Court File and Parties

COURT FILE NO.: CR-17-07341 DATE: 20190228 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MARIO RODRIGUES Defendant

Counsel: Ms. Kim, for the Crown Mr. Brodsky, for the Defendant

HEARD: January 7-9, 14-18, 2019

REASONS FOR DECISION

EDWARDS J. :

Overview

[1] In the early morning hours of April 18, 2016 Mr. Rodrigues, having broken into the residence of Juliet Dela Cruz (“Cruz”), then assaulted her and abducted their daughter J.C., thereby triggering an Amber Alert. Mr. Rodrigues placed his daughter in the car seat of his van and drove from Aurora to Pembroke. He was observed by various police officers driving at high rates of speed. Ultimately, he lost control of his vehicle and came to rest in an upside down position. Both Mr. Rodrigues and his daughter were injured, but they have both thankfully - from a physical perspective, on all accounts made a good recovery.

[2] As a result of his actions Mr. Rodrigues was charged with two counts of assault, break and enter, abduction of his daughter and dangerous driving causing bodily harm.

[3] While Mr. Rodrigues does not admit that the Crown has made out the actus reus for the offences before the court, there is little doubt on the basis of the evidence adduced and the Agreed Statements of Fact, that the Crown has proven beyond a reasonable doubt the actus reus for the charges that Mr. Rodrigues is facing. The only real issue that this court is called upon to decide is whether or not at the time that the offences were committed, Mr. Rodrigues has met his onus of proving on a balance of probabilities that he was not criminally responsible (“NCR”).

The Facts

[4] J.C. was born on April 28, 2011. Mr. Rodrigues is the father of J.C. Ms. Cruz is the mother of J.C. Mr. Rodrigues and Ms. Cruz had been in a relationship but at no time did they ever live together on a permanent basis, and there is no evidence that they in fact were in a common law relationship. Since J.C.’s birth, it is an agreed fact that there was no family court order or written agreement with regard to the custody of J.C. It is beyond dispute that J.C.’s mother Ms. Cruz had, for all intents and purposes the defacto custody of J.C., living at her parents’ residence in Aurora.

[5] Mr. Rodrigues would periodically turn up at Ms. Cruz’s residence, sometimes unannounced and sometimes by pre-arranged appointment, and would see his daughter in the company of Ms. Cruz.

[6] In the week prior to the abduction of J.C., Mr. Rodrigues was at the Cruz residence seeing his daughter on a frequent basis. It is quite evident from the evidence of Ms. Cruz, that the frequency of Mr. Rodrigues’ visits and the length of those visits during the week prior to the abduction caused her considerable concern. Nonetheless, on at least one occasion Mr. Rodrigues stayed at the Cruz residence overnight, sleeping on a couch. Mr. Rodrigues had left the Cruz residence on April 17, 2018, and the evidence of Ms. Cruz was that she believed that he had left to return to his home. As events unfolded, Ms. Cruz was awoken in the early morning hours (approximately 4:00 a.m.) to the noise of some glass breaking on the first floor of the residence. She went downstairs and observed that the front window had been broken. She opened the door and was confronted by Mr. Rodrigues, who punched her in the face.

[7] Mr. Rodrigues then went upstairs to J.C.’s bedroom on the second floor. A further altercation on the stairs took place between Ms. Cruz and Mr. Rodrigues. Ultimately, Mr. Rodrigues took J.C. and put her in his van in her car seat.

[8] Quite understandably, and in a considerable state of emotion, Ms. Cruz called 911. During the course of that 911 call, Ms. Cruz admitted that she told the 911 operator that Mr. Rodrigues was “mentally ill”. Ms. Cruz is not a medical practitioner. Her background is in accounting.

[9] The police attended at Ms. Cruz’s residence and eventually an Amber Alert was issued. Mr. Rodrigues had left Aurora, intending to take J.C. to the Ottawa area.

[10] As is evident from Exhibit 10, which is an Agreed Statement of Fact, Mr. Rodrigues was observed by various members of the Ontario Provincial Police (“the OPP”) driving at high rates of speed between Haliburton, Bancroft, and ultimately Pembroke where his vehicle was involved in a single vehicle accident. Mr. Rodrigues was travelling for the most part in an 80 kilometre zone, and was observed on a number of occasions to be travelling at 150 kilometres per hour and 178 kilometres per hour. His rate of speed was such that the police ultimately decided not to pursue him at close range.

[11] After his vehicle had come to rest in an upside down position, the police were on site and he was taken in a police cruiser with a paramedic to the local hospital in Pembroke, ultimately being transferred to the Ottawa Hospital. His daughter J.C. suffered compression fractures of the T2, T3, T4 and T5 vertebrae.

[12] Mr. Rodrigues suffered a comminuted fracture of the T8 vertebral body, as well as a fracture of his upper sternum. He was arrested at the scene of the accident, and after treatment at the local hospital in Pembroke and the Ottawa Hospital he was discharged to a correctional facility.

The Issue

[13] As I have already indicated, the only real issue that this court was called upon to decide is the question of whether or not Mr. Rodrigues was NCR. In that regard, Mr. Brodsky on behalf of Mr. Rodrigues called Dr. Gojer, a forensic psychiatrist who provided the court with his opinion that Mr. Rodrigues suffered from a bipolar mood disorder, with a manic episode and schizoaffective disorder – manic phase. Both of these conditions are major mental illnesses which would meet the definition of mental disorder for the purposes of a s. 16(1) defence under the Criminal Code.

[14] While Dr. Gojer in his report concludes that Mr. Rodrigues would have been able to appreciate the physical nature of the consequences of his actions, ultimately it was his conclusion that Mr. Rodrigues was in a severe delusional and manic state at the time of the alleged offences, and that his mood and thought disorder were of such severity that they would have prevented him from weighing the pros and cons of his actions.

[15] Dr. Gojer was of the view that Mr. Rodrigues would not have been able to evaluate his actions and their impact on others, and that he would not have been able to exercise a rational choice. Dr. Gojer concluded that Mr. Rodrigues’ thinking and capacity for making moral decisions were affected by his mania and delusional thinking. While Dr. Gojer was of the view that Mr. Rodrigues may have known that what he did was legally wrong, on a balance of probabilities Dr. Gojer was of the view that Mr. Rodrigues believed that what he did was morally right, and as such he was not criminally responsible for his actions on account of a mental disorder.

[16] On October 24, 2016, Justice H.I. Chisvin ordered an assessment on Form 48 of Mr. Rodrigues. At the time that the order was made Mr. Rodrigues was detained at the Central East Correctional Centre, and was thereafter admitted to the Forensic Assessment Unit at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) on October 24, 2016. Dr. Wong undertook an assessment of Mr. Rodrigues and issued his report to the Ontario Court of Justice on December 23, 2016. Dr. Wong came to the conclusion that from a psychiatric perspective, at the time of the offences Mr. Rodrigues was capable of appreciating the nature and quality of his actions and he was able to understand that they were both morally and legally wrong. As such, on a balance of probabilities Dr. Wong was of the view that a defence of not criminally responsible on account of a mental disorder would not be available to Mr. Rodrigues.

[17] Dr. Wong was called as a witness in reply by the Crown and his opinion, as reflected in his report of December 23, 2016, was unchanged. Dr. Wong was confronted during the course of his cross-examination with additional information that was available to Dr. Gojer, which was not available to him at the time of his assessment. In cross-examination, when confronted with the additional information, Dr. Wong did not change the opinion which he had formulated at the end of 2016.

[18] The evidence at trial consisted of the viva voce evidence of Ms. Cruz, as well as the Agreed Statements of Fact. The court also had the competing opinions of Dr. Gojer and Dr. Wong on the issue of NCR. The court also had the medical records of Mr. Rodrigues which were filed on consent for the truth of their contents.

Position of the Defence Regarding the Actus Reus of the Offences

[19] As it relates to the actus reus of the various offences before the court, Mr. Rodrigues took no position.

Position of the Crown Regarding the Actus Reus of the Offences

[20] As it relates to the actus reus of the offence, Crown counsel suggested that there is absolutely no evidence to the contrary that would suggest that the actus reus of all of the offences was made out from the Agreed Statements of Fact and the evidence of Ms. Cruz.

Analysis as it Relates to the Actus Reus

[21] The evidence of Ms. Cruz establishes beyond doubt that she was assaulted. The photographs which are entered into evidence clearly establish the nature of the assault.

[22] As it relates to the abduction charge, there is again little doubt from the evidence of Ms. Cruz that she had the defacto custody of J.C., and she did not give permission to Mr. Rodrigues on April 18, 2016 to the removal of J.C. from the Cruz residence. I am satisfied that the Crown has made out the actus reus of this offence.

[23] As it relates to the dangerous driving causing bodily harm, the evidence establishes that Mr. Rodrigues was travelling at what can only be described as incredibly high rates of speed, speeds by any stretch of the imagination that one can only describe as incredibly dangerous. The observations of the OPP officers as well as various eye-witnesses, as reflected in the Agreed Statement of Fact, Exhibit 10, more than make out the actus reus of dangerous driving. The fact that J.C. suffered various orthopedic injuries more than establishes that she suffered bodily harm as a result of Mr. Rodrigues’ dangerous driving.

[24] In sum, I am satisfied that the Crown has made out the actus reus for all of the charges before the court. The only issue that is left for this court to decide is whether or not a defence of not criminally responsible is available to Mr. Rodrigues.

Position of the Defence Regarding NCR

[25] Mr. Brodsky, in argument, suggests that this court should reject out of hand the evidence of Dr. Wong, largely because it is suggested that he was not an unbiased witness. In support of that argument, Mr. Brodsky suggests that Dr. Wong demonstrated his bias when confronted with the additional information that he had been unaware of during the preparation of his report in late 2016.

[26] Mr. Brodsky argues that Dr. Gojer completed a far more complete assessment of Mr. Rodrigues, having had the opportunity to review not only collateral information from family members that was not available to Dr. Wong, but also additional medical documentation and transcripts from the preliminary hearing which were not available to Dr. Wong.

[27] Mr. Brodsky, amongst the various records that were reviewed by Dr. Gojer, notes that Dr. Wong did not review the police records or any of the statements made by Mr. Rodrigues or others to the investigating police officers and the special investigations unit.

[28] Mr. Brodsky suggests that Dr. Wong failed in his role as an expert, as evidenced by reason of the fact that he did not make any attempt to contact the doctor at the local jail where Mr. Rodrigues had been incarcerated and placed on different types of medication.

[29] Mr. Brodsky comments negatively about how Dr. Wong conducted his assessment, particularly the fact that he did not order any psychological testing as Dr. Gojer had done at the time of his assessment.

[30] Fundamentally, Mr. Brodsky argues that Dr. Wong was rigid and inflexible in his role as an expert, who stuck to his original opinion despite the fact that the facts that he relied upon were wrong. As such, Mr. Brodsky argues that I should give no weight to Dr. Wong’s opinion, and with the evidence of Dr. Gojer I can ultimately conclude that Mr. Rodrigues was suffering from a mental disorder that deprived him of the ability to understand the difference between right and wrong, and conclude that Mr. Rodrigues was not criminally responsible at the time of the various offences before the court.

Position of the Crown

[31] While agreeing that Mr. Rodrigues does have a mental disorder, Ms. Kim for the Crown argues that whatever that mental disorder may be (given the difference of opinion amongst the experts), that it did not deprive him of the ability to know that what he did on April 18, 2016 was both legally and morally wrong.

[32] In determining whether or not Mr. Rodrigues understood that what he did was both legally and morally wrong, Ms. Kim argues that the important evidence that this court should consider is the medical evidence just before the incident; the medical evidence at the time of the incident; and the medical evidence just after the incident.

[33] As it relates to some of the information that was relied upon by Dr. Gojer, Ms. Kim argues that this court should be cautious about much of that evidence as it is hearsay evidence. In that regard, Ms. Kim points to the collateral information that was relied upon by Dr. Gojer that he received from various members of Mr. Rodrigues’ family. None of those witnesses were called to give corroborative evidence before this court, and as such it is hearsay evidence that this court should accord little weight to.

[34] As it relates to the medical evidence immediately before the incident, Ms. Kim points to the evidence of a psychiatrist that Mr. Rodrigues had seen in 2016. In that regard, he was being treated by a Dr. Liu who saw him on two or three occasions leading up to the time of the incident. At no time was Mr. Rodrigues observed by Dr. Liu as presenting with any signs of a manic disorder, and in fact she describes his mood as stable.

[35] As it relates to the evidence of Ms. Cruz concerning Mr. Rodrigues’ mental state, Ms. Kim notes that while Mr. Rodrigues did not appear to be himself, she did not have any concerns in terms of how he interacted with J.C. Ms. Kim notes that while she was scared of Mr. Rodrigues, at no time did that concern reach the level that she actually called for the intervention of the police. In fact, in the time period immediately prior to the incident, Ms. Cruz had allowed Mr. Rodrigues to sleep overnight at her residence and had made dinner for him. There was nothing in Ms. Cruz’s evidence that would suggest that Mr. Rodrigues was in a manic state, a state that according to Dr. Gojer would have been obvious to anyone.

[36] As it relates to the observations immediately after the accident, Ms. Kim points to the evidence of Dr. Harper who was a psychiatrist at the Ottawa Hospital. Dr. Harper did not diagnose any major mental illness, nor did he make any observations about signs of mania. If any of the aforesaid had been evident, Ms. Kim argues that Dr. Harper would have detained Mr. Rodrigues on a Form 1.

[37] As it relates to Ms. Cruz’s 911 call at the time of the incident when she advised the 911 operator that Mr. Rodrigues was “mentally ill”, Ms. Kim asked this court to consider that statement in the context that Ms. Cruz is not a doctor, and was quite clearly emotional at the time that she made the 911 call given that her daughter had just been abducted.

The Experts’ Reports and Reliance on Hearsay Evidence

[38] In the case of both Dr. Wong and Dr. Gojer, they - out of necessity, relied in part on hearsay evidence obtained from various sources, which included in the case of Dr. Wong medical records prepared at the time of and shortly after the accident. Dr. Gojer had access to the same medical records, and also had access to various statements made by Mr. Rodrigues to the police. Dr. Gojer also relied on the transcripts from the preliminary hearing, as well as interviews with various family members of Mr. Rodrigues.

[39] At the completion of the evidence, I raised with counsel a concern that I had with respect to what weight I could give to either expert given their reliance on hearsay evidence, none of which had been tendered to the court and thus not exposed to the rigors of cross-examination. Counsel were given the evening to consider their respective positions. When the court resumed in the morning, counsel had agreed that all of the medical records reviewed by both experts would be made an exhibit at trial, and that they were being tendered for the truth of their contents. I was encouraged to review those records, filed as Exhibit 18 on a memory stick. The medical records on Exhibit 18 were all printed and have been reviewed by me in their entirety.

[40] While the filing of Exhibit 18 did address, at least in part my concern about the reliance on hearsay evidence, it did not address all of those concerns. Both experts relied on additional evidence which was never tendered into evidence at trial. By way of example, Dr. Gojer obtained collateral information from various Rodrigues family members. He reviewed various police statements, including video statements given by Mr. Rodrigues shortly after his arrest. None of the Rodrigues’ family members testified in court. They were available to testify. Both parents were in court on the last day of the trial.

[41] The issue then is what weight can this court place on the experts’ evidence, to the extent that either one has relied on hearsay evidence. This issue was addressed at some length by Watt J. (as he then was) in R. v. Palma, [2001] O.J. No. 3283. After a review of R. v. Abbey, [1982] 2 S.C.R. 24, Watt J. concluded at para. 74 that an expert’s opinion based on hearsay evidence not otherwise proven, is a factor for the trial judge to consider in assessing the weight to assign to the opinion, but is not determinative of the admissibility of the opinion. As to the weight to be given to an expert’s opinion based on unproven hearsay evidence, Watt J. suggested in Palma it requires a “qualitative assessment of the evidence, an examination of its probative or persuasive force”.

[42] Mr. Brodsky asks this court to accept Dr. Gojer’s evidence and to reject Dr. Wong’s evidence, largely because Dr. Wong did not consider the bulk of the evidence relied upon by Dr. Gojer. Much of that evidence was, however, hearsay never proven in this court, and never subject to cross-examination. I fail to see how this court can prefer Dr. Gojer’s evidence over that of Dr. Wong, where a conscious decision must have been made not to call the underlying evidence that Dr. Gojer relied upon. By way of example, Mr. Brodsky was critical of Dr. Wong for not reaching out to the Rodrigues family members to obtain the collateral information that Dr. Gojer was able to obtain. Those family members were never called as witnesses, despite the fact they were readily available as evidenced by their presence in court on the last day of the trial. The failure to call these witnesses detracts from the weight that this court can ascribe to Dr. Gojer’s evidence.

[43] From my review of the law, the weight to be given to either expert requires an analysis of the opinion in relation to all of the evidence available to that expert, which was both proven in the court and also evidence not proven, and as such hearsay evidence.

[44] As my analysis in paras. 44 to 64 will demonstrate, I have accepted the evidence of Dr. Wong over the evidence of Dr. Gojer. While both doctors relied on hearsay evidence, the medical evidence relied upon by Dr. Wong immediately before and after the incident renders Dr. Wong’s opinion more plausible than the opinion of Dr. Gojer.

The Medical Evidence Prior to April 17, 2016; Around the Time of the Incident and Immediately After the Incident

[45] Dr. Wong, in coming to the conclusion that he did, stressed what he described as the “bookend evidence” which he considered paramount in understanding Mr. Rodrigues’ mental state at the time he committed the offences. Specifically, the evidence of Mr. Rodrigues’ mental state as reflected in the records of his treating psychiatrist in the period leading up to the offences; his mental state at the time of the offences; and his mental state as observed by various medical and non-medical personnel immediately after the offence.

[46] Leading up to the period of time when Mr. Rodrigues was actively treated by a psychiatrist, Mr. Rodrigues was seen at the Scarborough Health Network Mental Health Services Unit on December 31, 2015. At that time he had been brought to the emergency room by police, albeit he had not been apprehended under the Mental Health Act. In a consultation note prepared by a Tim Worth who is a registered nurse, it would appear that Mr. Rodrigues had called 911 advising that he was “depressed and suicidal”. The consultation note prepared by Mr. Worth reflects a history obtained from Mr. Rodrigues, where his primary complaint was recorded as follows:

…the mother of his daughter did not want to maintain a relationship and the patient feels he does not have sufficient contact with his daughter, seeing her on weekends. He said that he has felt sad for six to seven months, worsened during the holidays. He was unable to explain what led to his calling 911 on that occasion. He reported crying daily, poor sleep for five to six months and anxiety regarding his finances. He said that he drank six to seven bottles of beer prior to coming to the E.R. He said ‘Yes I am manic’ when asked, but was unable to offer examples of overt manic behavior…

[47] Mr. Rodrigues had been seen by a psychiatrist prior to April 18, 2016 when he abducted his daughter. Dr. Regina Liu is a psychiatrist in the Mental Health Unit at the Scarborough Health Network, where she saw Mr. Rodrigues as an outpatient. In a consultative note to Mr. Rodrigues’ family doctor Dr. Mehmi dated February 17, 2016, Dr. Liu took a complete history from Mr. Rodrigues and conducted a mental status examination. Dr. Liu offered the following impression to Dr. Mehmi:

This is a 35 year old man who presents with a primarily substance use disorder. While he describes having symptoms of anxiety and depression, he actually presents in the interview as somebody who does have more attention deficit issues. He presented as a somewhat unreliable historian at times, being inconsistent and contradicting himself…

[48] Dr. Liu ultimately concluded that Mr. Rodrigues did not meet the criteria for an “Access 1 Mood Disorder or Anxiety Disorder”. Dr. Liu suggested that Mr. Rodrigues undertake a trial of Wellbutrin to see if this could improve his concentration and attention. Dr. Liu gave Mr. Rodrigues a prescription for Wellbutrin XL, 150 milligrams, and cautioned him that he should abstain from alcohol as a combination of Wellbutrin and alcohol could decrease the seizure threshold and put him at risk.

[49] Dr. Liu saw Mr. Rodrigues on April 11, 2016. In her consultation note of that date she took a history from Mr. Rodrigues as follows:

Reports feeling better since ENDRJ started. Suggests has been better able to focus and complete tasks. Has not used cocaine since before our last visit; states drank once since our last visit and reduced use of cannabis, but relapsed “big time last week”; missed appointment with Rob as a result, so asked him to rebook himself.

[50] Dr. Liu, in her consultation note of April 11, 2016, further noted that Mr. Rodrigues “states mood and anxiety stable”. She completed her consultation note with an indication that from her assessment of Mr. Rodrigues, there was no indication of hallucinations and “no psychosis”. She further noted that Mr. Rodrigues’ insight and judgment were good. As far as further treatment was concerned, Dr. Liu noted that she was going to increase the dosage of Wellbutrin to 300 milligrams.

[51] It is particularly noteworthy that one week prior to Mr. Rodrigues’ abduction of his daughter that Dr. Liu, a treating psychiatrist, made no observations with respect to psychosis, and in fact suggested that Mr. Rodrigues’ insight and judgment were good.

[52] After the incident Mr. Rodrigues was taken by the paramedics to a hospital in Pembroke, and ultimately to the Ottawa Hospital where he was seen by a Dr. Harper who authored a Psychiatry Consultation dated April 21, 2016. Under the subheading Impression/Risk Assessment, Dr. Harper made the following observations:

…He (Mr. Rodrigues) denies suicidal and homicidal ideation and denies that his increased use of Wellbutrin was an attempt at self-harm. A safety concern is not evident at this time. On assessment Mr. Rodrigues has a disorganized thought process and a theme of paranoia is evident, possibly to the extent of delusions. His insight into his current situation appears limited. He is somewhat dismissive of the charges against him, feeling that he was justified in his actions…I feel this man deserves a more thorough psychiatric assessment and would support a forensic assessment.

[53] While Dr. Harper had concerns about Mr. Rodrigues’ psychiatric makeup, he nonetheless discharged Mr. Rodrigues from the hospital into the custody of the police, observing that there were no immediate safety concerns elicited as a result of his assessment. It would have been open to Dr. Harper to have committed Mr. Rodrigues against his will under the Mental Health Act, R.S.O. 1990 c. M. 10. The fact that Dr. Harper discharged Mr. Rodrigues, is highly suggestive that Dr. Harper did not believe Mr. Rodrigues required treatment for any mental health issues.

[54] Mr. Rodrigues was seen by Dr. Shawn Vasdev, a psychiatrist, at the request of his family doctor, Dr. Mehmi. The consultation took place on June 12, 2017. Dr. Vasdev took a history from Mr. Rodrigues, as well as obtained further information from his parents who were also in attendance at the appointment. Dr. Vasdev recorded in his consultation note to Dr. Mehmi the details of the abduction, and recorded the following:

His parents note he had been depressed in the months prior to this (the abduction) and was not working regularly, which was a change from his previous level of function. The above episode is highly suggestive of a manic episode in the context of bipolar disorder.

[55] Having conducted a mental status examination and having obtained a complete history from Mr. Rodrigues and his parents, Dr. Vasdev ultimately came to the following conclusion:

Mario presents with a longstanding history of episodes of depression beginning around age 14, which seemed to occur in an episodic nature with relapses. The period in 2016 he describes (noted in HTI), which consisted of him having an irritable/angry mood, decreased need for sleep, racing thoughts and making risky/impulsive decisions does seem in keeping with a manic episode. He has a family history of psychiatric illness/mood disorders on his maternal side of the family, and his brother has schizophrenia which lend further support to the diagnosis. I do not see evidence of schizophrenia, substance use, and no acute safety concerns are noted. He does not have a pervasive pattern of harming others, breaking the law to suggest antisocial personality disorder. Diagnosis bipolar disorder type 1.

[56] The conclusion of Dr. Vasdev is in stark contrast to the conclusion reflected in a report by Dr. Liu dated July 22, 2016. In this report, also addressed to Dr. Mehmi, Dr. Liu noted as follows:

I find that this patient is a very unreliable and inconsistent historian…The patient does not take any responsibility for his past actions. He tells me that the incident that occurred involving the police was as a result of him using Wellbutrin. He denies taking too much of it. However, in the past he has told me that he overdosed on the medication. Later in the interview as he was opening up his backpack, I noticed a large liquor bottle. When I asked him about it he eventually admitted he had been drinking “just a little bit”. Earlier in the interview, he denied using any kind of substance over the last few months.

[57] What is particularly noteworthy in Dr. Liu’s consultative note of July 22, 2016, is the following history taken from Mr. Rodrigues:

The patient did deny any psychotic symptoms in the last few months including hallucinations, paranoia, thought control, broadcasting and ideas of reference. He also tells me that his mood has been stable. He has been sleeping well. His energy is normal. He tells me he is able to read, watch TV and his concentration is intact. His appetite is also intact. He denied any suicidal or homicidal ideation.

[58] The reference to the fact that Mr. Rodrigues denied any psychotic symptoms “in the last few months”, would suggest a time period covering the abduction of his daughter. Having obtained the history that she did, Dr. Liu ultimately did not diagnose any psychiatric condition other than “substance use disorder”.

[59] Dr. Liu last saw Mr. Rodrigues in late 2016. Dr. Liu authored a further consultation note to Dr. Mehmi on December 22, 2016, in which she summarizes the fact that she had seen Mr. Rodrigues on a number of occasions, and the fact that he had some legal difficulties that had ultimately lead to a forensic assessment at Ontario Shores. Dr. Liu noted on December 22, 2016, her opinion as follows:

…The patient primarily suffers from polysubstance use disorder, as well as possible antisocial traits. Certainly I did not strike a strong therapeutic alliance with him, particularly with his untruthful responses with me.

[60] Given these circumstances, Dr. Liu advised Dr. Mehmi that she would no longer be following up with Mr. Rodrigues.

[61] Both Dr. Wong and Dr. Gojer, of necessity, relied to varying extents on the oral history that they both took from Mr. Rodrigues. It goes without saying that Mr. Rodrigues was not obliged to testify at his trial. However, to the extent that either doctor relied on the history given to them by Mr. Rodrigues, that evidence is hearsay evidence. What weight then should this court ascribe to the opinions of either doctor, where those opinions are based - at least in part, on the hearsay evidence of Mr. Rodrigues.

[62] This same question was addressed in Palma, where at para. 191 Watt J. stated:

To begin the persuasive force, the weight of the expert opinion evidence that tends to support lack of criminal responsibility (for that matter all the expert opinion evidence) significantly undermined by the absence of admissible evidence to establish the principle basis for the opinion, which I consider to be the history provided by Marcello Palma. No matter how ingeniously it is presented, there is no getting around the self-evident. Without Marcello Palma’s account, there would be little left on the plate on which to found any expert’s opinion.

[63] The expert opinion evidence that I have available to me to determine the issue I am called upon to decide is, to a large extent, only as reliable as the underlying evidence available to the expert. Both experts relied upon medical evidence that was tendered as Exhibit 8, and as agreed was being tendered for the truth of its contents. Much of the remainder of the evidence was hearsay. In this case, much of that evidence came from Mr. Rodrigues. Where this occurs, Sopinka J. in R. v. Lavallee, [1990] 1 S.C.R. 852, makes clear that where there is no direct proof of that information, it detracts from the weight to be given to that opinion. It is also clear from R. v. Abbey, [1982] 68 C.C.C. (2d) 394 (SCC), that an accused raising an NCR defence cannot lead into evidence as proof of its truth from a forensic psychiatrist, what he said to that psychiatrist about the delusions he has experienced on an earlier occasion because such evidence is hearsay.

[64] Dr. Gojer ultimately came to the conclusion that Mr. Rodrigues was in a “severely delusional and manic state” which was present “prior to, during and after the alleged offences”. Dr. Gojer came to those conclusion on the basis of the information provided to him by Mr. Rodrigues, his family, and the observations of the staff at the Ottawa Hospital – “especially the nursing records”.

[65] Where an assessment is conducted of an accused that relies at least in part on the history provided by the accused, the strength of the opinion ultimately expressed is only as strong as the veracity of the history provided by the accused, as well as the other information available to the assessor. If the assessor ultimately concludes that the accused acted involuntarily largely on the basis of unproven hearsay evidence, the accused cannot later complain when the trier of fact places little weight on that opinion.

The Law and Analysis

[66] In this case, the Crown at the beginning of the trial made it clear that it relied on the presumption found in Section 16 of the Criminal Code, that an accused is presumed to be criminally responsible for his or her actions unless the contrary is proven on a balance of probabilities. Largely on the basis of that presumption the Crown asserted it was Mr. Rodrigues’ burden to establish his NCR defence, and that the Crown did not have to call Dr. Wong as part of the Crown’s case in-chief.

[67] In this case, it is Mr. Rodrigues who asserts that at the time of the offences he was suffering from a mental disorder to such an extent that he was incapable of weighing the pros and cons of his actions. While he may have understood that what he did was legally wrong, it is argued that Mr. Rodrigues believed that what he did at the time of the offences was morally right. In asserting this position, it is agreed by both counsel that Mr. Rodrigues has the onus of proving the NCR defence on a balance of probabilities.

[68] The first aspect of a successful NCR defence, requires the court to arrive at a conclusion that the accused was suffering from a mental disorder at the time the crimes were committed. In this case, both Dr. Wong and Dr. Gojer agree that Mr. Rodrigues did in fact suffer from a mental disorder. They disagree as to what that mental disorder was when he committed the offences. Dr. Gojer diagnosed Mr. Rodrigues as suffering from a bipolar mood disorder, with a manic episode and schizoaffective disorder-manic phase.

[69] Dr. Wong diagnosed Mr. Rodrigues as suffering from an unspecified personality disorder (borderline and antisocial traits), and substance abuse disorders (alcohol and cannabis). Dr. Wong offered the opinion that while these diagnoses did not mean Mr. Rodrigues suffered from a major mental illness, he did concede that his diagnosis would fit within the legal definition of a “disease of the mind”.

[70] The real legal issue then, accepting that Mr. Rodrigues suffered from a disease of the mind at the time he committed the offences, is whether he was capable of appreciating the nature and quality of his acts or omissions, or unable to understand the moral or legal wrongfulness of his actions.

[71] In this case, there does not appear to be any dispute between Dr. Gojer and Dr. Wong that Mr. Rodrigues understood that what he did on April 18, 2016 was legally wrong. Dr. Gojer in his cross-examination conceded that despite his mental disorder he could appreciate that by going to the home of Ms. Cruz in the middle of the night, breaking the window and thereby gaining entry without permission, that those actions were legally wrong. Furthermore, Dr. Gojer conceded in cross-examination that Mr. Rodrigues would have known that when he assaulted Ms. Cruz, that this was a wrongful act. Finally, it was agreed by Dr. Gojer that when Mr. Rodrigues took his daughter from the custodial mother, that this was wrong in the eyes of the law. As for his driving, Dr. Gojer accepted that Mr. Rodrigues would have known that his actions were dangerous, unsafe and legally wrong. The point of dispute between Dr. Gojer and Dr. Wong came down to whether or not Mr. Rodrigues would have known that the aforesaid actions while legally wrong, would also have been considered wrong by the average member of society.

[72] The concept of knowing the difference between right and wrong has been debated amongst professionals and legal scholars through many generations. The Court of Appeal in R. v. Campione, 2015 ONCA 67 at para. 30, deals with the difference between right and wrong as follows:

The concept of “moral wrongfulness” in this context has been established by the Supreme Court of Canada in R. v. Chaulk, [1990] 3 S.C.R. 1303, R. v. Oommen, [1994] 2 S.C.R. 507, and their progeny. The focus is not on whether the accused lacks the general capacity to know right from wrong, but rather on whether he or she is deprived – by reason of a mental disorder (including, in some cases, delusions) – of the capacity to know that the particular act is right or wrong having regard to the everyday standards of reasonable people: Oommen, at pp. 516-20. It follows that not every mental illness or delusion-driven subjective view will qualify an accused for the s. 16 defence. As Lamer C.J.C. stated in R. v. Ratti, [1991] 1 S.C.R. 68, at p. 80:

It is not sufficient to decide that the appellant’s act was a result of his delusion. Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.

[73] The concept of moral wrongfulness was further reviewed by the Court of Appeal in Campione at para. 31, as follows:

Moral wrongfulness as contemplated in s. 16 is a slippery concept to apply. However, this Court very succinctly summarized the relevant considerations in Ross, at para. 27, when it stated that “a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was regarded as wrong on a societal standard”: see also R. v. Woodward, 2009 ONCA 911, [2009] O.J. No. 5484, at para. 5.

[74] Most recently, the concept of moral wrongfulness was reviewed by the Court of Appeal in R. v. Dobson, 2018 ONCA 589, where at para. 24 Doherty J.A. stated:

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

[75] In this case, Dr. Gojer concedes that Mr. Rodrigues knew that his actions beginning with the break-in of Ms. Cruz’s residence, ultimately concluding in the abduction and subsequent dangerous driving, were all legally wrong. As the Court of Appeal in R. v. Woodward, 2009 ONCA 911, dealing with the same concept observed at para. 6:

…it is difficult to see how an individual like the appellant who knew his actions were legally wrong would be incapable of understanding that the same act would be regarded as morally wrong by the community. Dr. Gojer provides no insight into this problem.

[76] When cross-examined on this issue from a hypothetical perspective, Dr. Gojer stated:

Q.: An individual suffering from bipolar mood disorder who may have smoked a joint, and is in a severely delusional and manic state, that individual can understand that the acts of break and entering, of committing an assault, kidnapping a child and driving in a dangerous manner over hundreds of kilometres, that that would be considered wrong in the eyes of the law.

A.: Yes.

Q.: Would the same individual who was suffering from the same symptoms and disorders understand that the same acts of breaking into her home and assaulting an ex-partner, taking a child and driving hundreds of miles in a dangerous manner understand those acts would be wrong according to the average member of society?

A.: I mean you framed it as a hypothetical. The answer would be yes.

[77] I am satisfied on the basis of both the evidence of Dr. Wong and Dr. Gojer, that at the time Mr. Rodrigues committed the offences he was suffering from a mental disorder that would fit within the legal definition of “disease of the mind”. Mr. Rodrigues’ treating psychiatrist who saw him both before and after the incident did not diagnose him (as does Dr. Gojer) with bipolar mood disorder with a manic episode, nor did she diagnose him with schizoaffective disorder manic phase.

[78] The diagnosis of Dr. Wong that Mr. Rodrigues suffered from an unspecified personality disorder and substance abuse disorders, is more in line with the conclusions of Dr. Liu - a treating psychiatrist who saw Mr. Rodrigues in that critical time frame described by Dr. Wong as the “bookends”. I accept the evidence of Dr. Wong, as he relied on evidence that was ultimately admitted for the truth of its contents (the medical records), as opposed to the heavier reliance by Dr. Gojer on the unsubstantiated hearsay evidence of Mr. Rodrigues and his family members.

[79] Having accepted that Mr. Rodrigues was suffering from a mental disorder at the time he committed the offences, I then have to deal with the question of whether he knew that his actions were both legally and morally wrong. I accept the evidence of both Dr. Gojer and Dr. Wong that he did in fact know that his actions were legally wrong. The real question is whether Mr. Rodrigues should be excused from criminal responsibility, because a mental disorder at the time he committed the offences deprived him of the capacity “for rational perception and hence rational choice about the rightness or wrongness of the act”. Oommen, para. 30.

[80] While Dr. Gojer refused to accept on the evidence available to him that Mr. Rodrigues would have known that what he did was morally wrong, he did accept that hypothetically an individual suffering from bipolar mood disorder and in a severe delusional and manic state would understand that assaulting someone, abducting a child, breaking and entering into a residence and driving dangerously, those actions are against the law. Dr. Gojer further conceded in cross-examination that hypothetically the same person would know that the same actions, in the same mental state, would be viewed as wrong by the average member of society.

[81] With the aforesaid concession of Dr. Gojer in cross-examination, I do not accept his opinion that Mr. Rodrigues’ mood and thought disorder were of such severity that they would have prevented him from weighing the pros and cons of his actions and, as such, he would not have known that what he did was morally wrong. The comments of Watt J. in Dobson at para. 160, have some application in this regard:

Third, especially in serious cases, like killing a fellow human being, there is little difference between what is legally wrong and what is contrary to the ordinary moral standards of reasonable men and women: Chaulk at para. 101. It follows that if a person accused of a crime in such cases is capable of knowing that his conduct in killing another is legally wrong, despite suffering from a mental disorder, that same person is likely capable of knowing that the same conduct is contrary to the ordinary moral standards of reasonable men and women.

[82] While it goes without saying that abducting a child, assault and dangerous driving do not equate with the offence of murder, they are nonetheless very serious offences. With the unchallenged evidence of both Dr. Gojer and Dr. Wong that Mr. Rodrigues knew that what he was doing was legally wrong, it is difficult to conceive he also would not have appreciated that the ordinary reasonable member of society would have also known it was morally wrong to abduct your child from the custodial parent.

[83] The defence of NCR has not been proven by Mr. Rodrigues on a balance of probabilities. A conviction shall be entered on all five counts before the court.

Justice M.L. Edwards Released: February 28, 2019

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MARIO RODRIGUES Defendant REASONS FOR DECISION Justice M.L. Edwards Released: February 28, 2019