COURT FILE NO.: CR-16-1840 and CR-16-1831

DATE: 2019 07 12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

N.J. Bridge and K. Holmes for the Crown

• and -

RICHARD PEREIRA

S. Hebscher and D. Shulman, for Richard Pereira

HEARD: March 25, 26, 27, 28, 29, 2019, April 1, 2, 3, 4, 9, 10, 11, 12, 15, 16, 17, 18, 23, 24, 25, 26, 29, 30, 2019, May 2, 3, 2019

REASONS FOR JUDGMENT

D.E. HARRIS J.

[1] The accused Richard Pereira is charged with the first-degree murder of Kathryn Horne committed March 28, 2015. The evidence left no doubt, and the defence conceded,that Mr. Pereira killed Ms. Horne. The primary issue at trial was whether Mr. Pereira was not criminally responsible for the killing within the meaning of Section 16 of the Criminal Code R.S.C., c. C-34, s.1

[2] These reasons will address three main issues which arise from Section 16(1). Was Mr. Pereira suffering from a “mental disorder” as defined by the Criminal Code at the time of the homicide?; 2. If so, did Mr. Pereira kill Ms. Horne at least in part due to the mental disorder and delusions he was labouring under? And, 3. If 1. and 2. are satisfied, did the mental disorder and the delusions render Mr. Pereira, as stated in Section 16(1), “incapable of knowing that the killing was [morally] wrong?” It is the two latter questions upon which the decision in this trial revolves.

Introduction

[3] This was a sad, tragic case. Mr. Pereira stabbed Ms. Horne to death in the bathroom basement of his home in Brampton. No one, least of all Ms. Horne, believed that Richard Pereira was capable of such terrible violence. However, he had a long history of mental illness.

[4] At the time of her death, Ms. Horne was 58 years old. Mr. Pereira was considerably younger. He was 36. Kathryn Horne and Richard Pereira met at the Goodlife Gym near Union Station in Toronto. He was a personal trainer and she worked out there. She had a well-paying job at a major financial corporation in downtown Toronto.

[5] He began training her and they became friends. Sometime in 2014, they became intimate. At the beginning of their relationship, both lived in Toronto. In 2014, Richard Pereira bought a house in Brampton and moved there. His mother, Isabel Pereira, lived there with him. His brother, Andrew Pereira, lived in the house for a short period of time as well.

[6] On the day of the homicide, March 28, 2015, at just after 3:30 pm. we know that Ms. Horne travelled to Brampton by GO Bus from Union Station in Toronto to meet with Mr. Pereira at his home. She walked from a bus stop to Mr. Pereira’s home at 51 Nanwood Drive, Brampton, likely arriving around 5:00 p.m.

[7] Little detail is known with any certainty about what happened in the home the night of the homicide. At 9:26 p.m., Mr. Pereira called the Canadian Mental Health Association (CMHA) crisis line on the landline from his home. He had been given the number several days before upon being released on bail from a public mischief charge. He expressed anxiety and stress to the operator and was given breathing exercises to calm him. His mother took the phone and said that she was taking him to the hospital.

[8] As recounted in the judgment on the directed verdict application (R. v. Pereira, 2019 ONSC 2703), at about 12:37 a.m. on the same night, now March 29, 2015, Mr. Pereira’s mother made a 911 call from her home requesting an ambulance. The police arrived first, and they found Mr. Pereira sitting on the couch with his head in his hands. He said he needed to die; he was cursed by black magic. People were putting black magic on him and they were trying to kill him. The police were of the view that he was a risk to himself and handcuffed him in order to begin the process of civil committal under the Mental Health Act. Before being led away, he told the police that they should look in the basement. He said he had done something bad.

[9] Mr. Pereira’s mother Isabel and two police officers ventured into the basement. On the main floor, Mr. Pereira turned to one of the other officers and told him that he had killed someone. She was in the bathroom; he did not want his mother to see. He would go to jail forever.

[10] Ms. Pereira opened the door from the basement bathroom to the cold cellar adjoining it. She screamed. The body of Kathryn Horne lay there. The pathology evidence showed that she had been stabbed 34 times. Two of the stab wounds were to the neck, including one to the jugular vein. These wounds caused death by loss of blood and the jugular vein injury caused an air embolism. The other 32 stab wounds were to the torso.

[11] As well, there were 23 incised wounds to the neck, hands, forearms and front of the torso. Some of these were defensive wounds. There was a scarf around her neck. Part of it was in her mouth. Forensic evidence determined that Ms. Horne had been killed in the basement bathroom and then had been moved the few feet into the small cellar room adjoining it. There was a significant amount of trace blood, not visible to the naked eye. Efforts had been made to wipe up the blood.

SECTION 16

[12] 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.

[13] “Mental disorder” is defined in Section 2 of the Code to mean “disease of the mind.”

I. HAS THE DEFENCE PROVED THAT AT THE TIME OF THE HOMICIDE, MR. PEREIRA WAS SUFFERING FROM A “DISEASE OF THE MIND”?

[14] “Disease of the mind” has a very broad, liberal definition. It is “any illness, disorder or abnormal condition which impairs the human mind and its functioning” excluding self-induced states: Cooper v. R. 1979 CanLII 63 (SCC), 1979 CarswellOnt 60, 1979 CarswellOnt 74, [1980] 1 S.C.R. 1149 at para. 51 (Carswell) per Dickson J.; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575 at paras. 59-62 per Lebel J.

[15] “Disease of the mind” is a legal concept, not a medical one. Psychiatrists are permitted to opine on the legal issue, but their evidence is not required and may be of little, if any, weight: Cooper, paras. 47-48. Expert medical evidence can however be invaluable in assisting the finder of fact in determining the issue.

[16] “Disease of the mind” is easily satisfied in this case. The Crown, with a minor caveat, conceded it. Indeed the evidence was undeniable. Mr. Pereira has a lengthy, albeit intermittent, history of bouts of paranoid and persecutory psychosis. By psychosis what is meant is delusions; perceiving something that, objectively, does not exist.

[17] Mr. Pereira’s psychosis increased markedly in the six months before the homicide. On the day of the offence, several defence witnesses attested to pervasive symptoms of paranoid psychosis. Their evidence was unchallengeable.

[18] There was significant controversy in the trial evidence between the defence and Crown medical experts with respect to the correct diagnosis of Mr. Pereira’s mental illness. Dr. Julian Gojer, a psychiatrist, and Dr. Milan Pomichalek, a psychologist, both testifying for the defence, believe that Mr. Pereira suffers from schizophrenia. For the Crown, psychiatrist Dr. A. Iosif and psychologist Dr. Robert Wright disagreed and were of the opinion that Mr. Pereira instead has traits of borderline personality disorder.

[19] It is unnecessary to settle this disagreement. The question admits of very significant difficulty. A thorough study of the psychiatric diagnostic manual, the DSM V, and the trial evidence would be necessary. Even then, there would be no assurance that a medical diagnosis by a judge would be reliable or correct.

[20] Fortunately, the law makes settling the matter unnecessary. The legal concept of disease of the mind, although closely allied with the medical one, is more general and is concentrated on the effect of the disorder on Mr. Pereira. Schizophrenia is obviously a disease of the mind. But personality disorders can also constitute a disease of the mind: Cooper, para. 49. In this case, in the final result, both sets of experts supported that Mr. Pereira suffered from a disease of the mind, albeit based on different medical diagnoses.

[21] There were extensive medical records pertaining to Mr. Pereira filed at trial and a significant body of testimony from family and friends as well. These are some of the highlights:

• December 13, 2004: Centre Hospitalier Anna-Laberge near Montreal. At the time of admission, Mr. Pereira was 26 years old, having been born in 1978. There was a motion for institutional confinement made by the hospital in which it was said that Mr. Pereira had been diagnosed with paranoid schizophrenia and toxic psychosis. He was a danger to himself and others. It was recorded that he had paranoid and persecutory delusions. Initiating a theme which is traceable virtually to the date of the offence almost 11 years later, he said that his life was in danger because he felt persecuted by his girlfriend. She was playing with his mind. In his testimony he said that from this point on he was fearful of his girlfriend Maya. She had Russian friends who were scary. Also, this is the one time in the evidence that it is documented that he heard voices.

• December 13-30, 2004: Centre Hospitalier Anna-Laberge. After his committal, Mr. Pereira indicated that he had taken the drug ecstasy. He said that he was under surveillance by his girlfriend; she was controlling his thoughts. He walked around with a knife as he was scared to be attacked both by his girlfriend and by the hospital staff. He was suffering from insomnia and disturbed judgment. Again, in a theme that would dog him for years, he said that he felt he was being followed. He was medicated and during his stay, his dose of Zyprexa was increased.

• May 11, 2011: 911 call. Mr. Pereira made repeated calls to 911 requesting an ambulance. People were after him and he had been drugged. He was civilly committed.

• May 18-19, 2011: William Osler Health System. The reason for the visit was “anxiety situational crisis.” There is some indication of substance use. He felt someone put something in his drink and thought people were following him. His mother Isabel was afraid of him. He had a knife in his hand. It was noted that he was on Xanax and Cipralex.

There was some evidence of periodic drug use in the hospital records, but the Crown did not ultimately place any reliance on it. There was no evidence of drug use anytime approaching the date of the homicide.

• October 14, 2014: The initial call with the private investigator. Mr. Pereira hired private investigator Gabriel Mastsipanuk to find out who was following him. Mr. Mastsipanuk recorded the initial phone call. Subsequent phone calls were similar, according to his evidence. Mr. Pereira said that people would follow him for two months and then stop, starting again later. On the Don Valley Parkway, a person was staring at him and pulled out a walkie-talkie. Two years previous, 20 people followed him all over the city. Currently, 20 people were following him at any given time, always different people.

The private investigator reported to Mr. Pereira in late October, that there was no one following Mr. Pereira. Mr. Pereira paid $2500 for the services of the private investigator.

• October 19, 2014-December 26, 2014: Calls to 911 in October, November and December. On October 19, 2014, Mr. Pereira called 911 and stated that a black SUV had passed his house ten times, and that another vehicle was parked in front of his house with two guys “just staring right into my home.” A few minutes later, he called again and said he was “feeling endangered right now because the same car passed by ten times and they are stopped right in my driveway and as soon as I went to the window they just took off really fast.” There were similar calls on October 25, 2014, and November 28, 2014. On December 26, 2014, Mr. Pereira called 911 and stated: “there was people going in my place and I think they are going to break into my house… they are going around, a whole bunch of people.”

• January 2, 2015: 911 call. There was a black car parked in front of his house and it looked like the occupants were coming to rob him. The people “are staring right at my house, they are not moving”; “I think they have a weapon or something, a knife or something else;” they flashed the knife through the window. “I can’t help this, this is too strong it’s overtaking me… people are following me or stalking me ‘cause I think they wanna hurt me or kill me.”

• January 3, 2015: 911 call. Mr. Pereira called 911 and asked for police to attend his residence because there were two men outside, in a car, staring at him. He stated, “I am in danger right now. I think I’m going to get a knife and kill myself.” He advised that he was afraid of what he might do to the next person he saw outside his house. Mr. Pereira said, “a dog can only be cornered for so long before it attacks.” He was committed under a Form 1.

• January 3-7, 2015: William Osler. After committal, Mr. Pereira reported being paranoid. He was feeling depressed and anxious. His appetite was low and he had lost weight. He was not able to go to work. He called the police on the private investigator.

• January 13, 2015: Mr. Pereira called 911 and asked to speak to an officer to file a report about a death threat against him. He told the operator, “I’ve seen some people following me everywhere I’m going.” The operator asked Mr. Pereira to identify who had threatened him. Mr. Pereira stated that it was a man named “Kingsley Osabouhien” that he met at the hospital, and that the man had told him, “You’re going to die.” (A man by that name works as a nurse at Brampton Civic Hospital. A note was found in Mr. Pereira’s residence after the homicide with the nurse’s name on it.) Mr. Pereira stated that, twenty minutes before the phone call, five males were following him. From a neighbour’s house at 57 Nanwood Drive, Mr. Pereira called 911 again before police arrived. He reported that a person had just moved into a basement next door, that the person had made death threats against him, and that “they are after me.” Mr. Pereira stated that the person was “keeping track on me and they got a recording machine that is taping my… it’s an emergency because they just came by with another group of a, a mini-van, with two guys with, uh, it looked like they had a knife or a gun or something… they are around the corner.” The operator stated, “Ok Richard I have to ask, do you have any mental health issues at all?” Mr. Pereira responded: “… it’s not a make- believe story, somebody just moved in a couple of houses next door to me and I… his friends come, they call him, they text him, and it’s to manipulate me and stalk me and scare me … “

Police attended the residence and located Mr. Pereira at a neighbour’s residence. He appeared panicked and was speaking irrationally.

Police apprehended Mr. Pereira pursuant to the Mental Health Act. Police searched Mr. Pereira and located a wrench on his person. Mr. Pereira advised that it was for his protection.

• March 9, 2015: Mr. Pereira was charged with public mischief under Section 140 of the Criminal Code for knowingly making a false complaint to the police. The days events began when Mr. Pereira’s neighbour called 911 and reported that Mr. Pereira had attended her house at 49 Nanwood Drive. He said that someone had broken into his house and wanted to harm him. Two minutes later, the neighbour called 911 again and advised that Mr. Pereira “seems to be in a confused mental state” and was now in front of her house with his dogs, repeatedly knocking on the door, and stating that someone was after him and trying to kill him.

From the neighbour’s house, Mr. Pereira called 911 and told the operator that the phones in his residence were “all off” because “we found a device in there, uh, had an electrician; it’s, uh, uh, like a bomb.” Mr. Pereira explained: “I saw it yesterday: a big, giant blue flash.” Mr. Pereira stated that, in addition to finding the bomb, he found “two bugs; two, uh, wiretapping bugs. So I unplugged that and I have that to show to the officers.” When the police arrived, Mr. Pereira told the police that there was a circular saucer like object with a blue flame that had come out and had burned his finger. No injuries were observed on his hands or fingers. Mr. Pereira was arrested and charged for making a false complaint.

• March 10-16, 2015: Maplehurst Correctional Complex. Mr. Pereira did not get bail on the public mischief until March 16, 2015. The notes from the institution specify that he was paranoid and suffering from depression and anxiety. Eventually, a release plan was completed. There was a requirement to meet with the Canadian Mental Health Association. His worker, Cary Murphy, testified at trial. The two met on March 24, 2015. Mr. Murphy drove him home, but Mr. Pereira did not want to be let out on his street. He implied that he wanted to avoid certain people.[^1]

• March 27, 2015: Mr. Pereira met with the private investigator to again make efforts to identify who was following him. The investigator was to start on March 30, 2015. The fee was $3000 but Mr. Pereira inexplicably offered to pay $40,000, money he did not have.

• Post-arrest: Mr. Pereira was put on anti-psychotic medication in the months after his arrest. His condition improved substantially.

[22] Mr. Pereira’s intense paranoia was also attested to by family members. His brother Andrew testified that when Richard was about 20 years old and he was 10, he remembered Richard saying that he was being followed. He talked at the television. Richard slept with a hunting knife underneath his pillow.

[23] For a short while, Andrew lived with his brother and mother at 51 Nanwood Drive. He owned some ninja swords which, after the homicide, were found under Mr. Pereira’s mattress. Andrew did not know that Mr. Pereira had taken them from his room. After Richard was released on the mischief charge in mid-March 2015, Andrew came over to the house. Richard looked drained, unmotivated, and smaller and thinner.

[24] Richard Pereira said that he had spy equipment because his ex-girlfriend, in league with Russians and Al-Qaeda, was after him. He accused Andrew of trying to kill him, partially because he is part Arabic. He then had second thoughts and retracted the accusation.

[25] Daniel Pereira is Richard’s first cousin, but they were very close, more like brothers than cousins. Daniel testified, like the other family witnesses, to Mr. Pereira’s paranoia going back to his years in Montreal. In early March of 2015, about three weeks before the homicide, there were plans for Daniel to pick up Richard at home and drive him to Daniel’s home in Orangeville to meet his just born baby. Richard said people were after him, people who he owned money to for his home loan. During the drive, Richard insisted he had to go back home. Daniel drove him back and told him he needed help. As Daniel drove back to Orangeville, Richard phoned him three times. The third time, he alleged Daniel was part of a conspiracy against him. Daniel swore on his son’s head that he was not involved.

[26] Salvatore “Sam” Nasso, a friend of the family, was in Mr. Pereira’s house several times in March 2015, helping Luis Pereira, Mr. Pereira’s uncle, renovate the basement. Mr. Pereira would constantly go to the window, saying the Russian mafia was after him. Sam told him he was crazy. Sam testified that Mr. Pereira had lost a lot of weight over the last few months.

[27] One morning, Sam arrived and the drywall under Richard’s bedroom had been ripped out. Mr. Pereira said a woman had told him there was a bomb there. Much like when he was with him before the previous week, Richard seemed to be like a zombie.

[28] On March 23, 2015, Mr. Pereira was constantly looking out the window. He was talking about a woman whom he had been up all night with. She had told him there was a bomb in the house. Nasso said to ignore it. Another day in the same time frame, Mr. Pereira said that she had given him a bomb and he put it on the counter. Nasso looked at it and asked Mr. Pereira whether he was joking. He told him not to listen to the woman. The so-called bomb was newspaper wrapped around some twigs and bound with string. It was entered into evidence at this trial.

[29] Claude Verra was a neighbour on Nanwood Drive. Mr. Pereira talked to him occasionally. Verra testified that Mr. Pereira talked about guys in hoodies on the street. He was afraid of them. On the day of the homicide, at about 12 or 1 p.m., Mr. Pereira was outside his house with his dogs. He was agitated. Mr. Pereira said repeatedly that something was going to happen to him. When Verra said that he needed a vacation, Mr. Pereira pointed up at the sky as though his only vacation would be his own death.

[30] Janet D’Angelo, a family friend, saw Richard three times the week before the homicide. On the day of the homicide, March 28, 2015, Richard called her. He was stressed out and asked her to come over to take his dogs. Richard was contemplating leaving his home and taking his dogs, either settling in Montreal or California. His mother, Isabel, was very upset and was packing to move to Montreal. Ms. D’Angelo was concerned about the dogs, neither of them had been fixed. Richard told her that there was going to be a big explosion which had been predicted by a woman who was a psychic and whom he used to train.

[31] The two went to a veterinarian appointment to have one of the dogs fixed. During that time, Richard felt that he was being watched and was constantly looking over his shoulder. He was shaky. Ms. D’Angelo did not see anyone and told him so. Richard said that unlike his family, he trusted her. When they got back to his house, Richard said that he wanted to do a will. He did not explain why but she thought it had something to do with the bomb in the house. A very simple homemade will was written and Ms. D’Angelo signed it. The will left Mr. Pereira’s mother the house.

[32] Mr. Pereira’s uncle, Luis Pereira, also saw Richard the day of the homicide. He, along with Sam Nasso, were doing the renovations in the basement of Mr. Pereira’s home. When he started in January, Richard told him that he was being followed by Montreal people from his past, including his ex-girlfriend. During the renovations, Uncle Luis found Mr. Pereira standing on the toilet and checking on whether anyone was following him out a window. Richard broke his cell phone because he said people were listening to him and pulled out the wires from the phone land line. He broke dry wall from the ceiling in the basement, claiming that there was a bomb underneath. Richard said he saw a wire for a bomb but it was actually, according to Luis, the ground wire for a fixture. Mr. Pereira also pulled down drywall around a beam near the bathroom in the basement, saying there was a bomb underneath. At one point, Mr. Pereira said that the guys who put down the new flooring had planted a bomb.

[33] According to Uncle Luis, Mr. Pereira said that a psychic had told him about a bomb and that there would be an explosion. During the late morning, early afternoon of the day of the homicide, Mr. Pereira went with his uncle to buy him a tank of gas for his car. Mr. Pereira was paranoid and was looking out the window at people who were supposedly following him. He did not want to be alone in the house because of the bomb. His uncle told him he was crazy and that he needed help.

[34] That was the bulk of the evidence describing Mr. Pereira’s mental illness. The minor caveat with respect to the mental disorder issue raised by the Crown was that there was an evidentiary gap between the last direct evidence of Luis Pereira and Janet D’Angelo and the killing which likely took place between roughly 10:00 p.m. and midnight. Furthermore, Mr. Pereira called the CMHA crisis line from his home landline at 9:26 p.m. and the call was coherent, and no delusions were apparent in what he said. However, the call log summary recorded that he was complaining of long-standing anxiety and said that he had been “very stressed” as of late.

[35] The gap in time between the last direct evidence of Mr. Pereira’s state, together with the relative coherence of the CMHA call, are of no real concern. In Mr. Pereira’s case, the major aspects of mental disorder are apparent in the evidence. The history goes back to 2004, almost 11 years before the homicide. There is thematic continuity of paranoid and persecutory delusions right up to the time of the homicide. Almost always, it was the ex-girlfriend Maya from his days in Montreal years ago who was purportedly behind it all. Sporadically, the delusions would surface and become apparent to those around Mr. Pereira. There were the numerous hospital interventions over an eleven-year period. There was consistency throughout although there would be stretches of time in which Mr. Pereira would not exhibit strong symptoms.

[36] From October 2014 to the time of the homicide, the delusions began to peak. This was likely due to a higher stress level, at least partly attributable to anxiety about losing his home. One could not hope for a more poignant illustration of psychosis than the hiring of the private investigator to identify the non-existent people who were hounding and threatening him. This was a deeply rooted, persistent, fixed delusion. Mr. Pereira likely used money received from Ms. Horne—money precious to his day in and day out living expenses—to fund this quixotic adventure.

[37] At one point, the investigator himself was suspected of being in on the conspiracy. To be told that there was no one following him by the man he had hired, and then coming back several months later and insisting that there were people following him again, leaves no doubt. The allegation of the bomb in his house is equally extraordinary. A simple visual investigation was bound to put the lie to this. But Mr. Pereira must have seen it vividly and must have genuinely felt that he was burned by a blue flame. None of this had any objective reality.

[38] This is the definition of psychosis. Mr. Pereira was overwhelmed with the sense that he was being followed and that people were after him. He was able to add some detail: their vehicles were SUVs, they were predominately black SUVs, the people were starring at him, some flashed weapons. He believed that these things existed when there is no doubt that they did not.

[39] Mr. Pereira’s psychosis qualifies as a disease of the mind. It had reached an apex at the time of the killing. The defence has, with no difficulty, met the first element of a not criminally responsible finding.

[40] However, as Martin J.A. pointed out in Rabey adopted in Cooper v. R by Justice Dickson, as he then was, at para. 53 (Carswell):

In many, if not most cases involving the defence of insanity [now “not criminally responsible”], the question whether the accused suffered from a disease of the mind is not the critical issue; the pivotal issue is whether a condition which, admittedly, constitutes a disease of the mind rendered the accused incapable of appreciating the nature and quality of the act or of knowing that it was wrong.

III. DID MR. PEREIRA KILL MS. HORNE AT LEAST PARTIALLY DUE TO THE INFLUENCE OF A DELUSIONARY STATE?

[41] There were two necessary stages in the NCR position put forward by Mr. Pereira in this trial. The first stage required the defence to show on a balance of probabilities that at the time of the killing Mr. Pereira’s delusions led him to kill Kathryn Horne. This is a causal requirement. If delusions were not at least partially responsible for the killing, the analysis never reaches the issue of whether Mr. Pereira was capable of knowing his actions were morally wrong. The presence of delusions and their having more than a minimal part in the killing is a necessary step to an NCR verdict in this case.

[42] In some cases, like Oommen this may be a non-issue: see R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68 at p. 80; R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507; [1994] S.C.J. No. 60 at paras. 2, 9, 15, 30, 32, 33 (SCJ). But it was an issue on the evidence in this case

[43] The second stage would only come into view if it were found there were delusions at the time of the homicide having some relationship to the killing. If delusions were causally involved in the homicide, then the final question is whether the delusions were of a nature to deprive Mr. Pereira of the capacity to know that what he did was morally wrong.

[44] I propose addressing the first stage concerning delusions under three categories: 1. Mr. Pereira’s evidence; 2. The evidence of Sue Folinsbee that Ms. Horne planned to break up with Mr. Pereira the day he killed her. If true, this could well be evidence refuting the defence position that it was Mr. Pereira’s delusions which led to Ms. Horne’s death; and 3. The similar fact evidence tendered by the Crown that Mr. Pereira had been violent with other women in his past. This evidence, like the Folinsbee evidence, could be said to show that it was not Mr. Pereira’s delusions which led to the killing but rather his jealousy and anger.

i. Mr. Pereira’s Evidence

[45] The original defence position based on Mr. Pereira’s trial evidence and what he had said previously to the psychiatrists and psychologists was that, while walking down to the basement bathroom with Ms. Horne, an internal voice he knew as “Gabor” told him that she was part of the group out to get him and that he should kill her. He stabbed her to death in the bathroom. The delusions were part and parcel of the killing. Further, believing that he could only preserve himself by killing Ms. Horne demonstrated that he was incapable of knowing that the act was morally wrong.

[46] However, an extraordinary thing happened in this trial which led the defence to fundamentally alter their position. After Mr. Pereira’s evidence was completed, his own counsel took the position that he was not a reliable witness and essentially no reliance should be put on his account of events leading to and including the killing. That is, no weight should be put on the “Gabor” version of events. This was an understandable concession in light of the disastrous performance of Mr. Pereira on the witness stand.

[47] In order to illustrate this and given its importance, it is necessary to summarize parts of Mr. Pereira’s evidence in detail.

[48] Mr. Pereira testified that Ms. Horne came unexpectedly to his house at 51 Nanwood Drive, Brampton in the later part of the afternoon of March 28, 2015. They talked in his bedroom for a while and then went downstairs to the basement bathroom and had sex. This was common as he did not want his mother, Isabel, to hear them. They then went back up to his bedroom. Kathryn put a love spell on him. It meant that he would love her no matter what.

[49] He called the CMHA crisis line later in the evening. His mother went to bed at about 11 p.m. Richard and Kathryn fed his dogs. They decided to go downstairs again and talk. According to him, the look on her face changed after they left his bedroom.

[50] Halfway down the basement stairs, with him in the lead, the male voice he knew as Gabor said that he had to kill Kathryn, she was part of the Montreal group and, with them, would slaughter him, his mother and his dogs. He had been carrying a kitchen knife for months for his own protection. He stabbed Ms. Horne in the bathroom.

[51] When asked why he cleaned up the blood and did other things which had the effect of concealing what he had done, Mr. Pereira said that there were female voices which told him to do it. Their names were Amy and Monica. Forensic evidence showed that he had mopped up the blood in the bathroom. He moved the body to the small cellar in the back of the bathroom. Mr. Pereira took the case off Ms. Horne’s cell phone, smashed the phone and threw the remnants into the parking lot behind his house, some of them landing on his outdoor shed. He took Ms. Horne’s purse and coat and stuffed them into garbage bags that had been stored outside with renovation debris in them. Some of her jewelry was also found in the planter box by the rear door of 51 Nanwood.

[52] Even before cross-examination, there were significant implausibilities in Mr. Pereira’s stated motivation for killing Ms. Horne. On his evidence and on the full record, no past or present animosity existed between Mr. Pereira and Ms. Horne at the time of the killing. Mr. Pereira said the two were all lovey-dovey immediately before the ferocious acts which killed her. Why anyone, even the paranoid and psychotic accused, would kill a woman he had considerable affection for on the mere say so of a vague voice he had rarely heard before is difficult to comprehend. According to him, the killing was with no prelude, no questioning of the victim to attempt to verify or explore his traitorous suspicions prior to the commission of the irrevocable acts of killing.

[53] Furthermore, within the voluminous mental health and family history, there is virtually no indication of Mr. Pereira ever hearing voices. Early on in the 2004 Montreal hospitalizations, there were two references but nothing more. During the trial, counsel attempted to blunt the absence of this evidence by arguing that Mr. Pereira did not mention hearing voices because he was motivated to get out of hospital. That explanation does not hold water. In his long mental health history, Mr. Pereira was open for the most part about his paranoia and the belief he was being followed. It was not something that he did or could contain. If he was hearing voices, he would likely have spoken of them during his frequent bouts of hospitalization for mental illness.

[54] Nor was there any indication, post-homicide but prior to arrest, of him hearing voices or anything of a similar nature. In the circumstance, this might not have been something he would have said. Still, the absence of such a reference is a factor weighing against acceptance of his evidence.

[55] Mr. Pereira acknowledged that Ms. Horne posed no imminent threat to him on the stairs going down to the basement. He was bigger, stronger, younger. Mr. Pereira’s evidence was not that she was a physical threat but that her group would track her cell phone and find out where he was. They would then kill him. This had little to recommend it.

[56] There were also general credibility problems. It was uncontested and accepted by all that Mr. Pereira malingered with medical professionals who examined him after the killing. While there were explanations tendered for this conduct, the malingering damaged his reliability and credibility.

[57] It was after the Crown cross-examination that the defence capitulated and admitted that no reliance could be put on Mr. Pereira’s evidence. The cross-examination by Ms. Bridge had been very effective. During the cross-examination, the defence asked their re-examination of Mr. Pereira to be suspended until further neuropsychiatric or additional psychological testing could be done on Mr. Pereira. They were concerned that Mr. Pereira’s poor memory and confabulation might be misconstrued as a tendency to fabricate. Aside from the obvious procedural complexities of such an order, Mr. Pereira had been extensively tested by psychologists in the past. No further testing would have revealed anything of value. The application was denied.

[58] The cross-examination fundamentally altered the course of this trial. The result was that the factual basis for Dr. Gojer’s NCR opinion was pulled out from under him. Without a factual foundation, the expert opinion was entitled to no weight: R. v. Lavallee, 1990 CanLII 95 (SCC), 1990 CarswellMan 198, [1990] 1 S.C.R. 852 at para. 87-92 (Carswell).

[59] The cross-examination capitalized on many of the themes already touched upon in the evidence in-chief, such as the lack of any complaint about hearing voices at the scene of the crime. To the explanation that he did not want to be taken and or remain at the hospital, it was brought out that there had been suicidal statements in the past which led him to be hospitalized. This was an important inconsistency. It did not appear from that evidence that Mr. Pereira had a strong desire to avoid hospitalization.

[60] But many new areas were explored in the cross-examination, all to Mr. Pereira’s detriment. He had told the police at the scene that he took a great many pills: 4 Tramadol and 20 pills from two bottles. The truth is, he took one anti-psychotic pill before the homicide. The toxicology evidence confirmed this. After arrest, the police took him to the hospital as they were concerned about an overdose. Crown counsel pointed out that the pill bottles were full. Mr. Pereira was very reluctant to admit that what he said to the police was false although it obviously was.

[61] Mr. Pereira’s cross-examination, even more than his examination in chief, was replete with “I can’t remember” answers, even to conversations with Dr. Pomichalek, the defence psychologist, just a week before Mr. Pereira’s testimony. Mr. Pereira vacillated on both important factual matters and insignificant ones. Even an experienced listener would suffer vertigo trying to follow the ups and downs of his evidence. Mr. Pereira’s evidence had little integrity.

[62] Perhaps the most dizzying aspect was how much money Ms. Horne gave Mr. Pereira and why. It was an agreed statement of fact that $10,100 was deposited by Ms. Horne into Mr. Pereira’s bank account in several installments between January 30 and March 26, 2015. There may well have been more, however. Mr. Pereira’s evidence was changeable as the wind on the amount he received from her. He was even more inconsistent with respect to the reason she was giving him money. Sometimes he said that she was paying for sex with him, other times he staunchly disavowed this. Given the defence concession, there is no need to total the inconsistencies or attempt to reconcile or determine where the truth lies.

[63] At one point, Ms. Bridge put to Mr. Pereira that he must have been incorrect in saying that Ms. Horne came out to his home in Brampton twice a week. This contradicted his other evidence in which he said it was much more seldom than that, maybe three times all told. He agreed with Ms. Bridge that there was no motive for him to fabricate this, but he could not come up with an explanation for the stark discrepancy.

[64] The last section of the cross-examination was beautifully designed and executed. It was a methodical, piece by piece dismantling of Mr. Pereira’s credibility and reliability. It went directly to the act of killing itself. When it was complete, Mr. Pereira had lost all vestiges of credibility.

[65] This is what happened. After prodding in cross-examination, Mr. Pereira testified that when Gabor told him to kill Ms. Horne, he already was in possession of knives. He testified he wore a track suit and the jacket had interior breast pockets. He was wearing it at the time of the homicide. In each pocket he carried two matching knifes from the knife block in the kitchen. After the homicide, he testified he disposed of the knives in the heat duct in his room.

[66] Mr. Pereira identified his jacket from a photograph of it. He was quite definite that this was the jacket. He described the knives in some detail as well.

[67] When the jacket was pulled out of its evidence bag in court, it did not have any interior pockets. Mr. Pereira backpedaled desperately but in a manner which was utterly unconvincing. Moreover, photographs of the knife blocks, of which there were two, were produced. The type of knife he had identified was visible in one of the two knife blocks. But the block was full, all six knives were accounted for in the block. They were a set. While the other block had some open spaces, the knives in this other block were different in appearance and were not part of a set.

[68] In the Crown’s case, evidence had been led of a steak knife upstairs in the kitchen sink. There was also diluted blood in the sink. STRmix DNA software determined that the DNA on the left side of the blade of the knife, which could have come from blood, skin\fingerprint or saliva, was derived from a mix of DNA from Isabel Pereira, Mr. Pereira’s mother, Richard Pereira, the defendant, and Kathryn Horne. It is readily inferred that Mr. Pereira took possession of the steak knife from the kitchen drawer. There were several other knives exactly like it there. The DNA established that the steak knife was the homicide weapon, not the knives testified to by Mr. Pereira.

[69] Mr. Pereira concocted the story about the two knives in the pockets of the jacket for the purpose of trying to demonstrate that the killing was spontaneous, a direct response to Gabor’s command. He did so to resist the inference that he deliberately armed himself with the knife he used to kill Ms. Horne just before he stabbed her to death. Getting the knife to kill the victim from the kitchen drawer rather then from the jacket belied the Gabor voice being the instigator of the killing.

[70] This was a purposeful falsehood. And an important one. However, not all Mr. Pereira’s contradictions, discrepancies and memory lapses were deliberate fabrications or important in and of themselves. The psychological testing done on Mr. Pereira shows he has a very poor short-term memory and is functioning at a very low level. He struggled in school and does not read or write well.

[71] In a NCR trial in which the onus is on Mr. Pereira to the balance of probability standard, it may not matter terribly much whether Mr. Pereira’s falsehoods are deliberate or not. The effect of either conclusion is to hamper the ability to attain the level of the defence burden.

[72] In conclusion, I put no weight on Mr. Pereira’s report of how it came to be that he killed Kathryn Horne. I do not believe it to the balance of probabilities standard incumbent on the defence. In fact, I disbelieve it. Even when combined with the other evidence in the case, it is incapable of rising to the level of the burden of proof incumbent on the defence.

ii. The Importance of the Motive to Kill Evidence of Sue Folinsbee

[73] Evidence of motive is not generally an element of criminal offences. It is not an element here. But evidence of motive, or proved lack of motive, can be powerful evidence for or against an accused on the ultimate question of guilt or innocence. In this instance, where the primary issue is NCR, a rational motive on Mr. Pereira’s part to kill Ms. Horne could incline away from a NCR conclusion.

[74] Motive in this context refers to the emotional state of an accused which led to his commission of the act charged: R. v. Malone (1984), 1984 CanLII 3480 (ON CA), 11 C.C.C. (3d) 34, [1984] O.J. No. 22 (Ont. C.A.), at para. 25 per Martin J.A., R. v. Brissard, 2017 ONCA 891, (2017) 356 C.C.C. (3d) 494, at para. 17 per Pardu J.A. Motive evidence addresses “why” the offence was committed.

[75] There was a diametric opposition in the motive evidence in this case. Richard Pereira testified and told the medical professionals that, spurred on by Gabor, he was scared of Ms. Horne and feared she was part of a plot to kill him. There was a self- defence type motivation for the killing.

[76] Against this delusional motive stood the deceptively simple but powerful evidence of Sue Folinsbee, a friend of Ms. Horne’s, which was called at the beginning of the Crown’s case. Ms. Folinsbee testified that on the day of the murder, March 28, 2015, Ms. Horne told her over the telephone and that she was going to see Mr. Pereira that night and it was probably going to be for the last time. She would tell Ms. Horne about it when they saw each other the next day. In other words, it is readily inferable that Ms. Horne was going to tell Mr. Pereira that their relationship was over, and she did not want to see him again.

[77] The defence conceded that this hearsay statement was admissible. There was no substantial argument made during the trial that Ms. Horne had any motive to fabricate to her friend. In fact, Ms. Horne was quite a private person and was quite reluctant to talk about her ongoing affair with Richard Pereira. This invested the hearsay with significant additional trustworthiness.

[78] The defence did argue that Ms. Folinsbee and Ms. Horne’s other friend, Evelyn Giannini, did not like Mr. Pereira. Ms. Horne may have been attempting to please Ms. Folinsbee by telling her she was going to break up with Mr. Pereira.

[79] The factual premise for this argument is probably true. Ms. Folinsbee did not like Mr. Pereira. However, it must be remembered that Ms. Horne told Ms. Folinsbee that she would tell her more about the decision not to see Mr. Pereira the next day at the craft show. This fortified the inference that the intention to distance herself from Mr. Pereira was firm and genuine.

[80] The likelihood that Mr. Pereira would have gone into a rage upon being told the news that Ms. Horne did not want to see him again was increased by the importance of Ms. Horne in his life. Their relationship was important for his sexual gratification but there was more to it than that. There was clearly a good deal of affection between them. Furthermore, as mentioned, she had supported him financially to a significant degree. Losing her emotional and financial support could well have been devastating to him, particularly in the state he was in.

[81] Between the simple motive of anger and jealously of a spurned lover and the delusions prompting an apprehension of death at the behest of Ms. Horne, there is little to choose. The evidence of Mr. Pereira is totally unreliable and incredible. The evidence of Ms. Folinsbee and the inference to be drawn from it that Ms. Horne, with extremely unfortunate timing, broke up with Mr. Pereira, is clear and strong. But there are several other matters that must be discussed before coming to a final conclusion.

iii. The Admissibility of the Bad Character Evidence

[82] The purpose of this evidence tendered by the Crown of Mr. Pereira’s past acts of physical aggression against other women was to bolster the motive evidence, thereby rebutting the NCR argument. The defence, upon being questioned about this evidence in final argument, argued for the first time that it was inadmissible. I agree. Being bad character evidence outside the scope of the indictment, it is presumptively inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. The presumption has not been rebutted in this case.

[83] The bad character evidence was presented by way of transcripts of three guilty plea proceedings of Mr. Pereira in the years before the homicide. He pled guilty to criminal harassment (x2), mischief, harassing phone calls and breach of bail (x2) for incidents that took place on June 21 and July 1, 2006. Mr. Pereira’s girlfriend at the time broke up with him in May of that year but Mr. Pereira continued to call her 9 to 15 times a day. He attended her workplace but was denied entry. He walked through the office in a rage looking for her. He damaged some property on his way out of the office. Soon afterwards, he was charged and released on a no-contact bail. Contrary to his conditions, he attended at the complainant’s apartment and banged on the door.

[84] After these incidents, Mr. Pereira continually called the complainant for a lengthy period of time.

[85] The second guilty plea proceeding involved an offence committed December 6, 2007. Mr. Pereira committed a forcible entry with respect to another girlfriend. There had been two prior verbal domestic incidents between them. The complainant had just had a shower when she heard a knock on the backdoor of her home, followed by a loud noise. She went to see what was going on and saw Mr. Pereira on the stairs. He had broken the door frame to get in. She feared for her safety and called 911. She said she would scream if he did not leave immediately and he did. During the course of the relationship, he made many unwanted phone calls to her. He would phone even though she had said that she could not go out that day and did not want him to call.

[86] The last incident occurred on September 3, 2010. He assaulted another girlfriend. He had been living with her for approximately one month. The relationship had been deteriorating. He picked her up at work and they had an argument about his jealousy. She tried to get out of the car and he grabbed her arm, preventing her from leaving. She bit him and he released her. She was able to get away.

[87] In order to gain admission, similar fact evidence must be more probative than prejudicial. In assessing probative value, it is critically important to isolate the issue upon which the evidence is tendered by its proponent: R. v. Handy at paras. 69-75. Only then can probative value be properly measured. Evidence on a non-issue results in no probative value added. On the other hand, evidence on a live issue and one important to the Crown’s case, could engender significant probative value.

[88] In this case, the evidence is to prove that the killing of Ms. Horne was not the result of delusions but rather anger and jealousy. The guilty plea admissions supplement the evidence of Ms. Folinsbee and suggest that once Mr. Pereira learned that Ms. Horne did not want to see him again, he flew into a rage and killed her.

[89] Similar fact evidence utilizes a double inference: 1. From an act or acts, an inference is sought to be drawn to establish a general propensity or disposition; 2. From this general propensity, it is inferred that a person likely acted in accordance with it and committed the act in issue (R. v. Batte, (2000) 2000 CanLII 5751 (ON CA), 34 C.R. (5th) 197, 2000 CarswellOnt 2113 (Ont. C.A.) at (Carswell) paras. 97-98, The Law of Evidence in Canada, Sopinka, Lederman and Bryant (2nd ed. 1999) at pp. 567-568, 1A Wigmore on Evidence, s. 55.1, pp. 1060-1061).

[90] It has been generally acknowledged that the first inference, from an act or acts to a conclusion about an individual’s disposition, is often a weak one. However, despite this reality, there is a natural tendency to overvalue this inference and the reliability of the disposition conclusion which it leads to (M. Rosenberg, Similar Acts and Evidence of Other Extrinsic Misconduct, Issues Arising in Criminal Prosecutions for Distant Events, ADGN/RP-005 (Lexis Nexis, at pp. 23-24); Alan W. Mewett Q.C., “Character as a Fact in Issue in Criminal Cases” (1984-85) 27 Crim. L. Q. 29 at p. 30; 1A Wigmore on Evidence, s. 55.1, pp. 1060-1061).

[91] To assess the probative value in this case, two intermediate conclusions of disposition are available. First, it can be said that Mr. Pereira has problems with women with whom he has intimate relationships and can become violent towards them. Second, more specifically, the conclusion is arguably available that when he is rejected by a woman, he reacts violently and lashes out at her.

[92] The first conclusion is fed by all three of the incidents led by the Crown. However, the general tendency towards violence against women fails to add value to a live issue in the case. There is no dispute Mr. Pereira killed Ms. Horne. The question is not whether he did it but why he did it. Violence against women contributes little probative value to this question.

[93] However, the second inference of a tendency to violence when rejected by a woman has much greater pertinence to the central problem of this trial. Yet there is a difficulty with this reasoning too, although of a different kind.

[94] Only the first incident is truly an example of Mr. Pereira being spurned by a lover, like the allegation of the Crown in this trial. There is incidental evidence of jealously in the third example, but it is not a central motif. Overall, the last two incidents exhibit only general aggression towards women and, for this reason, are of lower probative weight. One incident is insufficient to raise probative value sufficiently to qualify for admission.

[95] Moreover, the first incident was almost 9 years before the homicide. Mr. Pereira was at a quite different time of life, 27 years old as opposed to 36 when he committed the homicide.

[96] It is difficult to formulate a reliable generalized disposition from a single act. This problem was alluded to by Justice Binnie in Handy:

35 The dangers of propensity reasoning are well recognized. Not only can people change their ways but they are not robotic.

(iii) Number of Occurrences of the Similar Acts

85 An alleged pattern of conduct may gain strength in the number of instances that compose it. The cogency of the similar act evidence in the "brides in the bathtub" case undoubtedly gathered strength from the fact the charge related to the third victim who had died under identical circumstances to her two predecessors: R. v. Smith (1915), 84

L.J.K.B. 2153 (C.C.A.).

[97] Justice Doherty said in Batte at para. 98:

Despite its relevance, evidence that depends on propensity reasoning for its admissibility is usually excluded because its potential prejudicial effect outweighs its probative value:

R. v. Arp, supra, at p. 339. Often the evidence has little probative value because either or both of the necessary inferences needed to give the evidence probative force are tenuous. For example, the inference that an accused has a certain disposition based on evidence of a single discreditable act could be so tenuous as to have virtually no probative value. (Emphasis Added)

[98] With respect to prejudice, the Crown has argued that this being a judge alone trial, prejudicial effect should not be a major factor. There is some truth in this. Prejudice is reduced when the judge is the finder of fact. In R. v. McCormick, 2009 ONCA 72, 241 C.C.C. (3d) 516 at para. 69, Justice Watt held that reasoning prejudice is reduced to the “vanishing point” in a count to count similar act application. Although this is not a count to count similar act application, Justice Watt’s observation carries some weight in any judge alone case. Reasoning prejudice is not a major problem for a judge sitting alone: see R. v. Calnen 2019 SCC 6, 430 D.L.R. (4th) 471 at para. 188 per Martin J. dissenting in part.

[99] However, moral prejudice remains a substantial concern. Whether a trial by jury or judge alone, the vital appearance of trial fairness can be compromised by the introduction of bad acts outside the temporal boundaries of the indictment. As Justice Doherty said in R. v. Batte at para. 100:

Propensity reasoning also imperils the overall fairness of the criminal trial process. It is a fundamental tenet of our criminal justice system that persons are charged and tried based on specific allegations of misconduct. If an accused is to be convicted, it must be because the Crown has proved that allegation beyond a reasonable doubt and not because of the way the accused has lived the rest of his or her life. An accused must be tried for what he or she did and not for who he or she is. The criminal law's reluctance to permit inferences based on propensity reasoning reflects its commitment to this fundamental tenet:

McCormick on Evidence, 5th ed., p. 658; R. Lempert, S. Saltzburg, A Modern Approach to Evidence (1982) at p. 219.

[100] Lastly, the superficial similarity between the tendered evidence and the allegation here, both situations of violence against women, magnifies the prejudicial effect. Dr. Iosif, the psychiatrist called by the Crown, testified that the prior acts showed a “maladaptive” attitude towards women. Maybe so. But in the absence of a connection to a live issue, mere similarity generates primarily prejudice, not probative value

[101] For example, in R. v. Corbett 1988 CanLII 80 (SCC), 1988 CarswellBC 252, [1988] 1 S.C.R. 670, [1988] 4 W.W.R. 481 writing in dissent, Justice LaForest said at paras. 162-164 (Carswell), that prejudicial effect may be heightened by similarity between the tendered evidence and the charge before the court, depending on the ultimate issue upon which they evidence is tendered. That is true in this case.

[102] In conclusion on this issue, the similar act evidence tendered by the Crown is inadmissible.

iv. Conclusion: Did the Delusions Lead to the Killing?

[103] To reiterate, credibility deficiencies and the strength of the competing inference that Mr. Pereira flew into a rage after Ms. Horne announced she did not want to see him again, line up against finding that it was delusions which led to the killing. Another aspect tending to rebut delusions was Mr. Pereira’s statement to the police, in answer to a question why he had killed Ms. Horne, “It was something she did.” This did not sound like the recounting of a delusion so much as a justification for an act of retaliation against Ms. Horne.

[104] However, since both delusions and incapacity to know that the killing was morally wrong must be shown by the defence, before coming to a firm conclusion with respect to the delusions issue, it is best to turn to the question of incapacity.

IV. WAS MR. PEREIRA INCAPABLE OF KNOWING THAT THE KILLING WAS MORALLY WRONG?

[105] Defence counsel for Mr. Pereira did not rely on Mr. Pereira’s incapacity to appreciate the nature and quality of his actions branch of NCR but rested only on the second branch: his incapacity for knowing that the killing was morally wrong.

[106] The most recent word on the legal meaning of incapacity to know an act is morally wrong is that of Justice Doherty in R. v. Dobson, 2018 ONCA 589, [2018] O.J. No. 3450, leave refused [2019] S.C.C.A. No. 70:

24 In my view, Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507] 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. (Emphasis Added)

[107] In Dobson, the defence argued that if the accused at the time of the killing did not have the capacity for rational choice, this rendered him NCR. Justice Doherty, relying on the case law in the last 20 years, reasserted that the critical legal question is the capacity to know the act was morally wrong.

[108] For Mr. Pereira to succeed, the killing must have been not only committed while in a delusionary state, but the delusions must have deprived him of the capacity to know his acts were morally wrong. As related above, the defence did not rely primarily on Mr. Pereira’s testimony, at least when unsupported by other evidence. Instead, the defence relied on Dr. Julian Gojer’s testimony and what was termed the “collateral” evidence from other sources.

[109] In his report dated just days before Mr. Pereira took the witness stand, Dr. Gojer tendered the opinion that based on Mr. Pereira’s version of the killing, he was likely to have been NCR at the time of the killing. Relying almost exclusively on Mr. Pereira’s self-reporting, he concluded at page 120 of his report:

It is likely that Mr. Pereira’s delusional belief that he and his mother and his dogs were going to be killed by Ms. Horne, who he believed was part of a conspiracy of people who wanted to kill him, was the driving force behind his homicidal actions. He believed that he had no choice but to kill Ms. Horne in order to save himself and his family. He felt morally justified in doing so and believed that what he did was what others in a similar situation would have done.

Mr. Pereira’s delusional thinking along with command hallucinations robbed him of the capacity to weigh the pros and cons of his actions. His psychotic state would have precluded him from thinking beyond the confines of his psychosis. He was trapped in [a] world of unreality (psychosis) and would have been incapable of exercising rational choice. The severe psychotic state would have prevented him from knowing that what he did was morally wrong at the time of the stabbing. He reports that at the time of the stabbing he believed that what he did was justifiable from a societal moral standard. Mr. Pereira said that a short time after the alleged offense, he seems to have come to a realization that what he did was morally wrong.

[110] With the defence backing away from reliance on Mr. Pereira’s evidence, Dr. Gojer could no longer rely upon this opinion. Its factual foundation had disappeared. However, Dr. Gojer remained of the opinion that Mr. Pereira was NCR but on a new basis not mentioned in his report.

[111] Dr. Gojer’s new conclusion was that there was a strong inference Mr. Pereira had “incorporated” Ms. Horne into his delusions and killed her for this reason. His belief system expanded to incorporate her. These delusions were not the Gabor voice Mr. Pereira’s attested to but other delusions. None, it should be observed parenthetically, were as directly connected to the killing as the Gabor delusion. Dr. Gojer said that while writing his report, he had not been aware of some of the trial evidence. He learned of these aspects while sitting in and listening to Mr. Pereira’s evidence. This is what led him to form what amounted to his second NCR opinion in this case.

[112] It should be noted that this new conclusion was contrary to what Mr. Pereira had told Dr. Gojer previously. Mr. Pereira had said to Dr. Gojer not long after the killing that he did not believe that Ms. Horne was part of the plot against him. This, to Dr. Gojer, did not make sense because he also said that people wanted to kill him because he had killed her.

[113] Dr. Gojer relied upon several categories of evidence as demonstrating the delusions he relied upon. There was an agreed statement of fact that Ms. Horne looked up a number of subjects on the internet browser on her computer which Mr. Pereira was obsessed with. These included voodoo spells, love spells, marriage spells, black magic and witchcraft. There was evidence that she attempted to cleanse his house by a number of different means. There were black stones she had bought found around the home and one in Mr. Pereira’s pocket when he was arrested. She was interested in stones and geology according to her sister Heather. There was evidence that Ms. Horne and Mr. Pereira had burned sage for the purpose of ridding the home of evil spirits. Ms. Horne was supportive of him and that led him to include her in his delusional system. Dr. Gojer referred to a “folie a deux”: in his definition, two people sharing the same psychosis.

[114] Ms. Horne also bought him some of the spy equipment fueled by his paranoia. She was trying to help him. She either bought into his belief system or she was indulging him. In any case, Dr. Gojer was of the view that at the time of the homicide Mr. Pereira had incorporated Ms. Horne into his paranoid persecutory ideas.

[115] Mr. Pereira showed Sam Nasso the wrapped-up sage and said it was a stick of dynamite. He said that there was a bomb in the basement as well. This was clearly delusional.

[116] Dr. Gojer testified that the comments to Ms. D’Angelo and Mr. Nasso made by Mr. Pereira connected Ms. Horne to the bomb. She was also said by Mr. Pereira to be a psychic and had said the home would blow up. In Dr. Gojer’s view, this gave him “very significant concern that the belief system involving people trying to harm his is now extending or incorporating Ms. Horne … and that’s part of … the systemization of the delusion…” Mr. Pereira attributed the bomb to Ms. Horne, according to Dr. Gojer.

[117] Mr. Pereira wrote a will which in his belief system, according to Dr. Gojer, showed he believed he was going to die imminently.

[118] The morning after the offence, Mr. Pereira passed his mother at the police station. She asked him why. He yelled at her in his native language, Portuguese, “she was a witch.” Dr. Gojer relied upon this too. In his evidence, he said this supported the evidence that “she was going to kill him, that she was connected with the people who wanted to kill him…” When he stabbed her, he may have believed she was a witch. His emotions would have been “significantly aroused.”

[119] Dr Gojer concluded in his evidence:

This is a man who could not because his severe psychosis rationally evaluate the circumstances. He was totally irrational. What’s the likelihood that he would have been able to know that what he was doing at a moral point of view? The likelihood to me is more likely than not. We want to then look at, as I said, the thread that continues, and the thread that continues goes even beyond that day. It goes to the jail. But to me, the compelling links are the thoughts, the feelings, the comments made to all the people prior to the homicide, the comments made to the police just after that, that would give you the connecting threads, and the connecting threads involve persecutory delusions, beliefs that a love spell has been cast on him. The belief that this woman is no longer the person who she is but a witch, and that she was connected with the bombs of the people who he had planted it there. So to me, this is not the mind of a rational individual who would be able to accurately evaluate the pros and cons of his actions and how and what he’s actually doing at the time, and if he truly believed that she was a witch, and she was part of this plan to kill him, then there would be a moral justification in defending himself. That is why I make this comment, it would be more likely than not that he would have not known what he was doing at the time was morally wrong.

V. FINAL CONCLUSION: WERE THE DELUSIONS A CAUSE OF THE KILLING AND, IF SO, WAS MR. PEREIRA INCAPABLE OF KNOWING THAT THE KILLING WAS MORALLY WRONG?

[120] The various strands of Dr. Gojer’s opinion must be carefully analyzed. Considering first the evidence of the “incorporation” of Ms. Horne into Mr. Pereira’s belief system, this dresses up in metaphoric language what is actually a simple concept. It obscures more than it illuminates.

[121] There is no question Mr. Pereira was delusional and paranoid. At various times he suspected his brother Andrew and his cousin Daniel, two of the people closest to him, of being in league with those who intended to hurt him. He questioned others with a similar suspicion. A paranoid person is likely to see the world in a paranoid way. There is nothing surprising or unusual about this. Ms. Horne may have been aware of and privy to Mr. Pereira’s psychosis because of her intimate relationship with him.

[122] “Incorporation” in the context of the evidence in this case does little more than state the obvious. What had to be ultimately shown by the defence was something that went much further. In the context of this record, the defence was obligated to demonstrate that Mr. Pereira erroneously believed, because of his paranoia and delusionary state, that Ms. Horne was a threat to his life and well-being. He killed Ms. Horne under the influence of a delusion that it was necessary for his self-preservation.

[123] While this was Mr. Pereira’s evidence, it was agreed that it could not be relied upon. Apart from this, the defence was unable to harness Mr. Pereira’s paranoid and persecutory delusional state to a belief that Ms. Horne was going to harm him and that he had to kill her to preserve himself.

[124] There is little doubt that Mr. Pereira felt threatened by unknown people and forces and felt that his life was in danger on the day of the homicide. But outside of his own evidence on the witness stand, there was precious little evidence to show that he felt threatened by Ms. Horne.

[125] Ms. Horne was helping Mr. Pereira keep his paranoia at bay. It will never be known whether she was a true believer or was just trying to placate him. I believe the latter is more likely to be true. The email messages from her to Mr. Pereira, going up to three weeks before the homicide, were universally affectionate and supportive. The tendency of the evidence on this issue taken as a whole, is to show that there was a fellowship between them against Mr. Pereira’s demons.

[126] Dr. Gojer also relied upon the evidence that Mr. Pereira entangled Ms. Horne in his delusions about the bomb in his house. While the evidence may support that she had told him there was a bomb, although this is difficult to fathom, there is no indication in evidence that Mr. Pereira attributed the bomb and the malevolent intent behind it to Ms. Horne. He did not testify to this nor did the circumstantial evidence from other sources lend any significant support to the notion. According to what he said to others, he thought she was a psychic and she told him there would be an explosion. Besides the arguably hearsay aspect of this (see R. v. Kirkby 1985 CanLII 3646 (ON CA), 1985 CarswellOnt 108, [1985] O.J. No. 166 (C.A.) at paras. 54-66, leave refused [1986] 2 S.C.R. vii), again this does not portray Ms. Horne as an antagonist.

[127] I also do not agree with Dr. Gojer’s heavy reliance on Mr. Pereira blurting out that Ms. Horne was a witch. While this showed hostility towards Ms. Horne, in context it may well have been merely a deliberate, after-the-fact justification for killing her. The comment must be seen in light of Mr. Pereira’s unreliability as a witness. His mother shot back with a comment which showed her own disbelief. Lastly, it was far from clear that calling her a witch was a reference to the diabolical supernatural personage or, if it was, that this supported a delusional belief that she was going to harm him before he killed her.

[128] The foreknowledge of his own death exhibited on the day of the homicide is evidence of his mental disturbance and an exceedingly agitated state but is of little assistance in demonstrating incapacity to know that the killing of Ms. Horne was wrong.

[129] Creeping into Dr. Gojer’s testimonial opinion, even though it had been expressly disavowed by the defence, was a reliance on Mr. Pereira’s viva voce evidence. However, once Mr. Pereira’s evidence was removed from consideration, the evidence that it was delusions which led to Ms. Horne’s death was tenuous.

[130] The concession that Mr. Pereira was unreliable as a witness had profound ramifications for this trial. I have found that not only do I not believe Mr. Pereira—which is as far as the defence concession went—I disbelieve him. The rejection of Mr. Pereira’s account of the voices that led him to kill Ms. Horne is important. There is no credibility to the entire narrative leading to Mr. Pereira’s self-professed actions said to taken in his own defence.

[131] In the aftermath of the defence concession, practically speaking, an alternative explanation covering the same territory and with the same desired result was unlikely to be persuasive. Severing Mr. Pereira's evidence from the trial and successfully transplanting new evidence to arrive at the same result would have been an extraordinary feat.

[132] Dr. Gojer deftly and quite comfortably shifted from reliance on Mr. Pereira’s evidence for his NCR opinion to abandoning reliance on his evidence and coming to an NCR opinion pieced together from other evidence he had not relied upon before. This shift displayed loyalty to the cause of Mr. Pereira and his defence.

[133] But it is the obligation of an expert witness to be objective and non-partisan: White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 SCC 23, [2015] 2 S.C.R. 182 at paras. 32, 46; “Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts” (2009), 34 Queen’s L.J. 565 by Prof. David Paciocco (as he then was). Dr. Gojer’s evidence attempted to change the narrative of this trial. The tectonic shift in the factual foundation for his opinion was questionable, the evidence he relied upon dubious. The new evidence could not be woven into the trial record to form a coherent Section 16 narrative.

[134] Justice Paciocco in his article described association bias in these terms (at p. 577):

The most extreme examples of association bias are the jukebox witnesses who consciously modify their opinions to suit the party who pays them. Though dishonest jukebox witnesses are likely rare, association bias is not. Even witnesses who set out to be honest can humour their consciences under the pressure of pleasing their patrons by using less odious forms of factual manipulation such as “spin” or selective presentation. In fact, it is probable that the most insidious manifestation of adversarial bias arises from confirmation bias—the unconscious tendency of those who desire a particular outcome to search for things that support that outcome and to ignore or reinterpret contradictory information.

[135] Ultimately, the concerns with respect to Dr. Gojer’s objectivity, given that I have rejected the substance of his evidence, need not be resolved.

[136] In the final analysis, on the first stage of the relationship of the delusions to the killing, the defence has not met their burden to demonstrate a connection between Mr. Pereira’s psychosis and the killing of Ms. Horne. The alternative explanation that Mr. Pereira flew into a rage when Ms. Horne announced she no longer desired to see him is much more likely.

[137] Even if the defence had been able to get over this hurdle, there has been a failure to prove that Mr. Pereira was incapable of knowing that the killing was morally wrong. His evidence, even bolstered with the other evidence in the case, is unreliable. The other evidence, upon proper scrutiny, provides virtually no support for the argument. Dr. Gojer’s opinion is pure theory in desperate search of evidentiary support. His psychiatric opinion floats untethered to the trial evidence and, in the end, is of no assistance to the defence with respect to the plea of NCR and Section 16.

[138] Furthermore, besides there being no sufficient evidence of Mr. Pereira’s incapacity to know that his conduct was wrong, there is positive evidence against it grounded in Mr. Pereira’s after-the-fact conduct. There are two categories. The first is evidence of concealment. This includes disposing of Ms. Horne’s cell phone, her clothing and her jewelry. The attempts to mop up the blood in the basement bathroom is another example of the same thing.

[139] The second category is utterances made by Mr. Pereira. These include the statement to the police at the scene that he had done something bad, that he did not want his mother to see the body and that he would go to jail forever.

[140] This after-the-fact conduct demonstrates consciousness of guilt. There is no reason to distinguish between the use of this category of evidence to rebut an NCR “defence” and its use in the more common situation where there is no NCR issue: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at pp. 342-44, 113 C.C.C. (3d) 1. In both, the after-the- fact conduct serves as circumstantial evidence: R. v. White 1998 CanLII 789 (SCC), 1998 CarswellOnt 2561, [1998] 2 S.C.R. 72, [1998] S.C.J. No. 57. In its effect in this case, it demonstrates that Mr. Pereira knew the killing of Ms. Horne was wrong.

[141] The Supreme Court in R. v. Chaulk 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, [1991] 2 W.W.R. 385, 1990 CarswellMan 239 overruled their previous authority and held that “wrong” as used in Section16 means “morally wrong” (para. 107, Carswell).

[142] Mr. Pereira testified in his evidence that he knew the killing was legally wrong. He did not know it was morally wrong, he said. Mr. Pereira said he knew in a general sense that killing was wrong, but he believed he had the moral authority to kill Ms. Horne based on his right to protect himself. The distinction between moral wrongness and legal wrongness was based to a significant extent on self-defence emanating from Mr. Pereira’s delusions that Ms. Horne was part of a conspiracy against him.

[143] There are several factual and legal problems here. First, after Mr. Pereira’s evidence grounding the legal\moral distinction is dispensed with along with the rest of his evidence, as it must be, the self-defence aspect has no real factual foundation. The moral wrongfulness and legal wrongfulness distinction is to a large extent removed.

[144] Furthermore, the distinction between the moral and the legal may be vital for definitional purposes of the law but will not frequently be significant in specific cases. An exception was Chaulk itself. The appellants acknowledged that they knew killing the victims was legally wrong but said that they believed they had the power to rule the world and killing was a necessary means to that end. They were above the law. They knew that the killings were legally wrong but did not know they were morally wrong. There was a clear distinction between the legal and moral wrongfulness in their evidence.

[145] Generally, the distinction between the two will be so fine as to be virtually indiscernible. Chief Justice Lamer in Chaulk, in the process of explaining why the court ought to adopt a standard of moral wrongfulness from the dissenting judgment of Dickson J. (as he then was) in the previous case of Schwartz v. R., 1976 CanLII 165 (SCC), [1977] 1 S.C.R. 673, 34 C.R.N.S. 138, 29 C.C.C. (2d) 1, 67 D.L.R. (3d) 716, 8 N.R. 585, paraphrased Justice Dickson, saying (para. 101 (Carswell),

…what is illegal and what breaches society’s moral standards does not often differ.

[146] There is virtually no difference in this case, unlike on the facts of Chaulk. The distinction between legal and moral wrongfulness is a difficult tightrope to walk for the defence.

[147] The after-the-fact conduct has probative value to prove knowledge of moral wrongfulness: R. v. Jacquard at para. 50. It is not equally consistent with knowledge of legal wrongfulness: see by analogy R. v. White at paras. 26-35. The evidence, although potentially going to both, was much more pertinent to moral wrongfulness then it was to legal wrongfulness. Mr. Pereira, after killing Ms. Horne, was reacting based on his own moral sense, not his legal sense.

[148] While not definitive, the after-the-fact acts of concealment, in the context of all of the evidence, tend to support that Mr. Pereira knew that his actions were not only legally wrong but were morally wrong. They had significant probative value towards the Crown’s position opposing a NCR finding in this trial.

[149] The admission that he had done something “bad” and the other utterances made at the same time even more strongly support a conclusion of moral wrongfulness. Acknowledging that the killing was “bad” is a moral judgment, not a legal one. Mr. Pereira’s consciousness of guilt further rebuts the NCR plea put forward by the defence.

[150] In conclusion, the defence has failed to show on a balance of probabilities that Mr. Pereira was incapable of knowing that killing Ms. Horne was morally wrong.

VI. WHAT FORM OF HOMICIDE DID MR. PEREIRA COMMIT?

[151] While an NCR conclusion would render the homicide non-culpable, rejection of the NCR argument leads to the result that the killing committed by Mr. Pereira was culpable. Mr. Pereira is guilty of culpable homicide by reason of causing death by an unlawful act, the act of stabbing.

[152] Culpable homicide is either manslaughter or murder: Section 234 of the Criminal Code. The defence did not argue that Mr. Pereira should be convicted of manslaughter as opposed to second-degree murder. However, there is an air of reality to a manslaughter verdict. It must be considered, if only briefly.

[153] The foundation for manslaughter is Mr. Pereira’s psychosis and the frenzied nature of the killing as evidenced by Ms. Horne’s injuries.

[154] Against this, the numerous stab wounds and the location of the two wounds in the vital neck area lead to an almost irresistible inference that Mr. Pereira intended to cause Ms. Horne’s death. There has been no elaboration in the evidence or in argument explaining how Mr. Pereira’s psychosis could have prevented or impeded what otherwise appears to be a clear formation of the intent to kill. While theoretically possible, the record does not support any reasonable doubt on this subject.

[155] While Mr. Pereira testified that he intended to kill Ms. Horne, his credibility is exceedingly low. Not much if any weight can be put on his admission.

[156] I find that, in view of the injuries to Ms. Horne, particularly their location and number, Mr. Pereira intended to kill Ms. Horne. The Crown has proved beyond a reasonable doubt that Mr. Pereira is guilty of second-degree murder: Section 229(1)(a) of the Code.

[157] The final question is whether first degree murder has been proven by the Crown to the requisite standard. A directed verdict was ordered with respect to first degree murder committed by way of planning and deliberation. What remains is first degree murder arrived at by a killing committed in the course of a forcible confinement: Section 231(5)(e) of the Criminal Code.

[158] The pivotal question as explained in the directed verdict ruling comes down to this: Has the Crown shown that Mr. Pereira marched Ms. Horne downstairs at knife point before killing her in the basement bathroom? Only then can it be show that there was a forcible confinement standing as a separate and distinct act from the killing.

[159] As explained in the directed verdict ruling at paragraphs 16 to 18, the cases of R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195 and R. v. Kimberley, (2001) 2001 CanLII 24120 (ON CA), 157 C.C.C. (3d) 129 (Ont. C.A.) dictate that the forcible confinement be a distinct and independent act from the act of killing. A prefatory act of forcible confinement must result in the domination of the victim, by this means facilitating the acts causing death.

[160] I am satisfied that the other elements of this form of first-degree murder- forcible confinement and murder committed in the course of the forcible confinement— have been proved beyond a reasonable doubt. Only the one issue remains.

[161] The evidentiary context is a difficult one for the Crown. The direct and indirect evidence germane to this head of first-degree murder is sparse. Mr. Pereira is incredible and unreliable; Ms. Horne is dead.

[162] The evidence is purely circumstantial. The main lesson of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 29-30 is that where a conclusion of criminal guilt rests mainly or exclusively on circumstantial evidence, guilt must be the only reasonable inference available. The purpose of this prerequisite—distinct from the beyond a reasonable doubt standard—is to ensure the finder of fact does not jump too quickly to a conclusion of guilt without considering the alternatives which may present themselves.

[163] Are there alternative reasonable inferences to the conclusion of forcing the victim down the stairs into the bathroom at knife point? The most likely alternative is that Mr. Pereira concealed the fatal knife until the two arrived in the bathroom, only then pulling it out to kill Ms. Horne. This was his testimony, although as recounted above, central details of this account were fatally undermined in Ms. Bridge’s cross- examination.

[164] In his agitated and enraged state, it seems unlikely that Mr. Pereira could have contained his anger and concealed his murderous design. But it is possible.

[165] The inference that the knife was concealed until Mr. Pereira and Ms. Horne were in the basement bathroom where the killing occurred is buttressed by the lack of any blood being discovered on the stairs or anywhere else in the home. It is difficult to believe that Ms. Horne would have gone quietly and willingly into the basement at knife point. There is every possibility that she would have realized that her life was at stake and would have fought back. If so, blood would have been discovered on the stairs going down into the basement. But there was no evidence of this.

[166] Overall, in the minimalist evidentiary picture of this trial, the alternative that the knife was concealed before the two arrived in the basement bathroom is not unreasonable. The Crown supposition that Ms. Horne was forcibly confined prior to and independently of the commencement of the murder cannot be established with a substantial degree of assurance. It has not been proven to the high degree of certainty required.

[167] The Crown attempt to prove first degree murder fails. There is a reasonable doubt. In the result, having rejected the NCR evidence and argument and having found an intention to kill beyond a reasonable doubt, Mr. Pereira will be found guilty of second- degree murder.

_

D.E. HARRIS J.

Released: July 12, 2019

COURT FILE NO.: CR-16-1840 and CR-16-1831

DATE: 2019 07 12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E EN:

HER MAJESTY THE QUEEN

• and -

RICHARD PEREIRA

REASONS FOR JUDGMENT

D.E. HARRIS J.

Released: July 12, 2019

[^1]: During his evidence, it appeared that Mr. Murphy may have taken upon himself some responsibility for not being able to intervene with Mr. Pereira and possibly prevent the homicide. It is worth mentioning that no one could have foreseen this tragic killing and there is no way it could have been prevented by Mr. Murphy.