Court File and Parties

COURT FILE NO.: CR-16-1-222 DATE: 20190521

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - SHOU CHEN

Counsel: Monica Gharabaway and Karen Simone, for the Crown Gregory Leslie and Michelle Fernandes, for the accused

HEARD: April 12, 16, 2019

K.L. Campbell J.:

Ruling

Defence Mistrial Application

A. Overview

[1] The accused, Shou Chen, faces an indictment that charges him with the second-degree murder of Xian Xu Liu. The offence is alleged to have been committed on or about October 15, 2014, in the park outside the Wallace Emerson Community Centre, which is located near the intersection of Dufferin Street and Lappin Avenue in the city of Toronto. The Crown contends, essentially, that the accused and the victim, who were previously well-known to each other, coincidentally met up on a footpath in this park area. Ms. Liu was out for her daily walk, and the accused was riding his bicycle. The Crown contends that, for some reason, during the course of their ensuing conversation, the accused attacked Ms. Liu, took her physically to the ground, and ultimately beat her to death with a metal bar.

[2] At the close of the Crown’s case, but before the defence elected as to whether or not any evidence would be called on behalf of the accused, defence counsel brought an application to have a mistrial declared. This application was based, essentially, on the fact that Dr. Mark Pearce, a forensic psychiatrist, had recently provided the parties with a supplementary report indicating that he was no longer of the opinion that the accused was, on balance, not criminally responsible for his killing of the deceased. Defence counsel argued that a mistrial should be declared so that efforts could be undertaken to see if another psychiatrist could be found that might support the “not criminally responsible” defence sought to be advanced on behalf of the accused.

[3] After reviewing the various medical reports that have been prepared to-date concerning the accused and hearing the detailed submissions of counsel on this issue, I advised the parties that the mistrial application was dismissed. Further, I advised the parties that I would subsequently provide reasons explaining this decision. These are those reasons.

B. The Governing Legal Standard

[4] There is no dispute between the parties as to the nature of the legal standard that must be applied on a mistrial application. Nevertheless, it is analytically helpful to articulate the nature of that legal standard.

[5] The governing jurisprudence suggests that the declaration of a mistrial is a remedy of “last resort” that is “reserved for the clearest of cases,” where no other remedy, short of a mistrial, will adequately redress the actual harm that that has been occasioned. In short, a mistrial should only be declared where such an order is “necessary to prevent a miscarriage of justice.” See R. v. Paterson (1998), 122 C.C.C. (3d) 254, [1998] B.C.J. No. 126 (C.A.), at para. 93; R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at paras. 74-77; R. v. Toutissani, 2007 ONCA 773, [2007] O.J. No. 4364, at para. 9; R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354, at para. 52; R. v. Chaisson, 2009 ONCA 789, [2009] O.J. No. 4682, at para. 14; R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at paras. 39-40; R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at paras. 50, 55; R. v. Osborne, 2017 ONCA 129, 134 O.R. (3d) 561, at para. 81, leave denied, 2017 CarswellOnt 19579; E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (Loose-Leaf 2nd ed., 2018), vol. 2, at §17:1080, at pp. 17-43 to 17-46.

C. The Evolution of the Psychiatric Opinion Evidence in This Case

[6] On September 17, 2018, Dr. Mark Pearce, a forensic psychiatrist working on the Forensic Assessment Unit of the Ontario Shores Centre for Mental Health Sciences in Whitby provided a report outlining his professional opinions regarding the accused. Initially, the accused had been admitted to this Forensic Assessment Unit for the purposes of the completion of a “privileged, defence-requested assessment of criminal responsibility.” However, concerns over his fitness to stand trial quickly emerged and, in time, an assessment was ordered by the court. Ultimately, the detailed report prepared by Dr. Pearce included all of the following:

• Dr. Pearce traced the social, family and employment history of the accused, who grew up and worked as a farmer in the Taishan province of China, and who subsequently came to Canada, in 2000, with his wife and family, where he worked in the food industry until his retirement.
• Dr. Pearce reported that, according to the accused’s family members, approximately ten years ago, the accused began to display psychiatric symptoms, including apparent “hallucinations, persecutory delusional thinking and somatic delusions.” His family was concerned because the accused began talking to himself, reported hearing voices and seeing people following him, and he became preoccupied with his health. He also thought strangers were following him and wanted to kill him. The accused also became more forgetful. However, the accused’s family did not seek out any psychiatric treatment.
• Dr. Pearce also reported that, according to the accused’s family members, the accused was a peaceful, helpful man, not prone to anger, who was a “hardworking, loving and devoted father and husband.” He never had any criminal charges or convictions, in China or in Canada.
• Dr. Pearce observed that, as of late, the accused denied all psychotic symptoms. Historically, however, the accused claimed that a ghost would sit on him and paralyze him, and he acknowledged that he had seen people and heard voices in the past that others were unable to see. Dr. Pearce stated that, before commencing anti-psychotic medication, the accused “often seemed distracted and appeared to respond to internal stimuli, suggestive of ongoing hallucinations.”
• Dr. Pearce detailed the circumstances of the alleged offence, according to the police synopsis of the events surrounding the accused’s killing of the 65-year-old deceased woman, including his use of a metal bar, and the physical injuries suffered by the deceased, as outlined by the pathologist in his post-mortem report.
• In his discussions with the accused, Dr. Pearce asked him about the circumstances of the alleged offence, and in his report Dr. Pearce outlined the details that were provided to him by the accused as to his participation in the alleged offence. Dr. Pearce noted that, over time, the accused provided a “consistent account of his experience around the time” of the killing of the deceased. Essentially, the accused repeatedly indicated that “a ghost [was] directing his behavior” and he was not able to “resist or otherwise prevent the assault” on the deceased. The accused admitted that he hit her with the metal bar.
• Dr. Pearce indicated that, in his opinion, the most likely diagnosis is that the accused suffers from a “late-onset form of schizophrenia.” Dr. Pearce described this as a “major mental illness” that involves symptoms of psychosis, including delusions, hallucinations, and grossly disorganized thought and behavior. Dr. Pearce indicated that this “major mental disorder” fits within the legal definition of “disease of the mind” within the meaning of s. 16 of the Criminal Code.
• Dr. Pearce concluded that, given the “significant improvements to his mental state” since he was placed on medication, the accused is fit to stand trial.
• Dr. Pearce also expressed the opinion that it was “possible” that, at the time he killed the deceased, he was “unaware of the nature and quality of the act” given the symptoms of his mental disorder. Dr. Pearce indicated, however, that it was “most likely” that the question of the accused’s criminal responsibility “hinges” on whether, at the time of the killing, the accused was “incapable of knowing that the act was morally or legally wrong.”
• Dr. Pearce explained that as he was not able to arrange for any psychological testing, he was not able to “exclude the possibility that [the accused] has malingered symptoms of psychosis.” However, he doubted that to be the case. In reaching this conclusion, Dr. Pearce acknowledged that he had given the accused’s “self-report a great deal of weight in considering this matter,” and considered it to be “reliable.” Dr. Pearce again mentioned, in outlining the “limitations” on his opinion, the fact that he had not been able to arrange for any “psychological testing.”
• Ultimately, Dr. Pearce indicated that he was left to conclude that the accused’s actions were “driven by his psychotic disorder,” and that he was “unable to turn his mind to how the average person would view the moral and/or legal wrongfulness of his actions.” The accused, Dr. Pearce concluded, was “deprived of the capacity for rational perception,” was unable to “choose whether to commit the act in question or not,” and “lacked the capacity to know that society regarded his actions as morally wrong.” Accordingly, Dr. Pearce concluded that “on the balance of probabilities and from a purely psychiatric perspective” the accused was “not criminally responsible for the murder of Ms. Liu.”

[7] Subsequently, the accused was assessed by experts retained on behalf of the Crown. On December 13, 2018, Dr. Percy Wright, a psychologist at the Centre for Addiction and Mental Health (CAMH) in Toronto, provided a “Psychology Consultation” report outlining his conclusions regarding his psychological testing of the accused. The accused had consented to meet with Dr. Wright as part of the process in obtaining a “second opinion” in relation to the criminal responsibility of the accused. In this report, Dr. Wright stated all of the following:

• In his clinical findings, Dr. Wright noted that the accused was “hesitant to commit to answering questions specifically or commit to test answers.” His “very slow” response resulted in the testing process taking “much more time than would be expected based on what was actually completed.” The accused eventually completed a number of “extremely simple tasks” which “typically elicit rapid almost automatic responses,” but he “pondered at length before responding.” Dr. Wright also noted that the accused “withdrew his effort” on tasks and “required a lot of encouragement to continue.”
• As to “test results” for the accused, Dr. Wright noted that the accused completed a test designed as a “measure of malingering cognitive impairment.” It is a “completely visual test” that “appears much more difficult than it actually is.” The accused took a “very long time” to complete even the “warm up examples,” “repeatedly choosing the wrong answers in this extremely easy task.” These examples typically elicit an “automatic response if the person is exhibiting good effort.” Dr. Wright observed that, when the accused completed the actual test, which contains three trials, he generated substantial errors on each trial, recording a performance that was “well below 98% of hospitalized dementia patients and contains a negative learning slope, which is not observed in patients with good effort.” Dr. Wright concluded that these results “clearly indicated that [the accused] was attempting to malinger cognitive impairment.” Other psychological tests revealed a similar absence of “good effort” on the part of the accused.
• In his summary, Dr. Wright concluded that the “[t]est results clearly indicated malingering of cognitive impairment” on the part of the accused and “likely an attempt to prevent fulsome analysis of his thought processes.” Dr. Wright also indicated that these results suggest that the accused “believes he needs to present himself as having impaired memory and cognition in order to be treated more leniently from the courts,” although the results “do not in themselves indicate the lack of mental disorder.”

[8] On December 17, 2018, Dr. A. Iosif, a forensic psychiatrist working in the Forensic Psycholegal Clinic, part of the Law and Mental Health Program, at the Centre for Addiction and Mental Health (CAMH) in Toronto, provided a report outlining her professional opinions regarding the accused, Shou Chen. The accused had earlier consented to an assessment by Dr. Iosif, so that a “second opinion” could be obtained regarding the issue of his criminal responsibility for the death of Ms. Liu. Dr. Iosif met twice with the accused, for the purposes of this assessment, and spent a total of ten interview hours with him. Dr. Iosif also reviewed the report of Dr. Pearce, and consulted with Dr. Pearce, as well as Dr. Wright. The detailed report by Dr. Iosif included all of the following:

• Dr. Iosif indicated that information from the police indicated that the family and community members described the accused positively as a “good man,” who “took care of his grandchildren.” His wife could not believe he was implicated in the offence. The accused’s family denied any history of violence or mental health problems. Dr. Iosif concluded that the accused had, for seven decades, led a “simple life, exemplary in its pro-social attitudes and values. He had no “history of antisocial behavior, violence or substance abuse.”
• Dr. Iosif indicated that the police had advised him that the accused had indicated that he had killed the deceased because “she was telling others that he had certain illnesses” and he was “upset” and “struck her twice.” The accused also advised the police that “life was unexpected” and that the deceased tended to “speak negatively and in an unlucky way.” He admitted striking the deceased with a metal bar.
• Dr. Iosif reiterated that, in his discussions with Dr. Pearce, the accused said that his actions were not under his control, but that he was “being controlled by a ghost.” He was “pushed by somebody” to hurt the deceased. The accused could not recall his conversation with the deceased, but he denied that she had upset him. The accused indicated that he just wandered around the city afterwards, being confused. He thought that people were following him and staring at him.
• Dr. Iosif indicated that, in his own interviews with the accused, Mr. Chen was “laughing and giggling to himself,” explaining that “laughing is better than crying.” When cognitive testing was attempted, the accused was “very concrete in his thinking” and had difficulty with “abstract concepts or metaphorical meanings.” The accused impressed Dr. Iosif as being “exceedingly slowed down in his cognition.” Dr. Iosif indicated that, at times, the accused “appeared to be deliberately somewhat vague and circular in logic.”
• Dr. Iosif noted that the accused has “no prior psychiatric history,” and that the accused was “vague in his description of his psychiatric issues.” The accused denied having any “auditory hallucinations.” However, the accused described having seen “ghosts” that were “bad luck” on two earlier occasions. The accused thought that the ghost likely affected his thoughts “because of what [he] did” and because he did not know why he “did that.” The accused denied “feeling paranoid” and having any “mood,” “anger” or “temper” issues.
• Dr. Iosif indicated that, in talking about the offence in her interview with the accused, Mr. Chen told her that “the ghost occupied [his] body and [his] thinking was all messed up and [he] hit somebody.” The accused said that he felt like someone “instructed” him to do it, and that his “brain was controlled by the ghost” to do what the ghost wanted him to do. The accused also indicated that the deceased had “used some evil language” in talking to him, in that the accused understood from what the deceased said that he was “going to die shortly.” Later, the accused denied knowing why he hit the deceased, although he admitted that he used the “steel bar on his bicycle to attack her.” However, he could not recall how many times he struck the deceased with the steel bar. The accused added that he could not ride his bicycle afterwards, so he took the bus to see his medical doctor for his “coughing.” The accused indicated that, later, he did not go home, but rather walked the streets of Toronto the whole night.
• Dr. Iosif indicated that when she asked the accused about his relationship with the deceased, the accused said that they were “good friends” and would get together with each other “every day.” He denied ever having previously thought of the deceased as “evil.” He thought that the deceased was a “good person” and they used to have coffee together. However, she sometimes spoke of “negative things.” The accused maintained that he did not care about the negative conversation – it was that he was “confused, the ghost got into [him].”
• Dr. Iosif indicated that “diagnostic imaging” of the accused revealed that he had a “venous anomaly” in the “left cerebellar hemisphere,” with “mild microangiopathic changes.” A “neurological consultation” indicated that the accused had a “severe issue with regard to his memory.”
• Dr. Iosif reiterated the details of the clinical findings and conclusions regarding the psychological testing conducted by Dr. Wright.
• With respect to her diagnosis of the accused, Dr. Iosif stated that, although it was an unusual diagnosis, all factors point to Mr. Chen likely suffering from late onset schizophrenia. Dr. Iosif noted that it was not until about ten years ago that the accused began developing psychotic symptoms, as reported by his family – talking to himself, hearing voices, seeing “ghosts” and believing that he was being pursued. Dr. Iosif indicated that the accused seemed “significantly cognitively compromised,” but that “psychological testing unequivocally determined that Mr. Chen is malingering the extent of his cognitive impairment,” and that his “current portrayal of cognitive impairment is incongruent with his independent function in hospital and in the community.” Dr. Iosif concluded that the “malingering of cognitive impairment casts a serious doubt on Mr. Chen’s reliability as a historian” and also about “the way he has been presenting himself to others up to this point.”
• As to the issue of the accused’s criminal responsibility, Dr. Iosif concluded that the accused was “capable of appreciating the nature and quality of his actions,” as he told the police that he had killed the deceased by striking her with a metal bar, even though there is “no convincing explanation for Mr. Chen’s motivation in committing the crime.” Dr. Iosif noted that the accused only started to talk about ghosts controlling him after he was admitted to the Ontario Shores psychiatric facility. Dr. Iosif noted that it was “fairly clear” by the end of the assessment that the accused “knew he had killed the victim.” However, his motivations and the condition of his mind at the time “remain a mystery,” even accepting “the presence of psychosis at the material time.”
• Dr. Iosif concluded that “enough factors remain equivocal” such that she cannot, from a psychiatric perspective, “gather enough evidence to displace the presumption of criminal responsibility” and, as such, she concluded that a verdict of “not criminally responsible on account of mental disorder” is “not supported” for the accused from a psychiatric perspective on the balance of probabilities.

[9] Finally, on April 10, 2019, Dr. Mark Pearce provided a brief, updated, supplementary report, in light of the “new information only recently made available” to him. In this regard, Dr. Pearce noted that he was only provided with the reports by Dr. Iosif and Dr. Wright, by defence counsel, on March 25, 2019, the very day this trial started. Dr. Pearce indicated that, after reviewing those reports, he spoke personally with Dr. Wright and consulted with another forensic psychiatrist at the Ontario Shores facility. More particularly, this supplementary report by Dr. Pearce included all of the following:

• Dr. Pearce noted that the accused continues with his prescribed medication at the Ontario Shores facility, although he has recently been occasionally found to be “cheeking” his medication – holding his tablets of medication hidden under his tongue, and not swallowing them, but trying to demonstrate to the facility staff that he had consumed his prescribed medication.
• Dr. Pearce indicated that it remained his opinion that the accused suffers from “late-onset schizophrenia.”
• Dr. Pearce acknowledged that Dr. Wright’s conclusions about “Mr. Chen malingering memory impairment are important,” and indicated that he was concerned about the accused’s “attempt to deceive Dr. Wright.” Dr. Pearce also indicated that the accused’s efforts to “cheek” his medication were also of concern to him as these attempts were “at least somewhat sophisticated.”
• In his assessment of the accused’s criminal responsibility, Dr. Pearce indicated that, at this juncture and taking into account the recently provided information, he was “in agreement with Dr. Iosif that it is hard to conclude on balance that [Mr. Chen] is not criminally responsible” for the offence. Dr. Pearce noted that his “prior conclusion” that the accused was not criminally responsible was “based largely on his self-report” which Dr. Pearce now has “reason to doubt.” Dr. Pearce indicated that while “untreated psychosis possibly played a significant factor, there’s little objective evidence confirming same.” The accused’s “malingering memory impairment” is also a “cause for concern.” Dr. Pearce concluded, therefore, that while there is “certainly some chance” that the accused is “not criminally responsible for the alleged offence,” he was now “having trouble reaching that conclusion on balance.”

D. The Background – The Progress of the Bifurcated Trial

[10] Up to the point when Dr. Pearce provided his supplementary report (i.e. April 10, 2019), the trial of the accused had been proceeding as a bifurcated trial. But for one passing question, defence counsel had not raised any suggestion before the jury as to whether the accused may have been suffering from any type of mental disorder at the time of the killing. Rather, defence counsel, throughout their cross-examinations of the various Crown witnesses, had only suggested that the accused was simply not the person who killed the deceased or, alternatively, if he had, the attack had been so spontaneously that the accused lacked the required mental element for the offence of second-degree murder. It was contemplated by the parties, however, that if the jury found the accused guilty of either second-degree murder or manslaughter, defence counsel may elect to lead further evidence, during the second stage of the trial, and ultimately ask the jury to conclude that the accused was not criminally responsible by reason of mental disorder for the offence of which the accused was found guilty.

[11] The ability to conduct such a bifurcated trial was, of course, recognized by the Supreme Court of Canada in R. v. Swain, [1991] 1 S.C.R. 933, 63 C.C.C. (3d) 481. In that decision, Lamer C.J.C., delivering the judgment of the majority of the court, concluded, at pp. 986-988, that the accused has the right to control the conduct of his or her own defence, which means that he or she may elect to: (1) raise the defence of mental disorder only after the trier of fact has concluded that the Crown has established the actus reus and mens rea of the alleged offence; or (2) assert at any point during the trial evidence of mental disorder or impairment that might impact on whether the accused had the necessary mens rea for the alleged offence, or lead to a verdict that the accused is not criminally responsible for the commission of the alleged offence on account of mental disorder.

[12] One of the strategic consequences of the accused choosing to have a bifurcated trial, however, is that if the accused is found guilty of the alleged offence at the conclusion of the first stage of the trial, the jury does not revisit that conclusion during the second stage of the trial, but rather determines only whether or not the accused is criminally responsible for that offence. This is true even if the additional evidence that is led during the second stage of the trial in support of the defence of “mental disorder” might have been relevant to the question of whether the accused had the necessary mens rea of the offence of which the accused was found guilty.

[13] For example, in a case where the accused is charged with second-degree murder, evidence of mental disorder short of establishing the defence provided by s. 16 of the Criminal Code, may be relevant to the question of whether the accused had the necessary mental element for the alleged offence. But, if the accused elects to have a bifurcated trial, choosing not to adduce that evidence of mental disorder during the first stage, and the jury finds the accused guilty of that offence, the accused has, by his or her own election, deprived the jury of the opportunity of considering the evidence on that issue. In such circumstances, the second stage of a bifurcated trial would be to determine simply whether or not the accused was criminally responsible for the offence of second-degree murder that the jury has already concluded he or she committed.

[14] The authorities are uniform their support of this conclusion. See R. v. Brown, 2006 BCSC 1581, 214 C.C.C. (3d) 151, at paras. 24-25; R. v. Mehl, 2017 BCSC 1769, 142 W.C.B. (2d) 353, at paras. 9-11; E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (Loose-Leaf, 2nd ed., 2013), vol. 3, at § 22:1043, at p. 22-19; G.A. Ferguson and M.R. Dambrot, Crimji – Canadian Criminal Jury Instructions (Loose-Leaf, 2005), vol. 2, at § 8.32, at p. 8.32-2; D. Watt, Watt’s Manual of Criminal Jury Instructions (2nd ed., 2015), at pp. 1219-1222. As Powers J. aptly noted in R. v. Brown, at paras. 24-25, in drawing conclusions with which I agree:

I find that the correct interpretation of Warsing and Swain lead to the conclusion that an accused has an option to elect when to submit evidence of the defence of NCRMD. That is either during the trial itself or after a verdict. This does not, however, entitle an accused to split their case and reargue the issue of mens rea if they elect to await the verdict before submitting evidence of NCRMD. Neither trial fairness nor justice requires such an advantageous interpretation. A defence of NCRMD has been given special treatment by Swain, and allows the accused to withhold the argument on the defence of NCRMD until after the Crown has proven its case beyond a reasonable doubt. This, however, does not require that the accused be given an opportunity to have essentially a second trial on the issue of mens rea. There are many instances where inconsistent defences are presented by the defence with regard to the actus reus and mens rea. The accused, with the assistance of counsel, must often make decisions about what defences to pursue, what evidence to give, and whether or not the accused will give evidence themselves. Where the accused wishes to lead evidence with regard to mens rea in general, they can do so during the main part of the trial, knowing that if that evidence raises the issue of mental capacity, then they may no longer have the benefit of reserving the issue of NCRMD until after trial, if the Crown decides to pursue it during the trial itself. However, this does not require an interpretation of the common law rule spelled out in Swain in such a manner that the accused can split his case with regard to the issue of mens rea in general.

I find that if the accused elects to await a verdict before leading evidence on the issue of NCRMD in the case before me, and then leads that evidence post-verdict, that the accused is not entitled to have the issue of whether the Crown has proven mens rea beyond a reasonable doubt revisited. The accused is only entitled to a decision as to whether or not they have met the onus placed on them of proving the defence of NCRMD.

[15] Importantly, at the time that Dr. Pearce changed his expert opinion as to the availability of the mental disorder defence in this case, the trial had not proceeded to the point where any evidence might have been introduced on the topic of mental disorder. The jury had heard only from civilian witnesses, some of whom found and tried to resuscitate the deceased, some police investigators, fingerprint and DNA evidence tying the accused to the killing as the perpetrator, and a forensic pathologist, who described how the deceased had died and who detailed the injuries that she suffered. None of these witnesses could reasonably have been expected to possess any potential knowledge of the mental condition of the accused at the time of the killing, or whether he suffered from any type of mental disorder at the time.

[16] As I have indicated only one witness was cross-examined on this topic. One of the civilian witnesses was Mr. Wan Peng Mei, the adult son of the deceased, who worked with his father and the accused for many years before the accused retired, and who was well-familiar with the accused, even after they stopped working together. In cross-examination, defence counsel suggested to Mr. Mei that, around October 15, 2014, he did not know the “mental state” of the accused, in terms of whether or not he was “suffering from any mental illnesses,” and Mr. Mei agreed. However, Mr. Mei observed that, all along, when the accused was working, he was “very healthy.” Mr. Mei aptly explained that only the accused knows what his “state of health” was on October 15, 2014, but before that his health was “very good.” This brief line of cross-examination did not, in any positive way, advance any evidence that the accused suffered from a mental disorder at the time of the alleged offence.

[17] Defence counsel said that the supplementary report of Dr. Pearce on April 10, 2019, in which Dr. Pearce indicated that he could no longer support the conclusion that, on balance, the accused was “not criminally responsible” for his killing of the deceased, came as a “surprise” to them. Accordingly, pursuant to their request, they were granted an adjournment of the trial, so as to allow them time to consult personally with Dr. Pearce, and with the accused (with the assistance of an interpreter), and to further consider their position. Following this adjournment, defence counsel brought this mistrial application.

E. Analysis

1. Introduction

[18] Defence counsel argued that a mistrial should be declared in this case in order to permit them to make inquiries to see if they could find another expert psychiatrist that might, after reviewing all of the various relevant materials collected in this matter and personally assessing the accused, support the proposed mental disorder defence. Dr. Pearce had personally confirmed, in his most recent discussions with defence counsel, when the matter was briefly adjourned, that he could no longer provide expert evidentiary support for the availability of this defence. Defence counsel candidly conceded, however, that they had no idea if another psychiatrist could ever be found to support the defence. Further, defence counsel noted that before any attempts to try to locate another psychiatrist could be attempted, the necessary financial approval would have to be sought and obtained from Legal Aid Ontario. Defence counsel did not know if such approval would be granted. In other words, defence counsel wanted a mistrial to be declared to permit them to try to secure Legal Aid Ontario funding for another psychiatrist, and to try to find another psychiatrist to support the proposed mental disorder defence.

[19] Significantly, defence counsel agreed that if a mistrial was declared, and a new trial was commenced, perhaps six months or a year from now, we might well all find ourselves in precisely the same position as we are right now – without the evidence of another psychiatrist, but with the Crown having to call its evidence in this case all over again.

[20] Mistrials cannot be declared on such a speculative basis, especially in circumstances where the accused has not yet been prejudiced in any way, and the mistrial request is based not on any action or conduct by the Crown, but rather is simply because an anticipated expert defence witness appears to have changed their opinion about the case when provided with additional relevant information. In my view, it would be inappropriate to declare a mistrial at this stage of the trial proceedings. This is simply not one of the “clearest of cases” where a mistrial must be declared in order to “prevent a miscarriage of justice.”

2. Witnesses Sometimes Change Their Evidence – Experts Too

[21] There is no gainsaying the reality that witnesses in criminal trials often testify in ways that are unanticipated by the parties. They will frequently provide testimony that, in one way or another, is inconsistent with: (1) an earlier oral or written statement provided to police investigators; (2) their testimony at the preliminary inquiry; and/or (3) their testimony in other related civil or criminal proceedings. Sometimes such inconsistencies are slight, but sometimes they fundamentally change the nature of their testimony. Sometimes these inconsistencies are the result of fading or improving memories over time. Sometimes they are clearly the result of deliberate lies. Whatever their cause, the fact of the matter is that such unanticipated testimony is a common feature of many criminal trials. Indeed, there are a host of statutory and common law rules designed to address the admissibility and significance of such evidence, and how such witnesses can be examined and cross-examined by the parties.

[22] Given this undeniable reality in criminal trials, it is difficult to imagine circumstances where it would be necessary to declare a mistrial simply because a witness gave advance notice to the lawyer who was planning on calling them, that they were going to, in fact, give unanticipated testimony at variance with some earlier indication of what their testimony might be.

[23] While it is more uncommon for expert witnesses to change their opinion about the topic of their testimony, such changes cannot be so unanticipated that, when they happen, they must be seen as causing irreparable damage to the fairness of the trial proceedings so as to result in the declaration of a mistrial. It is critical to recall in this regard that expert witnesses have a duty to the court, with three basic components: (1) expert witnesses must be impartial in that they must provide an objective assessment of the relevant issues; (2) expert witnesses must be independent in that their expert opinions must be the product of their own judgment, uninfluenced by the party who has retained them or the outcome of the litigation; and (3) expert witnesses must be unbiased, in that experts must not unfairly favour the position of one party over the other. An expert who is unable or unwilling to fulfill this three-pronged duty to the court is not properly qualified to give expert opinion evidence. See White Burgess Langille Inman v. Abbott and Haliburton Co, 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 26-40, 45-54; R. v. Soni, 2016 ABCA 231, 339 C.C.C. (3d) 294, at paras. 12-23; R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at paras. 64-67; R. v. Abbey, 2017 ONCA 640, 350 C.C.C. (3d) 102, at paras. 48, 55, 109; R. v. Natsis, 2018 ONCA 425, 361 C.C.C. (3d) 26, at paras. 9-11; R. v. Johnson, 2019 ONCA 145, 153 W.C.B. (2d) 581, at paras. 50-59.

[24] Given this paramount duty to the court, counsel must anticipate that, to the extent that an expert witness may be subsequently provided or confronted with additional relevant facts and conflicting expert opinions on the topic of their testimony, there is always the possibility that their retained expert witness may revise or alter their expert opinions to impartially, independently, and in a fair and unbiased way, consider and account for such facts and conflicting opinions. Expert witness can hardly be expected to fulfill their fundamental duty to the court by simply ignoring additional relevant considerations, including any conflicting expert opinions.

[25] Experts cannot properly be retained only to provide a particular expert opinion, which may suit the personal interests of a particular party, based only upon a carefully selected and limited factual premise, while being effectively kept isolated from other conflicting expert opinions on the same topic. Accordingly, to the extent that counsel fail to provide a retained expert witness with any additional relevant facts or subsequently available conflicting expert opinions, they run the obvious risk that, when that expert witness is eventually confronted with such relevant facts and conflicting opinions, as seems inevitable in adversarial criminal proceedings, the expert witness will, in fulfilling their important duty to the court, revise or alter their own opinion. Wise counsel will, therefore, typically ensure that the expert witness they have retained is possessed of all of the relevant facts, and is provided with any and all conflicting expert opinions, well in advance of trial so that they will be aware of the nature and details of the opinion that their retained expert witness will be able to provide to the court, and so that the expert witness will not be taken by surprise when confronted with such facts and conflicting opinions for the first time in cross-examination.

[26] In the present case, however, defence counsel did not provide Dr. Pearce with the reports from Dr. Iosif and Dr. Wright in December of 2018, when the reports were prepared and disclosed. These reports were clearly relevant and important to the issue of whether or not the accused was “not criminally responsible on account of mental disorder” for the killing of the deceased. Recall that, in his report, Dr. Wright concluded that the results of his psychological testing of the accused “clearly indicated” that the accused was “malingering cognitive impairment” in a likely attempt to “prevent fulsome analysis of his thought processes.” Recall as well that, in her report, Dr. Iosif, a forensic psychiatrist and colleague of Dr. Pearce at the Centre for Addiction and Mental Health (CAMH), placed significant reliance on this clear evidence of malingering by the accused in concluding that, in her opinion, the accused was capable of appreciating the nature and quality of his actions in killing the deceased and knowing that his actions were morally wrong. Recall too that, in his initial report, Dr. Pearce noted that, one of the important “limitations” regarding his opinion was that he had not been able to arrange for any “psychological testing” for the accused. Nevertheless, it was not until late March of 2019, at the outset of this trial, that defence counsel finally provided these reports to Dr. Pearce (when they were requested by Dr. Pearce himself). Defence counsel can hardly complain about the timing of the change of opinion by Dr. Pearce, when it was defence counsel who kept the expert reports of Dr. Wright and Dr. Iosif to themselves for some three months prior to the request by Dr. Pearce.

3. The Timing of the New Report Caused No Prejudice to the Accused

[27] Fortunately, the timing of the supplementary report by Dr. Pearce (April 10, 2019) did not cause any actual prejudice to the accused, or unfairness in the trial proceedings. Up to that point in time the trial had been proceeding, in accordance with the election of the accused as to how to best control his own defence, as a bifurcated trial. The Crown had been put to the task of trying to establish, beyond a reasonable doubt, that the accused was guilty of second-degree murder in the October 15, 2014 killing of the deceased. As I have indicated, it was anticipated that, if the jury found the accused guilty of either second-degree murder or manslaughter, the defence would likely then seek to establish, on a balance of probabilities, that the accused was not criminally responsible for that offence by reason of mental disorder.

[28] Nevertheless, by the time that defence counsel learned that Dr. Pearce had changed his expert opinion about the viability of the defence provided under s. 16 of the Criminal Code, nothing had yet happened during the trial that prevented defence counsel (and the accused) from altering the course of their defence if they wished. Defence counsel was still perfectly situated to either: (1) continue with a bifurcated trial as originally planned, raising the “mental disorder” defence only if the accused was found guilty of an offence by the jury; or (2) change strategic course and decide to simply have a one-stage trial, and lead the “mental disorder” evidence in furtherance of both (a) the defence under s. 16 of the Criminal Code; and (b) to potentially negate the mens rea necessary for the offence of second-degree murder. Either option was still fully available to the accused. The accused had not yet elected as to whether to call evidence in the trial, and no step had been taken that would have prevented, or even compromised, the defence ability to make that election.

[29] If defence counsel thought that they could convince the members of the jury that they should be satisfied, on a balance of probabilities, that the elements of the defence under s. 16 of the Criminal Code could be made out, notwithstanding the changed opinion of Dr. Pearce, they could continue to lead his evidence in support of that defence (in either a one-stage or two-stage trial). After all, Dr. Pearce remained of the opinion that the accused suffered from late-onset schizophrenia and Dr. Pearce still thought that the accused’s “untreated psychosis possibly played a significant factor” in his killing of the deceased, and that there was “certainly some chance” that the accused was “not criminally responsible for the alleged offence.” Dr. Pearce was simply no longer able to conclude that he was convinced of this on a balance of probabilities. But, ultimately, it is for the trier of fact (i.e. in this case the jury) to determine whether they are satisfied, on a balance of probabilities, that the mental disorder defence has been established – they are not bound to accept the opinion of any expert on that issue, even if that expert opinion is uncontradicted. The expressed opinions of an expert witness do not usurp the fact-finding function of the jury. See R. v. Kirkby (1985), 21 C.C.C. (3d) 31, 47 C.R. (3d) 97 (Ont.C.A.), at p. 50, leave denied, [1986] 2 S.C.R. vii; R. v. Lavallee, [1990] 1 S.C.R. 852, 55 C.C.C. (3d) 97, at pp. 870-873, 889, 891; R. v. Mohan, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, at pp. 23-25; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, 148 C.C.C. (3d) 41, at paras. 48-57; R. v. Moke (1917), 12 Alta.L.R. 18, 28 C.C.C. 296 (C.A.), at pp. 298, 300.

[30] That is especially so where the expert, in changing his opinion, has relied upon information that is never properly established in the evidence. Juries are commonly instructed that the greater the reliance that an expert witness places on information, such as hearsay statements, which are not ultimately properly established in evidence, the less weight the jury may assign to their expert opinions. See R. v. Abbey, [1982] 2 S.C.R. 24, 68 C.C.C. (2d) 394, at pp. 42-46; R. v. Kirkby, at p. 56; R. v. Lavallee, at p. 897; R. v. Scardino (1991), 46 O.A.C. 209, 6 C.R. (4th) 146; R. v. D.D., at paras. 48-49; R. v. Collins (2001), 160 C.C.C. (3d) 85, 150 O.AC. 220, at para. 46.

[31] For example, in the present case Dr. Pearce acknowledged in his supplementary report that Dr. Wright’s conclusion, based upon his psychological testing, that the accused was “malingering memory impairment,” is an “important” consideration which was a “cause for concern.” This was clearly one of the main factors that caused Dr. Pearce to change his opinion. It was perfectly appropriate for Dr. Pearce to rely upon the results of that psychological testing in reaching his own expert opinion in this case. It was also entirely appropriate for Dr. Pearce to advise the jury that it was an important factor that he took into account in reaching his conclusion. That said, any proposed expert testimony from Dr. Wright, that his psychological testing of the accused clearly revealed that the accused was “malingering memory impairment,” would simply not be independently, substantively admissible evidence before the jury. See R. v. Phillion, [1978] 1 S.C.R. 18, 33 C.C.C. (2d) 535, at pp. 22-28; R. v. Kostuck (1986), 43 Man.R. (2d) 84; 29 C.C.C. (3d) 190 (C.A.); R. v. Béland, [1987] 2 S.C.R. 398, 36 C.C.C. (3d) 481, at pp. 414-419; R. v. J.(F.E.) (1990), 53 C.C.C. (3d) 64, 74 C.R. (3d) 269 (Ont.C.A.), at pp. 68-72; R. v. Marquard, [1993] 4 S.C.R. 223, 85 C.C.C. (3d) 193, at pp. 247-248; R. v. Burns, [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193, at pp. 665-666; R. v. Sullivan (1995), 96 C.C.C. (3d) 135, 37 C.R. (4th) 333 (B.C.C.A.), at paras. 66-74; R. v. McClenaghan, 2008 ABCA 7, 437 A.R. 247, at paras. 90-102, 109-110, 182-184, 186-188, leave denied, [2008] S.C.C.A. No. 226; R. c. Bresaw, 2017 QCCA 1255, 41 C.R. (7th) 255, at paras. 7-14. Accordingly, defence counsel in the present case could, quite conceivably, point to that difference, between what Dr. Pearce and the jury are entitled to take into account, in urging the jury to reach a different conclusion than Dr. Pearce as to whether the defence had established, on a balance of probabilities, that the accused was not criminally responsible for any offence he committed in connection with the killing of the deceased.

[32] On the other hand, if defence counsel were not confident that they could convince the jury that they had established the elements of the defence under s. 16 of the Criminal Code on a balance of probabilities, they could change their trial strategy, and decide to lead the expert opinion evidence of Dr. Pearce immediately, in a one-stage trial, in hopes of either: (a) convincing the jury that they had established that the accused suffered from a “mental disorder” within the scope of the defence statutorily provided in s. 16 of the Criminal Code; or (b) raising at least a reasonable doubt as to whether the accused had the necessary mental element for the crime of second-degree murder, so as to potentially reduce the liability of the accused to manslaughter.

[33] In other words, at the time that defence counsel was advised of the changed expert opinion of Dr. Pearce, defence counsel were in exactly the same tactical position that they were in at the very outset of the trial proceedings in this case – they had to determine, with the instructions of the accused, whether and when to call Dr. Pearce as a witness in this case. Further, they were given all the time that they requested to consult with Dr. Pearce and the accused before having to make that decision. The mere fact that Dr. Pearce had changed his expert opinion since the beginning of the trial did not change the nature of the strategic decisions that needed to be made. All that changed was the substance of the opinion that Dr. Pearce was prepared to provide to the court. As I have sought to explain, the mere fact that a witness – even a potentially important expert witness – has changed their anticipated evidence cannot properly result in the declaration of a mistrial, when that altered evidence has not resulted in any prejudice to the accused or any unfairness in the trial proceedings.

[34] I note in passing in this regard that, if the reports of Dr. Wright and Dr. Iosif had not been provided to Dr. Pearce before he entered the witness box, and he learned of the results of the additional psychological testing performed by Dr. Wright only in cross-examination by the Crown, he might well have changed his opinion (just as he did) about the viability of the defence of “not criminally responsible by reason of mental disorder” in the witness box. Such a turn of evidentiary events during the trial could not, however, have provided a proper legal basis for a defence request for a mistrial. If such a dramatic potential scenario could not properly lead to the declaration of a mistrial, then it is difficult to see how the circumstances of this case, where the accused and defence counsel were given advance notice of such a changed evidentiary landscape, could properly result in the declaration of a mistrial.

4. The Case Already Has a Long History – This is the Third Trial Date

[35] There is another factor that should also be given at least some passing consideration. This case already has a long history. The deceased was killed on October 15, 2014. Following the conclusion of the preliminary inquiry, the accused appeared in this court on April 20, 2016. Thereafter, this case has been plagued by defence-related delays. When this trial started on March 25, 2019, it was the third trial date that had been scheduled in this matter. Earlier trial dates, that had been scheduled for November 15, 2017, and September 10, 2018, were adjourned at the request of the defence in pursuit, one way or another, of evidence in support of the proposed “mental disorder” defence.

[36] The declaration of a mistrial, to now permit defence counsel to try to secure Legal Aid Ontario approval for funding for another potential psychiatrist, and then to try to find another psychiatrist to support the proposed “mental disorder” defence, would likely add many long months of further delay to this case, with nothing close to a guarantee of any change in our current evidentiary landscape – but for the fact that the Crown would have to again call all of the evidence in its case against the accused.

[37] In my opinion the defence in this case has already had an abundance of time to try to obtain evidence in support of the defence of “mental disorder” pursuant to s. 16 of the Criminal Code. It would be, in my view, inappropriate to now declare a mistrial, at the end of the Crown’s case, based on nothing more than the sheer optimism of defence counsel that they will eventually, somehow be able to find a forensic psychiatrist who will disagree with the experts found by the parties to-date (assuming that such a search would be financially authorized by Legal Aid Ontario).

F. Conclusion

[38] In the result, as I have earlier advised the parties, the application brought on behalf of the accused for the declaration of a mistrial must be dismissed.

Kenneth L. Campbell J.

Released: May 21, 2019