Court File and Parties

Court File No.: CR-17-795-00AP Date: 2019-03-27

Ontario Superior Court of Justice

Summary Conviction Appeal Court

Between: Her Majesty The Queen, Respondent Counsel: Paul Renwick, for the Respondent/Crown

- and -

Balwinderpal Mann, Appellant Counsel: Erin Dann, for the Appellant

Reasons for Judgment [On appeal from the judgment of the Honourable J. Blacklock, dated June 5, 2017]

Before: Durno, J.

[1] The appellant, Balwinderpal Mann, was charged with threatening to kill his father and in a separate incident threatening to kill his nephew. In finding him Not Criminally Responsible (NCR) the trial judge relied upon the appellant’s incapacity to make rational choices. In the result he did not know his conduct was wrong. In doing so, the trial judge cited comments in a Supreme Court of Canada judgment. The psychiatrist upon whose evidence the trial judge relied applied the same analysis in supporting an NCR finding.

[2] The principle issue on this appeal is whether the trial judge applied the correct test in determining the “knowing the conduct was wrong” criteria in s. 16 of the Criminal Code. The appellant, relying in part on a Court of Appeal judgment released after the judgment contends His Honour applied the wrong test. The Crown disagrees.

[3] For the following reasons, I agree with the appellant, the appeal is allowed and a new trial ordered.

The Background

[4] In 2002, the appellant was charged with attempted murder. In 2004, he was found NCR and placed under the supervision of the Ontario Review Board until 2015 when he was granted an absolute discharge.

[5] In September 2016, the appellant travelled to India. His father Gian Mann remained in Canada. On September 17, 2016, during an argument over the phone he told his father when he returned to Canada he would blow his head off, put rat poison in his food and kill him. Being fearful that his son would follow through with his threat, the appellant’s father notified Peel Police.

[6] On July 22, 2016, during a verbal argument the appellant told his nephew, Amar Mann: “Fuck you. You piece of shit. I’ll carve you up into little pieces.” On the same date during an argument with his brother, Narinder Mann, the appellant grabbed Narinder by the neck with his hands. The threat and assault were reported to police at the same time as the threat to the appellant’s father.

[7] The appellant was charged with two counts of threatening. When he arrived back in Canada in October 2016, he was arrested at the Pearson Airport. He told the arresting officers he knew what he was saying to his father and nephew and that it was wrong.

[8] Mr. Mann underwent two psychiatric assessment. Dr. Komer, a psychiatrist at Waypoint, concluded the appellant was criminally responsible. Dr. Lisa Ramshaw, a psychiatrist at the Centre for Addiction and Mental Health (CAMH), concluded it was likely the appellant was NCR.

[9] The appellant told the doctors he felt justified threatening his father because he had provoked him. He told Dr. Ramshaw that he knew what he was saying and never had any psychiatric symptoms. He viewed the charge as a retaliatory remark by his father who sent the police after him. He knew it was wrong and the consequences of jail time.

[10] At his trial, the appellant was arraigned on two threatening charges and one of assault. His counsel (not Ms. Dann) entered pleas of not guilty. After the allegations were read in, the appellant said he admitted the facts in regard to the threats but not the assault. The Crown (not Mr. Renwick) advised the trial judge that she was not proceeding on the assault count and invited His Honour to dismiss that count. The trial judge dismissed the charge.

[11] The appellant’s counsel said the defence had no evidence to call on the counts of threatening and agreed that His Honour should make a finding those counts had been established beyond a reasonable doubt. His Honour did so.

[12] The Crown raised the s. 16 issue and submitted Dr. Ramshaw’s report in support of the Crown’s view that the appellant was NCR. The report noted the appellant suffered from schizophrenia that had the ability to rob him of the capacity to appreciate the nature and quality of his acts or omissions or to know their wrongfulness. At the time of the incidents, the appellant was untreated and becoming increasingly aggressive.

[13] The trial judge declined both counsels’ invitation to make an NCR finding based on Dr. Ramshaw’s report, deciding it was not conclusive as to whether the appellant could appreciate the wrongfulness of his actions. His Honour invited the Crown to call Dr. Ramshaw to testify.

[14] The appellant had told Dr. Komer and Dr. Ramshaw that he did not want to be found NCR and repeated that position to the trial judge. On further inquiry, he said he wanted to be found NCR because the Crown insisted upon it. On the date of his trial, before arraignment, he had said he would be better treated with an NCR finding.

[15] After hearing Dr. Ramshaw testify, the trial judge found the appellant NCR.

[16] Mr. Mann appeals contending: (i) the trial judge erred in applying the wrong tests for a finding under s. 16 and (ii) the verdict in relation to s. 16 was unreasonable

The Positions of Counsel

[17] Ms. Dann submits that if the trial judge applied the wrong test, the result is a new trial and contends that it could be limited to the s. 16 issue. However, if applying the proper test, an NCR finding was unreasonable, the result would be convictions on both counts and this court should sentence the appellant.

[18] The appellant does not contest that he was suffering from a mental illness at the times of the offences. However, he submits that the trial judge erred in two findings: first, that in regard to knowing the nature and consequences of his conduct element of s. 16, His Honour erred in considering whether the appellant did not fully appreciate that his utterances would impact his father and nephew as a “true threat;” and second, in regard to knowing the conduct was wrong criteria, that the trial judge erred in relying on his finding the appellant’s mental disorder “impaired his ability to exercise rational choice that reflected the reality of the situation around him” in finding him NCR. The appellant contends neither finding should be included in a s. 16 analysis. When the proper test is applied to the trial evidence, a s. 16 finding would be unreasonable.

[19] The Crown contends the verdict was reasonable and the trial judge applied the correct law. There was evidence the appellant could not grasp the wrongfulness of his conduct applying the recent Court of Appeal judgment. Mr. Renwick submits that if the appeal is allowed on the second ground the sentencing could be either in the Ontario Court of in this court.

The Expert Evidence

Dr. Ramshaw’s Evidence

[20] In her report, Dr. Ramshaw wrote:

What remains unclear is whether Mr. Mann was truly able to access the wrongfulness at the time of all his alleged offences. He says that he is criminally responsible, does not want to be found NCR, and has little insight into his illness. Based on this, his self-report is not reliable from a psychiatric perspective. While there are no specific indicators that he did not know the wrongfulness at the material times, it is likely that absent his active illness he would not have engaged in such behaviour.

[21] With regards to the appellant’s ability to exercise rational choice being impaired, the doctor testified:

… I would elaborate on that slightly in … comparing past similar behaviours in the context of psychosis, so similar fact scenarios as well … how we would refer to them of what the person was like then. And again going – I would go back to the 2003 stabbing, for example, the 2008, the compensation in the hospital and as well as in 2013, similar when he becomes ill, becomes hostile, has this psychotic agitation, … and engages in behavior that could …. cause others to fear him or cause harm to others.

[22] The doctor agreed with earlier diagnosis that the appellant was suffering from schizophrenia, substance abuse disorder, and unspecified personality disorder. Dr. Ramshaw concluded the appellant was likely suffering from a mental disorder at the times of the offences.

[23] Dr. Ramshaw said that when determining if the person appreciated the nature and consequences of their actions, the assessor considered whether the person understood their actions, that they were making a threat to the individual that would be perceived by the individual. This route to an NCR finding was relatively rare.

[24] In her testimony, in relation to the nature and quality of the act branch the doctor concluded:

… I do think it’s likely, although he may not have put his mind to it in an extraordinary way, that he knew that threatening was indeed that, … it would have an impact on the other person and that the other person would become afraid.

[25] As regards whether the appellant knew that his conduct was legally and morally wrong, the doctor testified:

… it’s not completely – its not a one hundred percent clear in terms of …that particular arm. However, in examining all of his history, his prior episodes of psychosis and aggression. His lack of reliability of his own self report about the offending behavior, given the similarities to previous times when he was observed, or when he was previously found N.C.R., I think it is my – well, it is my opinion that his mental illness significantly impaired his ability to exercise rational choice and access the wrongfulness at the time of the psychosis.

It likely impaired his ability to exercise rational choice and to be able to access the wrongfulness at the time.

[26] That he said he had no regrets supported the conclusion that he did not really understand the impact on others.

The Trial Judge’s Reasons

[27] His Honour noted the onus was on the Crown to satisfy him on a balance of probabilities that as a result of a mental disorder the appellant did not have the capacity to either appreciate the nature and quality of his actions or know they were legally and morally wrong. To be able to appreciate the nature and quality of the act requires a person be able to do more than know its physical nature.

[28] His Honour continued:

The ability to appreciate the nature and quality of an act also involves an ability to estimate and understand the consequences of those actions. This involves more than an understanding of the acts bare physical aspects, but also involves an ability to perceive at some level its impact. This would not ordinarily extend to emotional impact that may flow out of the conduct in question.

In the context of the offence as charged here however, given their nature, I feel it would include an appreciation that the recipient of the threats would take them as truly intimidating or threatening.

[29] His Honour found that if the Crown were to establish on a balance of probabilities the appellant did not appreciate his conduct would be taken as truly intimidating or threatening at the time he engaged in it, and that lack of awareness was caused by a mental disorder, that would mean that he was NCR. Beyond that requirement, he must also have had the capacity to know that his act was both legally and morally wrong in the circumstances as he perceived them.

[30] The trial judge quoted from R. v. Oommen, (1994), 91 C.C.C. (3d) 8 (S.C.C.), that the accused must possess the intellectual ability to know right from wrong in an abstract sense but must also possess the ability to apply that knowledge in a rational way to the alleged criminal act. His Honour continued quoting from Oommen at p. 17:

The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong, and hence, to make a rational choice about whether to do it or not.

[31] His Honour concluded Dr. Ramshaw’s opinion deserved more weight than Dr. Komer’s because Dr. Ramshaw had access to more information including a report by Dr. Klassen and made a “fuller attempt at viewing the current behaviours in the context of Mr. Mann’s overall history and what it suggests.” Further, at the time of Dr. Komer’s assessment, the appellant, who was experienced in the mental health system, did not want to be found NCR. Dr. Komer had acknowledged this as a qualifying feature of his assessment. [^1]

[32] His Honour reviewed the appellant’s background including previous diagnoses and compliance with medication, finding the general background was vital in assessing what most likely was happening at the time of the events being tried. At those times the appellant had stopped taking his medications. The July and September threats seemed to be out of all proportion to the situation he was objectively encountering. In this regard, Dr. Ramshaw noted that ill persons with the appellant’s mental disorder are unable to accurately encode memories and consequently are unreliable historians with respect to past events. His illness caused him to feel he had been wronged when he had not been, or when wronged it was not in as serious a fashion as he believed. This was illustrated by his comments about mistreatment at CAMH.

[33] The trial judge noted the differences between the appellant’s and his father’s version of the phone call from India, finding little reason to not believe the appellant’s father’s version “at least as being the most likely one.” His Honour continued:

It appears likely to me that there was in fact no truly rational basis that should have led to the accused making the very serious order of threats he made in this case against his father, and whatever basis there was became irrationally exaggerated in Mr. Mann’s mind.

The threat to his nephew which occurred roughly two months prior to the threat to the father has some similar characteristics. Again, graphic threats of serious violence coming in response to little by way of immediately rationally based trigger.

Both these incidents have on their face characteristics which are consistent with what has been described as Mr. Mann’s mental illness. This coupled with the fact that he appears not to have been optimally treated at the time, in my view, supports the notion advanced by Dr. Ramshaw that it is likely that his mental illness was operating and that it either caused him to potentially not appreciate the nature and quality of his actions or to fail to know that they were at the time morally wrong.

[34] The trial judge acknowledged that when arrested the appellant said he knew what he was saying when he threatened his father and nephew, that he knew he had symptoms and knew his father contacting the police was in retaliation for threatening his father. His father then set the police on the appellant. He knew it was wrong and the consequences of jail time. His Honour found the comments may have been a reflection of the fact the appellant did not want to be found NCR at the time of his arrest.

[35] There were other factors that supported the notion that he did not fully appreciate that his comments would impact his father and nephew as true threats or that he knew they were morally wrong. He told Dr. Komer that he did not think his father would call the police, he felt his comments were justified and he had absolutely no regrets for threatening his father.

[36] The trial judge noted the appellant was not being optimally treated at the times of the threats, his behaviour was out of step with how he was when optimally treated, and his disease had features to it which caused him to believe he was being mistreated. Objectively, that was not the case or at least not to the degree that he believed. When ill he held those beliefs in a fixed way.

[37] His Honour concluded:

Furthermore, the evidence before me does not reveal circumstances which cause me to think that there were immediately present circumstances that rationally could justify what appears to be an extreme response to both occasions.

In light of all this background, while it may be that the accused was aware that he was threatening both his father and nephew at a basic level, I find however I am satisfied that it is also at least more likely than not that at the time he did so he was not criminally responsible because due to his disease he had an impaired ability to exercise rational choice that reflected the reality of the situation around him. That lack of capacity grew out of his mental disorder and as a result he could not truly access the fact that his conduct was morally wrong in the circumstances.

In light of that there will be a finding of NCR in this case.

The Legislation

[38] Section 16 of the Criminal Code states:

(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.

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

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

[39] There are three branches to s. 16:

i) was the accused suffering from a mental disorder at the time?

ii) if so, did that mental disorder render him incapable of appreciating the nature and quality of the act? or

iii) if so, did that mental disorder make him incapable of knowing that the act or omission was wrong?

[40] There is no dispute the appellant was suffering from a mental disorder at the times of the threats. Accordingly, this appeal deals with the last two branches.

The Grounds of Appeal

Did the Trial Judge Apply the Wrong Tests for s. 16?

[41] Turning next to the grounds of appeal, the appellant submits that the trial judge applied the wrong tests on the second and third branches of the s. 16 inquiry.

Did the trial judge err in assessing whether the appellant knew the nature and quality of the act?

The Positions of Counsel

[42] The appellant submits that in finding the appellant’s ability to appreciate the nature and quality of the acts also involved the ability to estimate and understand the consequences of those actions, the trial judge erred. Ms. Dann submits that the following statements from the start of the Reasons represents a significant misstatement of the law:

In the context of this case, if the Crown can satisfy me that it is more likely than not true that Mr. Mann did not appreciate his conduct would be taken as truly intimidating or threatening at the time he engaged in it, and that lack of awareness was caused by a mental disorder, that would mean he was not criminally responsible.

It has been said that to appreciate the nature and quality of the act a person must be able to do more than know its physical nature. The ability to appreciate the nature and quality of an act also involves an ability to estimate and understand the consequences of those actions. This involves more than an understanding of the act’s bare physical aspects, but also involves an ability to perceive at some level its impact. This would not ordinarily extend to emotional impact that may flow out of the conduct in question.

In the context of the offence as charged here however, given their nature, I feel it would include an appreciation that the recipient of the threats would take them as truly intimidating or threatening. [emphasis added]

[43] The appellant submits that appreciating the nature and quality of the act relates to the physical consequences of the act, citing R. v. Landry, [1991] 1 S.C.R. 99 at pp. 108-09. Further, in R. v. Kjeldsen, [1981] 2 S.C.R. 617, at p. 623, the Supreme Court held that to be capable of appreciating the nature and quality of the act, the accused must have the capacity to know what he or she is doing. In Kjeldsen, it was hitting a woman on the head with a rock with great force. In addition, the accused must have the capacity to estimate and to understand the physical consequences which flow from the act. In that case, it was causing physical injury which could result in death.

[44] The appellant submits trial judge’s approach reflects two errors. First, it is inconsistent with, a long and well-established line of authorities regarding the elements of the threatening offence. The inability to appreciate the nature and quality of an act generally relates to the mens rea of an offence, citing R. v. Abbey, [1982] 2 S.C.R. 24 at p. 35. The mens rea of threatening is making the statement with the intent to intimidate. It is not an element of the offence that the recipient was in fact intimidated. There can be an offence even though the words do not have the intended consequences: R. v. O’Brien, 2013 SCC 2, at para. 2. The trial judge’s approach changed the mental element of the offence by requiring the recipients felt truly threatened and that the appellant was aware of it.

[45] Secondly, the appellant contends an appreciation of the emotional effect of the act on others is not a consideration under the first arm of s. 16, citing Kjeldsen, at p. 624-26. The test does not involve a consideration of whether the accused has appropriate feelings about the effect of his or her actions on others. To appreciate the nature and quality of his threats, the appellant did not have to be aware of the impact they would have on his father and nephew.

[46] Further, the trial judge’s comments have to be viewed in the context that Dr. Ramshaw, upon whom the trial judge relied, testified that it was likely the appellant did appreciate the nature and quality of his acts. It was likely he knew that threatening was involved and it was likely that he knew the threatening could have an impact on the recipients and the other person would become afraid.

[47] The Crown submits this issue is not significant because the trial judge never made a finding the appellant did not appreciate the nature and quality of his conduct because of his mental disorder. Further, expert evidence is not required for an NCR finding, citing R. v. Quenneville, [2010] O.J. No. 1235, (C.A.), at paras. 26-28. Even where there is expert evidence, the trial judge can reject the opinion.

[48] The Crown submits the mens rea for threatening required the trial judge to find the appellant intended that his threats be intimidating. There was further evidence the appellant did not appreciate the nature and quality of his actions - he expressed no regret, showing a lack of insight into his behaviour. He was psychotic at the time and a review of his past conduct led Dr. Ramshaw to conclude he was acting under irrational persecutory beliefs at the time.

Analysis

[49] While I initially agreed with the Crown that the trial judge did not make a finding on this branch of s. 16, a further review of the Reasons as referenced above at para. 35 caused a reconsideration of that conclusion. For ease of reference, His Honour said:

Both these incidents have on their face characteristics which are consistent with what has been described as Mr. Mann’s mental illness. This coupled with the fact that he appears not to have been optimally treated at the time, in my view, supports the notion advanced by Dr. Ramshaw that it is likely that his mental illness was operating and that it either caused him to potentially not appreciate the nature and quality of his actions or to fail to know that they were at the time morally wrong.

[50] Assuming the trial judge agreed with Dr. Ramshaw’s conclusion on the nature and quality of the act branch and that the above noted paragraph was an NCR finding on that branch, I will consider whether the trial judge applied the correct test. The issue is whether it was appropriate for the trial judge to consider whether the appellant’s ability to perceive the impact his threats would have upon his father and nephew was relevant to the s. 16 analysis. His Honour noted that it would not normally extend to emotional impact that may flow out of the conduct. However, in the context of threatening charges, the question was whether the Crown established that the appellant probably did not appreciate that his words would be taken as truly intimidating or threatening because of his mental disorder.

[51] The offence of threatening death or bodily harm has the following elements:

i) the actus reus is “the actual speaking or uttering of the threats of death or serious bodily harm, and

ii) the mens rea is that the words are meant to convey a threat, that they are meant to intimidate or to be taken seriously: R. v. Clemente and R. v. O’Brien, 2013 SCC 2, at para. 2.

[52] Further, in O’Brien, the Court held, at para. 13:

… it is not an essential element of the offence under s. 264.1(1)(a) that the recipient of the threats uttered by the accused feel intimidated by them or be shown to have taken them seriously. All that needs to be proven is that they were intended by the accused to have that effect.

[53] In Kjeldsen at p. 626, the Supreme Court of Canada adopted the following comments from R. v. Simpson (1977), 35 C.C.C. (2d) 337:

While I am of the view that s. 16(2) exempts from liability an accused who by reason of disease of the mind has no real understanding of the nature, character and consequences of the act at the time of its commission, I do not think the exemption provided by the section extends to one who has the necessary understanding of the nature, character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems from "disease of the mind". Appreciation of the nature and quality of the act does not import a requirement that the act be accompanied by appropriate feeling about the effect of the act on other people: see Willgoss v. The Queen (1960), 105 C.L.R. 295; R. v. Leech (1972), 10 C.C.C. (2d) 149, 21 C.R.N.S. 1, [1973] 1 W.W.R. 744; R. v. Craig (1974), 22 C.C.C. (2d) 212, [1975] 2 W.W.R. 314 (affirmed , 28 C.C.C. (2d) 311). No doubt the absence of such feelings is a common characteristic of many persons who engage in repeated and serious criminal conduct.

[54] In Kjeldsen, a murder trial, the Court held at p. 623:

… To be capable of 'appreciating' the nature and quality of his acts, an accused person must have the capacity to know what he is doing; in the case at bar, for example, to know that he was hitting the woman on the head with the rock, with great force, and in addition he must have the capacity to estimate and to understand the physical consequences which would flow from his act, in this case that he was causing physical injury which could result in death.

[55] I agree with the appellant and am persuaded the trial judge erred in incorporating into the “nature and quality of the act” criteria whether the appellant was capable of appreciating his father and nephew would take the threats as “truly intimidating or threatening.” It is not an element of the offence that the recipients were intimidated or took the threats seriously. Neither was it necessary for the appellant to have understood that the recipients would have been intimidated. The element of the offence is the accused’s intention that the comments be intimidating or threatening. Whether they were in fact or would be taken to be intimidating or threatening are not elements of the offence.

[56] In that context, it is difficult to see how what the appellant thought his father’s and nephew’s reactions would be factors into the s. 16 assessment. The appellant clearly had the capacity to know what he was doing. During arguments he was angry and made threats to the persons with whom he was arguing intending that they intimidate.

Did the trial judge err in assessing whether the appellant knew his words were wrong?

The Positions of Counsel

[57] The appellant submits the evidence was clear that he felt he was being mistreated by his father and nephew. The perceived mistreatment led to the threats. In finding the appellant NCR, the trial judge twice found the evidence did not reveal circumstances that “rationally would justify what appears to be an extreme response.” While the appellant may have been aware that he was threatening both men “at a basic level,” it was more likely than not that he had an impaired ability to exercise rational choice that reflected the reality of the situation around him. He could not truly access the fact that his conduct was morally wrong in the circumstances.

[58] The appellant submits the trial judge misstated the NCR test regarding knowing the act was wrong. An accused is not NCR because of an impaired ability to exercise rational choice or because the offence is causally connected to the mental disorder. Here, the test is, did the appellant have the capacity to know that uttering the threats was wrong from a societal standard.

[59] Ms. Dann references Oommen where the Supreme Court of Canada held, assuming that appellant’s delusions were true, the question was not whether a reasonable person would have seen the threat to life and a need for death-threatening force. Rather, the question was should the accused be exempted from criminal responsibility because a mental disorder at the time deprived him or her of the capacity for rational perception and rational choice about the rightness or wrongness of the act.

[60] Here, there was no evidence the appellant felt compelled to threaten his father and nephew in order to protect himself, nor to suggest that he felt morally justified in threatening them. He knew his acts were legally wrong.

[61] Dr. Ramshaw’s report noted that without his mental illness it was likely the appellant would not have committed the offences. However, that an accused would not have committed the offence were he or she not suffering from a mental disorder, does not establish the accused is NCR. Dr. Ramshaw testified that it was not one hundred percent clear with regards to the appellant knowing the acts were wrong. She found it likely that his mental illness significantly impaired his ability to exercise rational choice and to access the wrongfulness at the time as a result of his psychosis.

[62] Further, the appellant submits that from reading the reasons as a whole, the trial judge erred by focusing on the quality of the appellant’s decision-making ability to know that uttering threats was wrong, twice placing emphasis on the conclusion the threats were an overreaction to the situations about which he was arguing with his father and nephew. As the Court of Appeal held in R. v. Guidolin, 2011 ONCA 264, at paras. 22, the inability to exercise a normal person’s judgment is a long way removed from being incapable of knowing one’s actions were wrong according to normal standards applicable in the community. The trial judge never addressed the key question – whether at the time he made the threats the appellant was capable of knowing society would view the conduct as wrong.

[63] Ms. Dann submits the trial judge’s reliance on the portions of Oommen upon which he relied is not unusual. Nor is Dr. Ramshaw’s in relation to these charges and Dr. Klassen’s in relation to the appellant’s previous NCR finding. The issue is whether the reliance was based upon a misinterpretation of what Oommen means. While the recent Court of Appeal judgment in Dodson, makes it clear the reliance was based on a misinterpretation, that is not new law as Doherty J.A. noted.

[64] The Crown reads Dodson differently, contending para. 24 upon which both counsel focus, describes the appellant. The appellant provided a moral justification for his conduct when he told Dr. Komer that his father provoked him. He felt society would feel he was justified because his father was bad. Since that moral justification was based upon the appellant’s mental disorder, NCR was the appropriate disposition.

[65] Further, the following factors were relied upon as providing evidentiary support for the trial judge to conclude the appellant did not know what he was doing was morally wrong: the appellant’s lack of insight or regret as well as his failure to recall the exact threats made and efforts to create another scenario.

[66] However, Mr. Renwick concedes that some of those “bits and pieces” relied upon by the trial judge were neutral in the s. 16 analysis. For example, that the appellant had no regrets for his conduct does not support an NCR or criminally responsible finding.

[67] The Crown contends that the trial judge did not find the appellant could not make a rational choice because his mental illness impaired his ability to access the wrongfulness of this conduct. His Honour reviewed the evidence that supported his finding the appellant was unable to know his conduct was morally wrong.

Analysis

[68] In R. v. Dobson, 2018 ONCA 589, released after counsel had filed their factums but before their oral submissions, the Court of Appeal examined whether the trial judge had misinterpreted the meaning of “wrong” in s. 16, outlining arguments similar to those advanced in this case.

[69] In particular, the trial judge found:

120 Under the second branch of section 16(1), the term "wrong" refers to morally wrong, that is to say, contrary to the ordinary moral standards of reasonable men and women: Chaulk, at para 101. What is "morally wrong" is not to be judged by the personal standards of the person charged but, rather, by his or her awareness that society regards the conduct as wrong: Chaulk, at para 101; Schwartz v. The Queen, [1977] 1 S.C.R. 673, at p. 678. In other words, the exemption extends only to those accused of crime who, because of a mental disorder, are incapable of knowing that society generally considers their conduct to be immoral: Chaulk, at paras 101; 108; and 111.

121 This branch of section 16(1) does not focus on an accused's general capacity to understand right and wrong in some abstract sense. Rather, the provision focuses on the particular capacity of the person charged to understand that his or her act, in the circumstances, would be regarded as wrong according to the ordinary moral standards of reasonable members of society: Oommen, at paras 21 and 24. An accused who has the ability (capacity) to know right from wrong in the abstract sense and the ability to apply that knowledge in a rational way to an allegedly criminal act cannot claim exemption under this branch of section 16(1): Oommen, at paras 21 and 22.

[70] Dodson was convicted of murder in a non-jury trial. On appeal he submitted the trial judge applied too narrow an interpretation of morally wrong by excluding a consideration of whether he had the capacity to make a rational choice. In doing so, he relied upon the paragraph from Oommen that the trial judge relied upon in this case. For ease of reference that paragraph is:

The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong, and hence, to make a rational choice about whether to do it or not.

[71] The appellant in Dodson also relied upon the following excerpt from Oommen:

Thus the question is not whether, assuming the delusions to be true, a reasonable person would have seen a threat to life and a need for death-threatening force. Rather, the real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.

[72] The Crown in Dodson submitted that Oommen did not suggest assessing the accused’s capacity to know his or her actions were wrong exclusively by reference to his or her delusional perception. It is not enough that an accused in a delusional state believed their acts were right according to their own moral code. An accused could only be found NCR if the accused lacked the capacity to know that society would regard what was done as morally wrong. In doing so, the Crown relied on the following excerpts from Oommen:

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 …

Finally, it should be noted that we are not here concerned with the psychopath or the person who follows a personal and deviant code of right and wrong. The accused in the case at bar accepted society's views on right and wrong. The suggestion is that, accepting those views, he was unable because of his delusion to perceive that his act of killing was wrong in the particular circumstances of the case. On the contrary, as the psychiatrists testified, he viewed it as right. This is different from the psychopath or person following a deviant moral code. Such a person is capable of knowing that his or her acts are wrong in the eyes of society, and despite such knowledge, chooses to commit them.

[73] Doherty J. A. found that while it may be that different extracts from Oommen are open to different interpretations, the Crown’s interpretation was consistent with the interpretation in an “unbroken line of authority” from the Court of Appeal citing the following five Court of Appeal judgments: see R. v. Ross, 2009 ONCA 149, at paras. 24-27; R. v. Woodward, 2009 ONCA 911, at para. 5; R. v. Guidolin, 2011 ONCA 264, at paras. 17-18; R. v. Szostak, 2012 ONCA 503, 111 O.R. (3d) 241, at paras. 56-58; R. v. Campione, 2015 ONCA 67, 321 C.C.C. (3d) 63, at para. 30.

[74] With regards to the meaning of ‘wrong,’ Justice Doherty noted the Crown relied upon the following Supreme Court of Canada judgments as noted at paras. 20 and 21 of Dodson:

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

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

21 In R. v. Ratti, [1991] 1 S.C.R. 68, a case in which the accused, like the accused in the present case, suffered from schizophrenia, the Chief Justice explained the meaning of "wrong", at p. 80, in these terms:

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

[75] Justice Doherty quoted from Campione, as follows:

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

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

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

[76] Justice Doherty continued in the paragraph upon which both counsel rely:

24 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.

[77] Doherty J.A. found at para. 31:

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.

[78] Whether regarded as a restatement of the morally wrong criteria (a view I share with the appellant) or as new law, Dodson is clear that the “narrow” test adopted by the Dodson trial judge is a correct statement of the test, a test that does not include the capacity to make rational choices.

[79] Regrettably, the trial judge did not have the benefit of Dodson. The trial Crown and Dr. Ramshaw advanced their positions on a misinterpretation of Oommen. Accordingly, I am persuaded the trial judge applied the wrong test when assessing whether the appellant understood the wrongfulness of his conduct. His Honour relied upon the fact the appellant’s mental disorder rendered him incapable of making a rational choice and that his decision to threaten his father and uncle were overreactions in the course of the arguments. That is what the appellant in Dodson submitted was the NCR test, a wider scope than the Dodson trial judge applied. The Court of Appeal found that was not the appropriate test.

[80] Here, in concluding the appellant was NCR, the trial judge relied upon his conclusion that there was no rational basis for the appellant to threaten either relative, he had over-reacted. By doing so, His Honour introduced into the analysis the reasonableness of the appellant’s belief, a factor Dodson found unduly complicates the inquiry. Further, in Campione the Court found the test was not the unreasonableness of the beliefs. In these circumstances, the trial judge erred in focusing on the quality of the appellant’s decision making and rational judgment.

[81] The trial judge and Dr. Ramshaw also proceeded on the basis that the appellant would not have engaged in the threatening conduct absent his mental disorder. Recall that Dr. Ramshaw said there were no specific indications that the appellant did not know the wrongfulness at the material time. What tipped the scale for the doctor was that it was “likely that absent his active mental illness he would not have engaged in such behaviour.”

[82] However, that an accused acted as a result of his or her delusion alone does not in itself result in an NCR finding: Ratti. [1992] 1 S.C.R. 68. It is difficult to see how having no specific indicators that he did not know his conduct was wrong, becomes an NCR finding because he would not have said what he said absent his mental illness.

[83] I am persuaded the trial judge erred in applying the test for knowing the moral wrongfulness of the appellant’s acts.

Was the Verdict Unreasonable?

The Positions of Counsel

[84] Ms. Dann submits the starting point in this analysis is that the appellant was presumed to be criminally responsible: Criminal Code, s. 16 (2). The onus was on the Crown to displace that presumption. Applying the correct tests, on the trial evidence the Crown could not meet the onus. Properly applying the s. 16 test the evidence was incapable of rebutting the presumption of criminal responsibility.

[85] Further, the appellant submits the fact that he consented to the NCR finding, while a relevant fact to take into account when the reasonableness of a verdict is challenged, does not preclude him from challenging that finding on appeal, citing R. v. Quenneville, 2010 ONCA 223 at para. 18 where the Court of Appeal held:

Even if this were a principle of fundamental justice, it does not follow, as the appellants contend, that an accused person must not be allowed to consent to an NCRMD finding without an inquiry like that found in s. 606(1.1). Ensuring that someone has knowledge of the full consequences of consenting to an NCRMD verdict does not prevent the person from consenting, despite being criminally responsible. More importantly, the finding of NCRMD turns not on the consent of the accused, but on the court being required to conclude, on the balance of probabilities, that the criteria of s. 16(1) of the Code are met. The proposed inquiry does not achieve the proposed principle of fundamental justice, but would do no more than add a possible procedural safeguard to that process. [emphasis added]

[86] Ms. Dann fairly raised this issue. Mr. Renwick fairly and appropriately did not urge the dismissal of the appeal of this ground on that basis.

[87] When the trial submissions started, the appellant’s counsel and the appellant agreed to an NCR finding. However, it was far from a consistent position. The appellant had opposed an NCR finding when arrested and when he spoke to Dr. Komer and Dr. Ramshaw. At the end of the evidence the appellant was granted leave to make submissions although represented by counsel. Those submissions reflected a position that he was not NCR. When he eventually agreed to the NCR finding, one of his stated reasons was that the Crown wanted an NCR finding. The Crown’s wish in itself is not a motivation for agreeing to an NCR finding.

[88] The appellant’s equivocating regarding an NCR finding, continued after the finding. The appeal was adjourned once to permit counsel to obtain clear instructions. Ms. Dann prudently sought an inquiry on the record as to whether the appellant wanted to proceed with his appeal before oral submission were made on the appeal. He did.

[89] Given this history and the undisputed fact the appellant suffers from a mental disorder, I do not regard his consent to the NCR finding as determinative or relevant on the appeal. Further, the full hearing required by the trial judge can be viewed as reflective of similar concerns.

[90] Ms. Dann submits that the fact an accused suffers from a mental disorder that is causative of the criminal conduct does not result in a s. 16 finding. An NCR finding is only made where the court is satisfied that the mental disorder rendered the accused incapable of appreciating the nature and quality of the act or that is was morally and legally wrong. She queries what evidence showed the appellant lacked the capacity required for a s. 16 finding.

[91] While it could be concluded that the appellant’s anger at his father and nephew were as a result of his mental disorder, that does not equate with a finding his mental disorder prevented him from appreciating either the nature and quality of the acts or that they were wrong. At its highest, Dr. Ramshaw said he would not have committed the offence absent his mental illness. That is not the test.

[92] The Crown submits the trial judge was entitled to accept or reject any piece of evidence, including Dr. Ramshaw’s opinion. As long as there was some evidence to support the findings, the finding cannot be overturned on appeal as unreasonable. There was evidence to support the NCR finding. Mr. Renwick submits the evidence the appellant acted under the belief his actions were justified because of his mental disorder, results in the rejection of the appellant’s argument on this ground.

The Law

[93] In R. v. Willocks (2006), 210 C.C.C. (3d) 60 (Ont. C.A.) Doherty J.A. outlined the law with respect to unreasonable verdicts as follows:

[22] Section 686(1)(a)(i) of the Criminal Code mandates appellate review of the sufficiency of the evidence said to justify the conviction. The review is a limited one. An appellate court must determine whether a properly instructed trier of fact, acting judicially, that is reasonably, could have convicted the accused on the totality of the evidence. In performing this task, the appellate court must view the entirety of the evidence through “the lens of judicial experience”: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 40 (S.C.C.).

[23] In exercising its power to review the reasonableness of the verdict, the appellate court cannot simply substitute its view as to the appropriate verdict. Nor is it sufficient for the appellate court to have a “lurking doubt” or some other vague discomfort as to the correctness of the verdict. As Arbour J. said in Biniaris at para. 42, in describing the function of appellate review for reasonableness:

To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight. It also requires that the reviewing court articulate as explicitly and precisely as possible the grounds for its intervention. I wish to stress the importance of explicitness in the articulation of the reasons that support a finding that a verdict is unreasonable or cannot be supported by the evidence [emphasis added].

[24] Where the verdict is reached by a judge alone, the reasons of the trial judge can provide valuable insight into the reasonableness of the verdict. However, errors in the reasons are not a pre-condition to a finding that a verdict is unreasonable, and errors do not compel a finding that the verdict is unreasonable: R. v. Biniaris, supra, at para. 37.

Analysis

[94] With regards to the ‘nature and quality of the act” criteria, applying the appropriate test, I am persuaded an NCR finding would have been unreasonable. I reach that conclusion because Dr. Ramshaw said that the appellant likely appreciated the nature and quality of the act. I appreciate that His Honour was entitled to reject that evidence. However, with the requirement the appellant was capable of appreciating his father and nephew would be intimidated or afraid of the appellant removed and Dr. Ramshaw’s evidence rejected on this point, there was no evidence upon which an NCR finding could be made.

[95] The knowing the act was morally wrong criteria involves several issues. First, the appellant submitted that the trial judge never addressed the key question – whether at the time he made the threats the appellant was capable of knowing that society would view the conduct as wrong. I agree. To succeed on this ground of appeal, the appellant must show that applying that test there was no evidence upon which to base an NCR finding. I am not persuaded that is so.

[96] Second, I agree with both counsel that to the extent the trial judge relied upon, in Mr. Renwick’s words, “other pieces of evidence,” those factors did not support an NCR finding. The appellant’s lack of remorse and not thinking his father would call the police were at their highest neutral.

[97] The third additional factor that the trial judge relied upon – the appellant’s belief his acts were justified is more challenging. As noted earlier, that an accused acts because of their belief the acts were justified in itself is not a basis upon which the judge could base an NCR finding. However, it is a factor to consider.

[98] In all the circumstances, I am not persuaded a s. 16 finding would be unreasonable on this evidence.

Should the new trial be restricted to whether the Crown can establish the appellant was probably NCR?

[99] Having determined an NCR verdict would not unreasonable applying the proper tests, a new trial must be ordered. Ms. Dann submitted the new trial could be limited to the issue of criminal responsibility, relying upon R. v. Luedecke (2008), 2008 ONCA 716, 236 C.C.C. (3d) 317 (Ont. C.A.) where the Court held there was authority to make such an order provided it does not interfere with appellant’s rights and is consistent with the demands of justice.

[100] For the following reasons, I am not persuaded a limited issues retrial is appropriate. First, it cannot be said that a limited issues retrial would not interfere with the appellant’s rights. The appellant’s inconsistent positions in regard to his intentions makes it difficult to conclude his rights would not be compromised by a limited issue retrial. The issues are not as defined as they were in Luedecke. Second, the trial judge found the appellant’s father’s account of the argument was probably more reliable than the appellants. If the father’s version was the basis of the Crown’s NCR argument, the finding would have to be made on a beyond a reasonable doubt standard after hearing evidence. That issue would not be determined in a limited issue retrial.

[101] I am not persuaded there is a good reason to have a limited issue retrial. The new trial will be on all issues.

Conclusion

[102] The appeal is allowed and a new trial ordered.

[103] The appellant is ordered to appear in 104 court, Brampton Ontario Court of Justice on April 9, 2019 at 9:00 a.m. to set a new trial date.

Durno, J. Released: March 27, 2019

[^1]: The appellant took the same position before Dr. Ramshaw.