COURT FILE NO.: CR-16-1893 DATE: 20181221 CORRECTING DATE: 2018 07 30

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN NJ Bridge and Keeley Holmes, for the Crown

- and -

TRAE WORRIE Michael Moon and Leah Gensey, for the Accused

BARNES J.

CORRECTION NOTICE

REASONS FOR DECISION RELEASED DECEMBER 21, 2018

July 30, 2019: Corrections made to paras. 70, 71 and 72

Para. 70 - last line “Thus, Mr. Worrie’s out of court statement contains inculpatory and exculpatory statements.” taken out completely.

Now reads:

70Mr. Worrie will not testify. His out of court statement is offered for the truth of its contents within the context of the not criminally responsible defence. Specifically, that he killed his grandfather and attempted to kill his grandmother, and that at the time he committed these acts, he was suffering from a mental disorder such that he was incapable of knowing that his actions were wrong.

Para. 71 – entire paragraph deleted.

71Mr. Worrie’s inculpatory statements are admissions – that he killed his grandfather and grandmother. Mr. Worrie submits that these statements fall under the admissions against interest exception to the hearsay rule and are admissible against him: Rojas, at para. 35.

Para 72 and onwards now shifts up one paragraph number.

72Mr. Worrie’s exculpatory statements are not admissible unless the Crown seeks to admit his out of court statements into evidence: Rojas, at para. 36. The Crown does not wish to admit Mr. Worrie’s out of court statements into evidence. I am satisfied that the examinations of Drs. Komer and Green were only intended to persuade the trier of fact that there were inconsistencies in Mr. Worrie’s statement to them and thus the jury should accord little or no weight to Dr. Komer’s opinion. Therefore, Mr. Worrie’s exculpatory out of court statements are not admissible for the truth of their contents and are subject to the limitations outlined below.

Para 72 (now 71) First sentence changed. Now reads:

71Mr. Worrie’s statements are exculpatory on the NCR issue and not admissible unless the Crown seeks to admit his out of court statements into evidence: Rojas, at para. 36. The Crown does not wish to admit Mr. Worrie’s out of court statements into evidence. I am satisfied that the examinations of Drs. Komer and Green were only intended to persuade the trier of fact that there were inconsistencies in Mr. Worrie’s statement to them and thus the jury should accord little or no weight to Dr. Komer’s opinion. Therefore, Mr. Worrie’s exculpatory out of court statements are not admissible for the truth of their contents and are subject to the limitations outlined below.

ORIGINAL REASONS FOR RULING USE OF PROTECTED STATEMENTS NOW CORRECTED

BARNES J.

1Mr. Trae Worrie is charged with one count of second degree murder and one count of attempted murder. The jury has heard evidence that on April 16, 2015, Trae Worrie killed his grandfather, Samuel Campbell, and attempted to kill his grandmother, Juanita Campbell. Mr. Worrie says he is not criminally responsible for these offences by reason of suffering from a mental illness which rendered him incapable of knowing that his actions were wrong at the time he committed the offences.

2Mr. Worrie did not testify at trial. During a court-ordered assessment, Mr. Worrie made statements to Dr. Komer, a forensic psychiatrist, and Dr. Green, a forensic psychologist, who was part of the assessment team. These out of court statements are protected statements pursuant to section 672.21 of the Criminal Code. Mr. Worrie did not testify at trial. These statements are hearsay. Mr. Worrie seeks a ruling permitting the jury to consider these statements for the truth of their contents in determining whether he is criminally responsible for the offences. The Crown is opposed.

BACKGROUND FACTS

Juanita Campbell

3I have considered all the evidence pertinent to this application, however, I only summarize some of that evidence. Juanita Campbell told the jury that on April 16, 2015, she was in the kitchen when she heard Mr. Campbell call her name. She went to check on him and found him on the floor. She said Mr. Worrie threw a wheelchair on Mr. Campbell and attacked her with a knife. She said he stabbed her a number of times as she struggled with him. She told the jury that she made it outside the home and cried for help. She said Mr. Worrie left her alone once she was outside.

4There was evidence from the neighbor who discovered Ms. Campbell outside the home and called the police and paramedics. A number of witnesses testified that they saw a man running in the neighborhood a short time after the attack. A bloody t-shirt was found in a neighbour’s driveway along the route Mr. Worrie fled after the attack. There was police forensic evidence showing blood at the murder scene leading to the basement kitchen and out of the house. The blood-stained murder weapon, the knife, was discovered in the basement kitchen sink.

5There was evidence that Mr. Worrie called a taxi company, and called and texted a number of friends in an effort to get a ride away from the neighborhood minutes after the attacks took place. Officer Cardi told the jury that he arrested Mr. Worrie in the neighborhood. He gave Mr. Worrie his rights to counsel which Mr. Worrie understood. Officer Cardi said on route to the police station he and Mr. Worrie had a brief conversation. He said Mr. Worrie said he was telepathic and could put a barbecue hot dog in Officer Cardi’s head and one day he and Officer Cardi will have a hot dog and a drink together.

Dr. Komer

6The defence called Dr. William Komer as a forensic psychiatrist with expertise to offer an opinion on whether Mr. Trae Worrie is not criminally responsible and was suffering from a major mental illness at the time of the offences. Pursuant to a court order, Dr. Komer assessed Mr. Worrie on May 21, 2015 to render an opinion on whether Mr. Worrie was not criminally responsible for the offences. Dr. Komer met Mr. Worrie some 19 times. He told the jury that Mr. Worrie showed symptoms of a major mental illness. Dr. Komer concluded that Mr. Worrie suffers from a major mental illness and is not criminally responsible for the offences.

7Part of the statements Mr. Worrie made to Dr. Komer are recorded in Dr. Komer’s September 3, 2015 report as follows:

Mr. Worrie said that Jesus had to do with his case. He said he had to kill his family including his grandparents and go to a different place and kill. He said Jesus told him to go forth and do it and kill his grandparents to escape the incubator. He spoke of his offence involving a merciful killing. While speaking of this, he said he apologized to Jesus telepathically, and stated [that I got in quotations] “he can hear me,” [end of quotations.] He said he wanted to apologize to Jesus because it sounds terrible about Jesus telling him to kill his grandparents. He said he prayed to Jesus for freedom from the incubator and then Jesus told him to kill his grandparents and family. He said Jesus told him this, [quote] “spiritually,” [end of quotes] and he hears Jesus like hearing the incubator. He spoke of Jesus’ voice being projected in his head. He then smiled again and said that Jesus talked to him and told him to apologize for speaking about him. I questioned Mr. Worrie if he felt his actions were good or bad. He said he wanted freedom from the incubator which talked to him on a daily basis. He said the government, family and friends could be heard through the incubator. He stated [and this is a quote] “I thought it was something good,” [end of quote] because Jesus gave him approval to do it. He said at the time he did not think about being charged. He said he hopes to be acquitted, have his charges cleared and be set free. Mr. Worrie said that Jesus told him to go forth. He also said the government told him to kill his family through the incubator. He said he needed to listen in order to be free from the incubator.

8Dr. Komer explained that malingering refers to someone who is trying to feign or fake a mental illness for secondary gain, such as to try to get out of trouble with the law. He said in his expert opinion that Trae Worrie was not malingering or feigning symptoms. Dr. Komer said thought disorder is very difficult to fake. He explained that this is when a person gives scattered irrelevant responses and is not coherent.

9Dr. Komer said there is evidence that Trae Worrie was not malingering:

• Months before the incident, he was observed by family and friends to behave abnormally;
• He was taken to a hospital and committed for treatment on a Form 1 under the Ontario Mental Health Act, R.S.O. 1990, c. M.7;
• He saw his family physician who prescribed antipsychotic medication;
• There is a history of abnormal behavior documented by family and friends;
• Trae Worrie’s parents were sleeping outside his bedroom at night because they were concerned about him;
• His family had been trying to get him help for his problem;
• He had a good relationship with his grandfather and had no reason to want to kill him;
• It requires a great deal of sophistication to concoct all of the symptoms prior to the incident;
• Trae Worrie did not agree that he had a mental illness;
• He said he did not need or want treatment;
• Trae Worrie does not understand that he has a mental illness;
• He did not tell Dr. Komer that he had a mental illness;
• He said he did not have hallucinations;
• He did not try to portray that he was hearing voices;
• When he was admitted to Maplehurst, he said he did not have a psychiatric history;
• Family, friends, and medical professionals who have observed him say he has a mental illness; and
• Hospital staff noted that sometimes he would talk and laugh to himself.

10Dr. Komer said the odds of Trae Worrie malingering are astronomically low. Dr. Komer said Trae Worrie is fit for trial but he still reports that he is under the influence of the incubator. He said he has diagnosed him with schizoaffective disorder. This is a major mental illness. He said individuals with this diagnosis experience psychotic symptoms, hallucinations, delusions, and disorganized thinking.

11Dr. Komer said that, at the time Mr. Worrie committed these offences, it is his opinion that Mr. Worrie’s mental illness affected his knowledge of the wrongfulness of his actions. It affected his ability to perceive things rationally and make a rational choice about the wrongfulness of his actions. He explained that Mr. Worrie was incapable of knowing that his actions were wrong according to the moral standards of society. Mr. Worrie believed that the government told him to kill his grandfather, his grandmother, other family members, and friends. He was to kill them in order to be free of the incubator. He said Mr. Worrie believed the government was telling him to do this.

12He said Mr. Worrie talked about praying to God and getting direction. He said God told him to do what he did. He said he would have still done it even if a police officer was present. He said Mr. Worrie told him that he believed that other members of society would understand why he did what he did.

13Dr. Komer said that in Mr. Worrie’s own mind, he thinks others would accept what he had done. He said Mr. Worrie repeatedly said that God, Jesus, Obama, and Harper are all people who told him he was going to be acquitted. According to Mr. Worrie he was getting direction from voices telling him to do what he did and he did not believe what he did was wrong. Dr. Komer concluded that, in his opinion, Mr. Worrie was not criminally responsible for his actions at the time he committed the offence because of a mental disorder.

Dr. Green

14The Crown called Dr. Green in reply. She testified as an as an expert in the area of forensic psychological assessment, both in relation to the interpretation of psychological tests as well as forensic observations in that context. Dr. Green said she first met Trae Worrie at an admission interview on May 21, 2015. She was there as part of the interview team led by Dr. Komer. Present were Dr. Komer, her psychometrist, nursing staff, and maybe a recreational therapist.

15She said the admission package included clinical records and the Crown brief. There was also a note from Dr. Gojer. Dr. Green said she observed Trae Worrie to have pressured speech when describing delusions: “he had a low tone, mumbled and his speech felt rehearsed.” She said his presentation did not feel like a true presentation. Dr. Green said Dr. Komer directed her to conduct personality testing, some cognitive screening, as well as to look at symptoms of over-reporting and under-reporting.

16Dr. Green said that, in addition to the testing, she considers information from the social worker, which includes a lot of interviews of family members, nursing notes, and observations and information from the police reports. She will also consider the results of tests administered by her psychometrist. Dr. Green said her role was to assist Dr. Komer with his opinion on the not criminally responsible question.

17Dr. Green said the psychometric testing of Trae Worrie began around June 2, 2015. The pyschometrist did the testing over a number of days. The first test was the WRATR test, which tested Trae Worrie’s cognitive abilities such as, for example, his reading abilities. Trae Worrie scored 51 out of 55, a high score, suggesting he is reading at a grade 12 level. He did really well on this test.

18On June 2, 2018, the personality assessment inventory test was administered. Trae Worrie’s profile was determined to be invalid. This meant that Trae Worrie was endorsing a lot of uncommon themes. Dr. Green said because of the invalid score, she could not rely on the personality assessment inventory test for anything.

19On June 3, 2015, the SILS test was administered to test crystallized intelligence and fluid intelligence. She said she could not explain Trae Worrie’s low score on the crystallized intelligence test. The second test, the fluid intelligence test, is a block abstraction test. He had average results. Dr. Green said his average test results does not support the schizophrenia diagnosis. She said schizophrenia patients are stuck in rigid thought patterns and usually do not do well on the abstract tests.

20Dr. Green said it is unusual when a patient scores relatively well on both the block pattern test and the abstraction test. Dr. Green said people with a true psychotic disorder usually score low on the test. The Minnesota Multiphasic personality test scores indicated that he was contradicting himself on his answers. She did not reach any conclusion based on the results of this test.

21An Anger Disorder test was administered. Dr. Green said that because of information she had of fights with his family, she concluded that the test result was not consistent with his past history of conflict with his family. The scores indicated that Trae Worrie had a high suspicion of people in his circle and she recommended cognitive interventions to deal with this.

22The psychometrist also administered the screening test for malingered symptoms – the SIMS test. Dr. Green said malingering refers to faking a psychiatric illness. She said Trae Worrie took the test on June 8, 2015. The SIMS test has a number of subscales. Trae Worrie did not have elevated scores on the neurological impairment subscale. His score on the affective disorder subscale was not elevated. His score on the amnestic disorders subscale was not elevated.

23Dr. Green said Trae Worrie’s scores were elevated on the psychosis subscale in item 30 on that test. He marked as true this statement “the voices that I hear which others do not hear has – have never stopped since it – they happen”. Dr. Green said the fact that he marked as true “that they never stopped” is atypical of persons who are psychotic.

24Dr. Green said Trae Worrie ticked ‘true’ to on item 58, which said that “One day all of a sudden I began to hear one or more voices that other people couldn’t hear”. Dr. Green said that, typically, people who are psychotic do not just start to hear voices one day. There is a slow progression.

25Dr. Green said Trae Worrie’s results endorsed the low intelligence indication of an attempt to present lower cognitive functioning. His total score on the SIMS was 16. The clinical cut-off for determining whether a person is a genuine responder versus one who is malingering is 14. She described it as ruling out false positives from true negatives. That is when you want to rule out someone who is malingering. She said the SIMS is a well-accepted test.

26Dr. Green said that prior to interviewing Mr. Worrie on July 22, 2015, she reviewed his scores on the MFAST test. She said this is a screening test for malingering. This test is aimed at uncovering disingenuous psychiatric symptoms. Dr. Green said MFAST test results provided no evidence that Trae Worrie was malingering. Dr. Green said there was some inconsistency in Trae Worrie’s responses between the SIMS test and the MFAST test. Dr. Green said the inconsistency did not lead her to conclude that Trae Worrie was malingering. She said that the advantage of psychological tests is that they are objective.

27Dr. Green said the fact that Trae Worrie was writing on the PAI test may have affected his ability to attend to and carefully respond to the items. Dr. Green said that when she interviewed Trae Worrie, he was cooperative and his mood was stable. He would smile without being appropriate to the context. She said this was odd behaviour. His speech was clear and coherent. He was well groomed and fashionably dressed. He had good hygiene. He was oriented to time, person and place. He was lucid. He knew where he was and what day it was. There were no physical abnormalities such as him slouching over. This is one of the symptoms of catatonic schizophrenia. Dr. Green said she did not observe this in him.

28Dr. Green said Trae Worrie immediately started telling her that he was telepathic. She said this was atypical for schizophrenic patients. Dr. Green also said Trae Worrie at one point said the government was placing a screw driver in his ear at that moment and he demonstrated no reaction to this internal stimuli. He was not looking around. Dr. Green said if someone is experiencing hallucinations, there should be observable evidence that they are experiencing them. Dr. Green said Trae Worrie was responsive to her questioning.

29Dr. Green said that he was able to give a coherent personal history. Dr. Green said this is not typical of someone experiencing psychosis. It is not unheard of, just not the norm. She said you usually have to elicit delusional ideas for people suffering psychosis. She said Trae Worrie admitted to skipping classes because of the incubator, saying that his family would be raped if he did not leave. He said he was on academic withdrawal and he felt ashamed by this. He said he stayed in his apartment just living, spending money, not cooking, buying pizza and things every day”. Dr. Green said inconsistencies between what Trae Worrie told her and what others told her would be brought to Dr. Komer’s attention.

30Dr. Green said Trae Worrie said he was a marihuana smoker and he had tried oxycodone for two weeks when he was 17 years old. Trae Worrie said his last use of opiates was at the end of March or early April, stopping approximately one week before the offences. Dr. Green said Trae Worrie did not endorse the use of other illicit substances. She said he reported prescription of Risperidone for depression two weeks before the offences.

31Dr. Green said Trae Worrie spoke about becoming telepathic at an AB-Soul concert and having a contract with the Illuminati. Dr. Green said Trae Worrie said the incubator allows people to communicate telepathically with him. He said the incubator would come at night and put needles in his balls and take his semen. Dr. Green said Trae Worrie expressed distress caused by the incubator, however, he appeared to vacillate during the interview. He said he made friends with people who wanted him to kill his family. He said these friends were four girls who work for the United States government.

32Dr. Green said Trae Worrie said God commanded him to kill his grandparents and his parents. It was their time to go. He did not feel bad, just relief. Dr. Green said inconsistencies between what Trae Worrie told Dr. Gojer, that God instructed him to kill his grandparents, and what he told her, that four girls from the United States government told him to do it, should be clinically significant because within a couple of months delusions should not change so quickly. Dr. Green said this was a unique case because Trae Worrie was going back and forth between being distressed by an abstract thing, the incubator, and the actual physical thing of the government putting a screw in his ear.

33Dr. Green said Trae Worrie referred to and described omniscience as a power that makes the owner the smartest person in the world and said he had given this power to his girlfriend, Shayland. Dr. Green said it appeared that Trae Worrie had incorporated a word from the WRAT test into his delusions. It was clinically significant that this was a new delusion and delusions typically develop over time.

34Dr. Green said Trae Worrie described how he had consumed a quarter of a mickey of Smirnoff and a beer. He took time to select a knife – he chose the silver knife. He described how he asked God what to do and he said “if you are going to do it be solid in your actions”. He said he hesitated and debated if he should do it. Eventually, it was time to go and he stated “so I managed to kill my grandfather, but my grandmother made it through the front door”.

35Dr. Green said that Trae Worrie was not emotional. He was organized and he was not disoriented. She said while some may say this was part of schizophrenia, she opined Trae Worrie’s affect was shallow and more consistent with a personality disorder. Dr. Green said that in her interview with Trae Worrie, he never mentioned Satan.

36Dr. Green said Trae Worrie’s direction to her to “please put on the file that Obama, Stephen Harper, Queen Elizabeth, Jesus, Buddha, Lucifer, all tell me I shall be acquitted” is not common but she has been given such direction by others in the past.

37Dr. Green said that the test results suggest that Trae Worrie does not have a thought disorder. She said that based on her observations and the material she reviewed, she would not describe Trae Worrie as floridly psychotic.

Dr. Gojer

38Mr. Worrie’s statement to Dr. Gojer is not a protected statement, however, I summarize Dr. Gojer’s statement to provide an account of what all the experts told the jury. Dr. Gojer was qualified as an expert in forensic psychiatry with the ability to give evidence on the state of mind and on issues relating to criminal responsibility as it relates to the evidence in the case. He was retained by the defence to assess Mr. Worrie on the issue of criminal responsibility.

39Dr. Gojer said shortly after Mr. Worrie was charged in April 2015, he was retained by the defence to prepare a report and assessment of Mr. Worrie. After the trial started, he prepared another assessment for Mr. Worrie. He interviewed Mr. Worrie at Maplehurst for the assessment. He said he did this on two occasions for about four hours in total. He said he also interviewed Mr. Worrie’s mother, father and sister. He also reviewed four volumes of materials from Waypoint Hospital and materials from Trillium Hospital. He also reviewed Mr. Worrie’s post on Reddit.

40Dr. Gojer said when he first met him, Mr. Worrie told him he was telepathically gifted and that God had commanded him to kill his grandfather. He added that he heard God’s voice talking to him and he was told not only to kill his grandfather, but to kill his grandmother and his parents and that it was their time to go. But he did not feel bad, he just felt relief.

41Dr. Gojer further added that Mr. Worrie believed that people were poisoning him, that he was suspicious of his parents, and his father in particular, and he said he arrived at those conclusions by the way his father looked at him. He also said that his father was talking about him behind his back about his mental health. Then he went on to say that he was a telepath. He also said that since October of 2014, God had made this experience of being a telepath happen. Then he added that he felt blessed that he can communicate with humans and animals and sentences do not have to be said, they just go. Then he talked about being part of an incubator through which he said he was able to speak to Prime Minister Harper and Obama and he would hear clicking sounds or clicking in his body. He told Dr. Gojer he could not tell Dr. Gojer where the incubator was and he was told that he had to kill to get out of the incubator. He also added that he could not tell who was controlling the incubator, but he believed that other people knew about it. Then he added that in his sleep, his dreams were controlled by the incubator and that he would speak to Prime Minister Harper and president Obama telepathically. He was also told that in Canada, one cannot have a telepath. Therefore, he had to move to Russia or the United States. He was also told that he had to have a prosthetic arm or leg. He also said that he had to kill a friend by the name of Tajinder in order to be released from this incubator. He said that Stephen Harper knew this person Tajinder. He added that his parents and sister all had to be killed.

42Dr. Gojer said he strongly suspected that Mr. Worrie was experiencing auditory hallucinations and was floridly psychotic. Dr. Gojer said he recommended that Mr. Worrie be sent to the Centre for Addiction and Mental Health for in-patient treatment pursuant to an assessment order under Form 48. There were no beds available so he was sent to Waypoint.

43After his recent assessment of Mr. Worrie, Dr. Gojer said Mr. Worrie’s perceptual abnormalities and his behaviour essentially remain the same. Mr. Worrie was experiencing auditory hallucinations, tactile hallucinations and sexual hallucinations.

44Dr. Gojer said Mr. Worrie’s family and friends’ observations of abnormal behavior in the time period leading to the homicide, observations by clinical staff on his admission to hospital in February 2015, and his own observations rule out the possibility that Mr. Worrie was malingering.

45Dr. Gojer said Mr. Worrie’s grandparents were loving grandparents. He had no prior history of violence. His behaviour indicates mental illness. He was no longer taking cannabis in the weeks leading up to the incident, so cannabis had little impact on how ill he was. Dr. Gojer said Mr. Worrie was not angry at his grandparents – it is his bizarre belief system that makes him disconnected from reality.

46Dr. Gojer said Mr. Worrie said he began to hear voices in September 2014. At the Ab-Soul concert in October 2014, he said he heard voices telling him he had two weeks to make a CD. He said there was an instance where Mr. Worrie told him that he met a cab driver who was Jesus. He could hear words coming out of the cab driver and through telepathy, thoughts and ideas were planted in his mind. He said Mr. Worrie was hallucinating, exhibited thought disorder, and required medication.

47Dr. Gojer said Mr. Worrie’s comments about Jesus and Lucifer are all real to him. He said notes from clinicians at Trillium hospital indicate that Mr. Worrie was experiencing hallucinations when he was at the hospital. He said that Mr. Worrie had been exhibiting symptoms from the end of February to September 2014. It is a chronic illness. It does not go away. It is inconceivable that at the time of the stabbings, his mental illness would have gone away.

48Dr. Gojer said Mr. Worrie suffers from a psychotic illness – schizophrenia. He suffered from this mental illness at the time he committed the offences. He had an understanding that killing a human being was not in keeping with the law. He believed that he was following God’s instructions and was unaware that what he was doing was morally wrong according to the standards of society. Based on his opinion, he would conclude that Mr. Worrie is not criminally responsible for the offence.

POSITION OF THE PARTIES

49Mr. Worrie submits that his protected statements are subject to the confessions rule. The statements contain inculpatory portions – Mr. Worrie’s admission that he killed Mr. Campbell and intended to kill Mrs. Campbell – and exculpatory statements, where he indicates that he was instructed by an incubator to commit the offence. On that basis, he believed that his actions were not morally wrong. This is the crux of his not guilty by reason of mental disorder defence.

50Mr. Worrie submits that since the Crown intends to use the inculpatory portion of his statement for the truth of its contents to prove the actus reus of the offences against him, he should also be able to rely on the exculpatory portion of his statement for the truth of its contents to discharge his onus to prove, on a balance of probabilities, that at the time of the offence, he was suffering from a mental disorder, such that he was incapable of knowing that his actions were wrong. Mr. Worrie also submits that his admission that he killed Mr. Campbell is admissible for this substantive use under the hearsay exception admission against interest.

51The Crown submits that it is not seeking to rely on the protected statements for any purpose. The Crown is not seeking to introduce them. The Crown examined Dr. Komer and Dr. Green in an effort to demonstrate to the jury that there were inconsistencies in Mr. Worrie’s statement to Drs. Komer and Green. This was to assist the jury in assessing the basis upon which the Drs. Komer and Green rendered their opinions.

52The Crown submits that the jury can only look to evidence from Dr. Komer and Dr. Green, other than Mr. Worrie’s statement, to assess the basis upon which their opinion was based. According to the Crown, the jury can rely on Mr. Worrie’s statement of a preposterous nature, e.g. that he was instructed to kill by an incubator to conclude that he suffers from a mental illness. However, they cannot consider Mr. Worrie’s statements, for the truth of their contents, to determine whether he was suffering from a mental disorder at the time of the offences to the extent that he is not criminally responsible for the offences by reason of mental disorder.

DISCUSSION

53Mr. Worrie’s defence is available by statute. Section 672.34 of the Criminal Code states:

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.

54A person is exempt from criminal responsibility by reason of mental disorder if at the time of the commission of the act or omission two conditions are established: 1) the mental disorder renders the person incapable of appreciating the nature and quality of his actions and 2) the mental disorder renders the person incapable of knowing that the act or omission is wrong: Criminal Code, s. 16(1).

55Every person is presumed not to suffer from a mental disability: Criminal Code, s. 16(2). The person who asserts that the accused was suffering from a mental disorder at the time of the commission of the offence has the burden of proof. Proof is on a balance of probabilities: Criminal Code, ss. 16 (2) and (3).

56The Crown must first prove beyond a reasonable doubt that the accused committed the offence. Once the trier of fact is satisfied that this burden of proof has been discharged, the onus shifts to the person asserting that the accused was suffering from a mental disorder at the time of the offence to discharge that onus on a balance of probabilities: R. v. Swain, [1991] 1 S.C.R. 933.

57Mr. Worrie put the Crown to the proof of the offences of second degree murder and attempted murder. At the conclusion of the Crown’s case, the defence informed the court that it concedes that the Crown has proven the case against Mr. Worrie beyond a reasonable doubt. The issue for the jury to decide is whether Mr. Worrie is not guilty of these offences by reason of mental disorder.

58Mr. Worrie also concedes that despite his mental disorder, he could appreciate the nature and quality of his act. Therefore, the only issue for the jury to determine is whether his mental disorder rendered him incapable of knowing that what he was doing was wrong.

59A protected statement is defined in section 672.21 of the Criminal Code and has these components: 1) it is a statement provided by the accused, 2) in the course of a court-ordered assessment and 3) made to the recipient designated in the order. Mr. Worrie’s statement to Dr. Komer and Dr. Green were made pursuant to a court-ordered assessment and the recipients were those designated in the order. Therefore, these statements are protected statements. Mr. Worrie’s statement to Dr. Gojer was not made pursuant to a court order and were made to an expert Mr. Worrie retained. Therefore, the statements to Dr. Gojer are not protected statements and fall outside the protections offered by section 672.21.

60Section 672.21 (2) renders inadmissible, without an accused’s consent, protected statements and references to them in circumstances where production of such statements will be otherwise compelled. Pursuant to section 672.21(3), this is subject to these enumerated exceptions:

• In fitness hearings;
• When making disposition or placement decisions in regards to the accused;
• In assessing whether to refer for review or revocation that an accused is a high-risk offender;
• In determining whether an accused was mentally disturbed when she killed her newly born child;
• In determining whether the accused is not guilty by reason of mental disorder where the prosecution or the accused has put his mental state in issue;
• To challenge an accused’s credibility in any proceeding where she has provided evidence inconsistent with a previous protected statement; and
• To establish that the accused has committed perjury in regards to any statement made in a proceeding.

61Nothing in section 672.21 is inconsistent with the confessions rule. The confession rule is enshrined in section 7 of the Charter and section 672.21 should not be interpreted in a manner contrary to section 7: R. v. G. (B), [1999] 2 S.C.R. 475. In effect, the provisions of section 672.21 should not be interpreted in a manner contrary to the Charter and unless expressly mandated by statute, such interpretation should not be contrary to the rules of evidence.

62When an accused leads an otherwise protected statement, the accused waives their protection under section 672.21: R. v. Edwards (2004), 72 OR (3d) 135 (Ont. C.A.), at paras. 54-56. Thus, the confessions rule applies whether the accused waives or does not waive the protections of section 672.21.

63Evidence of a statement made to a recipient by a declarant, who is not a witness in the proceedings, may or may not be hearsay. It is hearsay and presumptively inadmissible when the purpose of the evidence is to establish the truth of the contents of the statement. It is not hearsay, hence not inadmissible under the rule, where the purpose of the evidence is not to establish the truth of the contents of the statement, but rather to prove that the statement was made. Hearsay also includes an out of court statement made by a witness who testifies in court, if the statement is offered to prove the truth of its contents.

64An out of court statement by an accused is hearsay and not admissible to prove the truth of its contents. This applies to both inculpatory and exculpatory statements by an accused. Confessions are a general exception to the hearsay rule. An admission against interest is an exception to the hearsay rule. The rational for this is that when an accused makes an admission against his or her interest, it is likely to be true: R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 35.

65When an accused testifies, his or her exculpatory statements are inadmissible. The rational for the exclusion of exculpatory statements is that they are self-serving and have no probative value. The exculpatory statements are also inadmissible when the accused does not testify. The rational for this rule is that an accused person should not be able to put her unsworn and untested defence before the trier of fact without taking an oath or being subject to cross-examination: Rojas, at para. 36.

66An exception to this general rule is where the prosecution seeks to tender an out of court statement of an accused which has inculpatory and exculpatory portions. Fairness dictates that in such circumstances, the statement in its entirety is admissible. Under these circumstances, exculpatory statements are admissible in favor of the accused: Rojas, at para. 37.

Implications of Mr. Worrie’s Consent

67Section 672.11 protects Mr. Worrie from the indiscriminate use of his protected statements, without his consent, subject to certain exceptions, one of which is for use in a proceeding to determine whether a the defence of not criminally responsible by guilty by reason of mental disorder is available to Mr. Worrie.

68When an accused leads an otherwise protected statement, the accused waives their protection under section 672.21. Mr. Worrie has consented to the use of his protected statement in the trial to determine whether he is not criminally responsible by reason of mental disorder. By consenting, he has waived the statutory protection: Edwards, at paras. 54-56. The intended use of the statement is permitted by section 672.21(3)(e). Mr. Worrie’s statement is admissible for both reasons. There are, however, limits on how the trier of fact can use these statements.

69The confessions rule applies to Mr. Worrie’s protected statement whether or not he consents to the admission of his statement in this trial. Nothing in that section mandates the interpretation of the section in a manner inconsistent with the general rules of evidence: R. v. G. (B).

70Mr. Worrie will not testify. His out of court statement is offered for the truth of its contents within the context of the not criminally responsible defence. Specifically, that he killed his grandfather and attempted to kill his grandmother, and that at the time he committed these acts, he was suffering from a mental disorder such that he was incapable of knowing that his actions were wrong.

71Mr. Worrie’s statements are exculpatory on the NCR issue and not admissible unless the Crown seeks to admit his out of court statements into evidence: Rojas, at para. 36. The Crown does not wish to admit Mr. Worrie’s out of court statements into evidence. I am satisfied that the examinations of Drs. Komer and Green were only intended to persuade the trier of fact that there were inconsistencies in Mr. Worrie’s statement to them and thus the jury should accord little or no weight to Dr. Komer’s opinion. Therefore, Mr. Worrie’s exculpatory out of court statements are not admissible for the truth of their contents and are subject to the limitations outlined below.

1. Use of Expert Testimony

72An accused who is asserting a not criminally responsible defence cannot lead evidence of what he told another person about his delusions or the symptoms of his or her illness to prove the truth of what he told the witness. For example, an accused cannot lead evidence from a forensic psychiatrist to prove that what he told the psychiatrist about his delusions or his mental illness is true. This evidence is hearsay: R. v. Abby, [1982] 2 S.C.R. 24, at pp. 411-2; R. v. W.G.F., [2003] O.J. 1145, at para. 432.

2. To Assess Expert Opinion

73If this hearsay evidence forms part or all of the expert’s opinion, it can be introduced not for the truth of its contents, but for the limited purpose of showing the basis for the expert’s opinion. One of the ways a trier of fact can assess an expert’s opinion to determine what weight to give it, is by examining the information upon which such opinion is based. Where hearsay evidence forms the basis of the expert’s opinion, the trier of fact can assess the hearsay evidence for this limited purpose. Hearsay and non-hearsay evidence that forms the basis for the expert opinion can be assessed by the trier of fact for this purpose. The weight placed on an expert’s opinion is directly related to the quality of the hearsay evidence upon which it is based: R. v. Lavallee, [1990] 1 S.C.R. 852; W.G.F. at para. 432.

74Mr. Worrie’s statements to Dr. Komer, Dr. Green, and Dr. Gojer are not admissible to prove the truth of their contents. These out of court statements are hearsay. These statements form part of the information the experts relied on to form these opinions. Therefore, the jury may consider them for the limited purpose of assessing the basis of the expert opinion and the weight to give to that opinion.

3. As Original Evidence of Mental State

75Preposterous statements made by an accused are admissible as original evidence that the accused suffers from a mental disorder: R. v. Kirkby (1985), 21 C.C.C. (3d) 31 (Ont. C.A.), at pp. 54-6. Mr. Worrie’s statements to the experts that he was instructed by an incubator and God to kill his grandparents are statements of preposterous nature and can be considered by the jury as original evidence that he suffers from delusions and hallucinations.

CONCLUSION

76In circumstances where the Crown does not seek to introduce a protected statement as an admission, these statements cannot be tendered for the truth of their contents: W.G.F., at paras. 443-443; R. v. Palma (2000), 149 C.C.C (3d) 338 (Ont. S.C.); and R. v. Rogers, 2017 BCSC 1410, at para. 94.

77In this case, the Crown does not seek to introduce the protected statements into evidence as an admission. Therefore, the protected statements to Dr. Komer and Dr. Green cannot be tendered for the truth of their contents at this trial. For reasons previously articulated, this conclusion also extends to the statement to Dr. Gojer.

Barnes J.

Released: December 21, 2018 CORRECTED: July 30, 2019

COURT FILE NO.: CR-16-1893 DATE: 20181221 CORRECTING DATE: 2018 07 30 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - TRAE WORRIE CORRECTED DECISION TO THE REASONS FOR RULING USE OF PROTECTED STATEMENTS RELEASED DECEMBER 21, 2018 Barnes J. Released: December 21, 2018 CORRECTED: July 30, 2019