Dr. Ferencz highlighted that Mr. Gares’ behaviour was quite different in informal settings at the hospital compared to formal interviews. One example would be that Mr. Gares claimed to receive messages from the television but could watch television without incident. His fluctuating symptoms piqued the curiosity of health care staff about whether he was misrepresenting his mental state.

[78] Dr. Ferencz maintained that Mr. Gares does not have schizophrenia nor a major mood disorder such as bipolar disorder. That opinion precludes a finding of schizoaffective disorder, which Dr. Ferencz explained is a combination of schizophrenia and a significant mood disorder. The strong reactions of the accused to not having his needs met promptly by hospital staff is consistent with antisocial disorder and not with schizophrenia. Dr. Ferencz also observed that the medical history does not support a finding of schizophrenia, noting in particular that the first hospital visit for a psychiatric illness resulted in him responding to medication very quickly. That is not typical for schizophrenia. Chronic schizophrenia is more typically characterized by multiple lengthy hospitalizations with short healthier periods. One responds to treatment only if they continue to take it regularly. Further, his “remarkably inconsistent” explanations for his post-offence conduct are also atypical with schizophrenia. This is because disorganized thoughts due to schizophrenia demonstrate thoughts that do not connect well. They cannot communicate coherently. In particular, “they can’t put together a coherent argument and then go to another argument.”

[79] Regarding Mr. Gares’ testimony, Dr. Ferencz found that it was coherent until he is asked to discuss the alleged offence, and that he was motivated to not be found criminally responsible.

[80] In cross-examination, Dr. Ferencz confirmed that in his view Mr. Gares is malingering. On this topic of feigning mental illness, defence counsel pointed Dr. Ferencz to the section of his report that relied on a sentence of Dr. Losier’s report which was subsequently corrected. The sentence first read, “This classification suggested the respondents failing within this category have an increased likelihood of feigning” and is included in Dr. Ferencz’s report. The corrected sentence reads, “This classification suggested that respondents falling within this category do not have an increased likelihood of feigning.” Dr. Ferencz replied that he was not sure if he had seen (or if he was sent) the correction letter, but it was his understanding that Dr. Losier’s general conclusions were not impacted by that change. It also did not change the opinion of Dr. Ferencz.

[81] Defence counsel also quoted passages of Dr. Ferencz’s published work, including one from a chapter entitled “Mental Illness, Confessions and Inculpatory Statements” from the 2013 book “Law and Mental Disorder.” This dealt with an accused person’s motivation to lie when they are suffering from mental illness: “The problem of course is that where the accused suffers from mental illness his motivation for lying may be based on psychosis and not simply the wish to mislead or provide answers calculated to exonerate.” Dr. Ferencz acknowledged that was possible.

[82] Regarding drug use preceding the attack, defence counsel also noted that Mr. Gares was not found with any drugs or drug paraphernalia that have been mentioned in his files—in particular marijuana, Percocets, Oxycodone, cocaine, crack cocaine, crystal methamphetamine—and that the arresting officer did not believe that Mr. Gares was under the influence of drugs at the time of the arrest. In his 23 visits to the ER between April 2016 and arrest on August 5, 2016 he admitted to using crystal methamphetamine once (on April 17, 2016), marijuana once (April 27, 2016), and alcohol once (April 30, 2016). Over the same period he was speaking to himself and behaving strangely and frequently presented complaints for which medical professionals found no cause. Mr. Gares also visited Mount Sinai 14 times and indicated similar drug use rates. During the last visit on August 1 2016, “he was dishevelled and had confused conversation”, which Dr. Ferencz did not include in his report. Counsel also confirmed that Dr. Ferencz understood that the mother of the victim observed Mr. Gares acting strangely directly before the attack.

Relevant Criminal Code Provisions

Defence of mental disorder

16(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

Presumption

(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.

Burden of proof

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue. R.S., 1985, c. C-46, s. 16; R.S., 1985, c. 27 (1st Supp.), s. 185(F); 1991, c. 43, s.2.

Definitions

s. 2 “mental disorder” means a disease of the mind.

Interpretation – s. 672.1(1)

Verdict of not criminally responsible on account of mental disorder means a verdict that the accused committed the act or made the omission that formed the basis of the offence with which the accused is charged but is not criminally responsible on account of mental disorder.

Verdict of not criminally responsible on account of mental disorder

672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder.

Hearing to be held by a court

672.45 (1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered in respect of an accused, the court may of its own motion, and shall on application by the accused or the prosecutor, hold a disposition hearing.

Transmittal of transcript to Review Board

(1.1) If the court does not hold a hearing under subsection (1), it shall send without delay, following the verdict, in original or copied form, any transcript of the court proceedings in respect of the accused, any other document or information related to the proceedings, and all exhibits filed with it, to the Review Board that has jurisdiction in respect of the matter, if the transcript, document, information or exhibits are in its possession.

Disposition to be made

(2) At a disposition hearing, the court shall make a disposition in respect of the accused, if it is satisfied that it can readily do so and that a disposition should be made without delay.

Review Board to make disposition where court does not

672.47 (1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered and the court makes no disposition in respect of an accused, the Review Board shall, as soon as is practicable but not later than forty-five days after the verdict was rendered, hold a hearing and make a disposition (2) Where the court is satisfied that there are exceptional circumstances that warrant it, the court may extend the time for holding a hearing under subsection (1) to a maximum of ninety days after the verdict was rendered.

Where disposition made by court

(3) Where a court makes a disposition under section 672.54 other than an absolute discharge in respect of an accused, the Review Board shall hold a hearing on a day not later than the day on which the disposition ceases to be in force, and not later than ninety days after the disposition was made, and shall make a disposition in respect of the accused.

Dispositions that may be made

672.54 When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances: (a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely; (b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or (c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

Significant threat to safety of public

672.5401 For the purposes of section 672.54, a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature but not necessarily violent. 2014, c. 6, s. 10.

Victim impact statement

672.541 If a verdict of not criminally responsible on account of mental disorder has rendered in respect of an accused, the court or Review Board shall (a) at a hearing held under section 672.45, 672.47, 672.64, 672.81 or 672.82 or subsection 672.84(5), take into consideration any statement filed by a victim in accordance with subsection 672.5(14) in determining the appropriate disposition or conditions under section 672.54, to the extent that the statement is relevant to its consideration of the criteria set out in section 672.54; (b) at a hearing held under section 672.64 or subsection 672.84(3), take into consideration any statement filed by a victim in accordance with subsection 672.5(14), to the extent that the statement is relevant to its consideration of the criteria set out in subsection 672.64(1) or 672.84(3), as the case may be, in deciding whether to find that the accused is a high-risk accused, or to revoke such a finding; and (c) at a hearing held under section 672.81 or 672.82 in respect of a high-risk accused, take into consideration any statement filed by a victim in accordance with subsection 672.5(14) in determining whether to refer to the court for review the finding that the accused is a high-risk accused, to the extent that the statement is relevant to its consideration of the criteria set out in subsection 672.84(1)

Criminal Code - Additional conditions – Safety and Security

672.542 When a court or Review Board holds a hearing referred to in section 672.5, the court or Review Board shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the disposition that the accused (a) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the disposition, or refrain from going to any place specified in the disposition; or (b) comply with any other condition specified in the disposition that the court or Review Board considers necessary to ensure the safety and security of those persons.

672.55 (1) No disposition made under section 672.54 shall direct that any psychiatric or other treatment of the accused be carried out or that the accused submit to such treatment except that the disposition may include a condition regarding psychiatric or other treatment where the accused has consented to the condition and the court or Review Board considers the condition to be reasonable and necessary in the interests of the accused.

Analysis

[83] For no apparent reason or motive the accused assaulted the 5 year old victim and caused bodily harm. Subject to the provisions of s. 16 of the Criminal Code the guilt of the accused has been made out beyond a reasonable doubt.

[84] The accused has a lengthy criminal and psychiatric history. Two qualified forensic psychiatrists have reviewed his history, filed reports and testified on this hearing. They agree that the accused is a poor historian and unreliable source of information about his past and the actions related to the attack on August 5, 2016. They agree that he likely suffered from a mental disorder at the time of the attack. They disagree as to the nature of the mental disorder. They disagree as to whether the accused was capable of knowing that his actions were wrong.

[85] The accused has raised the issue and bears the burden of proving on a balance of probabilities that he should be exempt from criminal responsibility for his attack on the victim. For reasons that follow I am not satisfied that he has met that onus.

[86] Assessing mental disorder, capacity and intent is not a science and the lines defining them are not black and white: see R. v. Downs, 2014 ONCA 20, at para. 70.

[87] The term “disease of the mind” is a legal term that contains a substantial medical component as well as a legal or policy component. It includes any illness, disorder or abnormal condition that impairs a person’s mind and its functioning. It does not include states that an accused has created, for example, by voluntary consumption of alcohol or drugs. It does not include temporary mental states, such as hysteria or concussion: see R. v. Dobson, 2015 ONSC 2865, at paras. 67-76; R. v. Onachie, 2015 ONSC 7928, at para. 11.

[88] Under the second branch of s. 16(1) of the Criminal Code the court must determine “whether an accused was rendered incapable, by the fact of his mental disorder, of knowing that the act committed was one he ought not have done”: see R. v. Chaulk, [1990] 3 S.C.R. 1303 at 1354. “The issue is whether the accused possessed the capacity present in the ordinary person to know that the act in question was wrong having regard to the everyday standards of the ordinary person”: see R. v. Oommen, [1994] 2 S.C.R. 507, at p. 520; R. v. McBride, 2018 ONCA 323, at para. 48.

[89] In Onachie at paras. 22 and 23 MacDonnell J. addressed the issue of “wrong” for the purposes of s. 16 of the Criminal Code:

[22] “Wrong”, for the purposes of s. 16, means morally wrong, that is, something that a person should not do according to the accepted standards of our society. In order to know that the conduct in question is wrong, the person must have more than a general capacity to know right from wrong. It is not sufficient that the person has the ability in general terms to distinguish between acts that are right and acts that are wrong according to the standards of society. A person may well be aware that an act is usually contrary to societal standards and therefore wrong but, by reason of mental disorder, may be incapable of knowing that the act is wrong in the particular circumstances in which person finds himself.

[23] The question on this second branch is not concerned with actual knowledge but with capacity for knowledge. If, notwithstanding a mental disorder, an accused has the capacity to know that his conduct is morally wrong he is not exempt from criminal responsibility even if he does not actually know the conduct is morally wrong.

[90] The accused’s person’s mental disorder must render him 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 accord with those standards: see R. v. Campione, 2015 ONCA 67, at para. 41.

[91] I have reviewed and considered other judicial decisions involving apparently unprovoked attacks resulting in a finding of not criminally responsible. In my view they are distinguishable from the case before me.

[92] In R. v. Prinoski, 2005 ONCJ 291 the accused assaulted three couples who were strangers to him at a subway station in Toronto. A forensic psychiatrist testified that Mr. Prinoski suffered from a major mental illness, likely schizophrenia and that he had a personality disorder. The trial judge found that the accused’s auditory hallucinations and delusional misperceptions rendered him incapable of knowing that the unprovoked assaults were morally wrong. The psychiatrist acknowledged “some uncertainty with respect to the issues of both mental disorder and the underpinnings of (the accused’s) actions at the material time.” The court did not receive a report or testimony from a second psychiatrist.

[93] R. v. B.A.B., 2011 SKQB 195 involved an unprovoked attack on the victim who suffered 22 stab wounds. The Crown and defence agreed that the accused suffered from schizophrenia at the time of the attack. Three mental health professionals testified and each opined that the accused’s mental illness deprived her of the ability to know that her actions were morally wrong.

[94] In R. v. Brown, 2012 ONSC 2942 there was an unprovoked assault on a stranger whom the accused felt had disrespected him. The accused pleaded guilty. The Crown then applied pursuant to s. 672.12 of the Criminal Code for an assessment of whether the accused was not criminally responsible. A psychiatrist nominated by the court interviewed the accused and testified that a not criminally responsible verdict was not appropriate. The psychiatrist candidly said that he struggled with whether the accused was capable of appreciating that what he did was wrong. The accused did not testify. The trial judge found that Mr. Brown’s version of events to the psychiatrist was “completely delusional.” Notwithstanding the psychiatric opinion the trial judge found that a not criminally responsible verdict was made out based on the entirety of the evidence before him. The verdict was upheld on appeal.

[95] In R. v. Flanagan, 2015 ONSC 6840 the accused stabbed his neighbour in the back while suffering from a mental disorder. Two psychiatrists testified and agreed that the accused suffered from schizoaffective disorder and that as a result, he did not know that the stabbing was wrong. The court found that he lacked the capacity to know that the stabbing was something he ought not to do.

[96] The fact that Mr. Gares suffered from a mental disorder at the time of the attack and that the attack was unprovoked does not satisfy the further requirement related to capacity to know that what he was doing was morally wrong.

[97] Under s. 16 of the Criminal Code criminal responsibility for one’s actions is not premised on a perfectly operating mind. The opinion of Dr. Gojer that the accused should be found not criminally responsible for his attack is premised significantly on information provided by the accused to Dr. Gojer and other health care professionals over the years. A critical component of that assessment is Dr. Gojer’s opinion that the accused was not malingering or exaggerating psychiatric symptoms in order to achieve a not criminally responsible verdict.

[98] The fact that someone with a mental disorder is an unreliable historian is not unusual and may well indicate a psychosis or other debilitating condition. However, where he is found to exaggerate or fabricate symptoms in order to achieve a result any conclusion based on information from the person must be approached with skepticism.

[99] In his report dated September 27, 2017 Dr. Ferencz agreed with the conclusions reached by Dr. Losier. He referred to admissions by the accused that he had feigned symptoms of mental illness in the past in order to obtain certain results (e.g.: become eligible for ODSP; to have access to certain medication; to go to a hospital rather than a jail). The accused had “successfully convinced physicians that he was psychiatrically ill when it has suited his needs.” He had admitted lying about hearing voices to psychiatrists who dealt with him in the past. Hallucinations about hearing voices are often a component of a finding of psychosis.

[100] The conduct of the accused immediately after and in the hours following the attack indicates that he was aware that he had done something wrong. The legal test is whether he was capable of knowing that what he had done was morally wrong. His flight from the scene included dodging a civilian who tried to block his escape. He ended up hiding in a yard and surrendered to police who were searching for him with canine support. Dr. Gojer’s view is that the flight from the scene may indicate that he was aware of doing something legally wrong but not morally wrong. I fail to see how that conclusion is more likely based on the interactions thereafter with the police. The accused is responsive to questions, including information about his right to counsel and right to remain silent.

[101] Dr. Gojer and Dr. Ferencz were both candid in acknowledging the difficulties in offering a firm conclusion with respect to a not criminally responsible verdict. Dr. Ferencz reported that it is not possible to categorically exclude a primary psychotic disorder having been active at some time in the past. However, he was of the view (as was Dr. Losier) that the accused did not present with symptoms that are consistent with a primary psychotic disorder at the relevant time. Based on the conflicting professional opinions I am unable to find that the accused has met the onus that rests on him to invoke the finding of not criminally responsible.

[102] In the result I find the accused guilty of assault causing bodily harm. I am grateful to both counsel for the thorough and thoughtful manner in which this case has been handled and presented.

B.P. O’MARRA, J.

Released: July 27, 2018

COURT FILE NO.: 17-10000598-000 DATE: 20180727 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SIMON GARES REASONS FOR DECISION S. 16 OF THE CRIMINAL CODE B.P. O’MARRA, J. Released: July 27, 2018