COURT FILE NO.: CR-15-008691
DATE: 20191114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CAMERON MOSSADDAD
Defendant
Brian McCallion, for the Crown
Daniel Brodsky, for the Defendant
HEARD: October 15 and 17, 2019
REASONS FOR DECISION
DI LUCA J.:
[1] This is tragic case. Mr. Mossaddad is charged with first degree murder in relation to the death of his grandmother, Ms. Herma Parkes. There is no issue that Mr. Mossaddad killed his grandmother using his legs to strangle her. There is also no issue that Mr. Mossaddad suffers from a significant mental illness that was operative at the time of the killing.
[2] With the consent of the Crown, Mr. Mossaddad elected to be tried before me without a jury. A plea of not guilty was entered and facts establishing the commission of first degree murder were admitted. I then heard evidence from a forensic psychiatrist, Dr. Misha Hartfeil, on the issue of Mr. Mossaddad’s mental state at the time of the murder.
[3] The only issue in this case is whether Mr. Mossaddad is not criminally responsible for the death of his grandmother. Mr. Brodsky argues that the evidence amply supports a finding of not criminally responsible on a balance of probabilities. In particular, Mr. Brodsky argues that Mr. Mossaddad lacked the capacity to know that his actions would be viewed as morally wrong by reasonable members of the public. For the Crown, Mr. McCallion argues that the evidence before me fails to establish the absence of criminal responsibility on a balance of probabilities. Rather, the evidence shows that Mr. Mossaddad likely had the capacity to appreciate the moral wrongfulness of his conduct.
[4] For the reasons that follow, I am satisfied on a balance of probabilities that Cameron Mossaddad is not criminally responsible for the death of his grandmother.
Brief History of this Matter
[5] Mr. Mossaddad was initially scheduled to be tried before Edwards J. with a jury starting in August of 2017. Mr. Brodsky was retained to assist Mr. Mossaddad at trial. He was Mr. Mossaddad’s fifth or sixth counsel.
[6] During pre-trial motions, Mr. Brodsky sought the court’s direction in relation to certain instructions he received from Mr. Mossaddad. Those instructions related to the dissemination of disclosure material to various media outlets ostensibly for the purpose of revealing the conspiracy against Mr. Mossaddad. For reasons reported at 2017 ONSC 5520, Edwards J. dismissed defence counsel’s request to be relieved from direct and implied undertakings regarding disclosure.
[7] Following pre-trial motions, a jury was selected and the trial commenced. It soon became apparent that there were significant fitness concerns. Edwards J. ordered a fitness assessment and a mistrial was declared. Following receipt of the Fitness Assessment Report, the matter continued as a fitness hearing before Edwards J. with a jury. On January 12, 2018, the jury found Mr. Mossaddad unfit to stand trial and he was returned to hospital under a treatment order.
[8] Mr. Mossaddad remained under the jurisdiction of the Ontario Review Board until February 27, 2019, when he was found fit to stand trial and returned to the court system. The matter came before me for a fitness hearing and a jury was empanelled for that purpose. On May 15, 2019, the jury found Mr. Mossaddad fit to stand trial. I then placed Mr. Mossaddad on a “keep fit order”, and on consent of all parties I also ordered an assessment into his criminal responsibility.
[9] On July 22, 2019, a report was provided to the court pursuant to the Assessment Order. Following further judicial pre-trials before Fuerst R.S.J., the matter returned before me for what effectively amounted to a criminal responsibility hearing.
[10] At the outset of the hearing, I conducted a modified plea comprehension inquiry. While the formal plea that was entered was not guilty, I was advised that the facts admitted at the trial would establish the commission of first degree murder. Out of an abundance of caution, I made certain inquiries of Mr. Mossaddad’s understanding of the nature of the process that was proposed. At the conclusion of the plea comprehension inquiry, neither counsel indicated any concerns and I was satisfied that the matter should proceed.
The Evidence on the Hearing
[11] An agreed statement of facts was tendered as Exhibit #1. As summary of the facts is as follows:
a. On May 23, 2015, Mr. Mossaddad, who was at the time 23 years old, strangled his grandmother, 70 year old Herma Parkes during a physical fight inside the bedroom of her apartment. She died of neck compression and also had signs of other injuries caused by blunt force to her face, neck and head.
b. At the time of her death, Ms. Parkes lived alone in an apartment and Mr. Mossaddad was a university student studying sciences.
c. Mr. Mossaddad arrived at his grandmother’s apartment around 10:30 p.m. He was dropped off there by his university roommate. Ms. Parkes was expecting him. At some point after his arrival, a physical altercation ensued. The investigation revealed that Ms. Parkes was killed in her bedroom. Her body was found next to the bed with her head near the door of the bedroom. A black handled steak knife was found beside her body. Photos depicting the location of the body were also tendered into evidence during Dr. Hartfeil’s evidence.
d. At approximately 5:00 a.m. on May 23, 2015, Mr. Mossaddad walked to the McKenzie Health Centre hospital, which was approximately 25 minutes from his grandmother’s apartment. At triage, he presented with what he claimed were wounds inflicted on him by his grandmother. Nursing staff observed superficial cuts on his torso, arms, neck and face. He also had some bruising and an open wound on his left upper arm that required sutures. He appeared oriented as to time, place and identity. He also appeared to respond appropriately to questions.
e. When asked whether he wanted police involved, he replied “yes”. Police were called and Police Constable Supina and Police Constable Case attended at the hospital to speak with Mr. Mossaddad.
f. Mr. Mossaddad advised the officers that he had been attacked by his grandmother during a dispute over the volume of the television. According to Mr. Mossaddad, his grandmother called him the “devil” and during the ensuing struggle he wrapped his legs around her neck and squeezed until she was no longer breathing. He told police that the clothes he was wearing during the attack were in his backpack which he had with him.
g. Officer’s attended at Ms. Parkes’ apartment where she was found dead. Mr. Mossaddad was arrested for murder and taken to a police station. After consulting with counsel, he provided a video recorded statement.
h. Examination of the clothing later revealed an absence of cuts corresponding to the wounds on Mr. Mossaddad. Examination of the steak knife revealed the presence of Mr. Mossaddad’s blood/DNA.
i. After killing his grandmother, Mr. Mossaddad removed his sweatshirt and self-inflicted wounds on his arms and torso.
j. An analysis of Mr. Mossaddad’s cell phone revealed a history of searches on May 17, 2015, approximately six days prior to the murder, including searches for “signs of foul play”, “cops strangulation death”, and “medical exam asphyxia”. Twenty minutes after the searches a call was placed from Mr. Mossaddad’s phone to his grandmother’s phone. The call was returned approximately two hours later and an eight minute conversation took place.
[12] The Crown also filed a transcript of a statement given by Mr. Mossaddad to police. The statement is lengthy and Mr. Mossaddad is engaged throughout the statement. He provides details about his family, employment and education history. He also discusses his health, though he makes no reference to any mental health issues.
[13] When asked about what happened at his grandmother’s apartment, Mr. Mossaddad explained that he arrived at her apartment later than expected. He hugged and kissed his grandmother when he entered the apartment. She made him spaghetti for dinner which he ate, and they then watched television. Later, when his grandmother was getting ready for bed, Mr. Mossaddad continued watching television on his own. At some point, his grandmother called him into the bedroom. She raised her voice and indicated she was upset over the volume of the television. She was “getting obscenely upset”. She then took a knife from the night table and started swinging it at him and calling him Satan. She also said that he “would be more useful dead. Like your mom”.
[14] Mr. Mossaddad explained that he and his grandmother became involved in a physical confrontation inside her bedroom. She grazed him with the knife and he tried to wrestle the knife away from her, receiving further injuries in the process. During the struggle, Ms. Parkes bit Mr. Mossaddad and he bit her back. He denied inflicting an injury to her face post-mortem.
[15] There is no mention in the statement of any conspiracy against Mr. Mossaddad. There are no overt or obvious signs of delusions. Mr. Mossaddad makes a brief reference to a life insurance policy that his grandmother had taken out on his life, but he also notes that it had been cancelled when his grandmother stopped paying for it.
[16] On the whole, the statement advances a claim of self-defence, wherein Mr. Mossaddad was attacked by his grandmother and he engaged in a struggle with her, culminating in her asphyxiation.
The Evidence of Dr. Misha Hartfeil
[17] Dr. Hartfeil was qualified to give expert evidence in the field of forensic psychiatry and in particular, on the issue of criminal responsibility. On consent, her curriculum vitae and report were filed. Given the cooperative nature of the proceeding, it was agreed that the report would constitute the bulk of the doctor’s evidence in-chief. The Crown was permitted to ask further questions with some latitude granted in view of the doctor’s position on criminal responsibility. Mr. Brodsky conducted a lengthy and detailed cross-examination, which was followed by a brief re-examination by the Crown. While the process was somewhat non-conventional in view of the fact that the defence was ultimately arguing in favour of an NCR finding, I am satisfied that the process adopted caused no unfairness to either party and was in keeping with the quasi-ministerial role and function of Crown counsel.
[18] Dr. Hartfeil’s report is 63 pages in length. It contains a detailed summary of the material reviewed and relied upon by the multidisciplinary team who assessed Mr. Mossaddad during the currency of the assessment order. A summary of key portions of the report follows.
Mr. Mossaddad’s Background
[19] Mr. Mossaddad was born in Toronto to a Jamaican-Canadian mother, Faith or Fay. His mother was a substance user and it appears that she passed away from a drug overdose when he was two years old. Mr. Mossaddad believed that Nasir Mossaddad, a chiropractor living in the United States, was his biological dad though at age 13 or 14 he learned that this was not the case. His biological father was man named “Peter” who was not involved in any aspect of his life. While Nasir Mossaddad initially raised Mr. Mossaddad as his own son, Nasir eventually moved to the United States, married and started a family there. Mr. Mossaddad eventually moved in with his grandmother in Richmond Hill, though at one point he was taken into CAS care and placed in foster homes. He eventually moved in with the Thompson family and stayed with them until he started living in student residence at the University of Waterloo.
[20] Mr. Mossaddad did well enough in school to be accepted into the sciences program at the University of Waterloo. However, once there, he performed poorly and stopped attending classes. At the time of the offence, it appears that he was being asked to withdraw due to his poor academic performance.
[21] In terms of employment, Mr. Mossaddad worked at two restaurants and a 7-Eleven Convenience Store. His longest term of employment was three months. His employment at 7/11 was terminated over alleged issues of dishonesty.
The Onset of Mental Illness
[22] As set out in the report, around the age of 19, Mr. Mossaddad began feeling suspicious about his grandmother. At that time, she had taken out an insurance policy on him and named herself as the beneficiary. He thought this was very strange and he questioned her motives. He also asked her whether she had received an insurance payout when his mother died and she indicated that she had. Mr. Mossaddad became convinced that his grandmother had killed his mother. He believed that her motivation was in part financial, and in part religious.
[23] Mr. Mossaddad’s suspicions regarding his grandmother grew and he became concerned that she was trying to poison him. He reported that certain songs by particular music groups had messages for him regarding his grandmother. He also reported receiving messages in online chat groups suggesting that his grandmother was going to kill him.
[24] When Mr. Mossaddad was 22 years old, he purchased an online DNA test. He had previously assumed that he was of part Japanese heritage given his appearance, and he had adopted the surname “Oshiro” to reflect this assumed heritage. The DNA results revealed that he was approximately 50% Ashkenazi Jewish. This discovery caused Mr. Mossaddad to research his heritage and he came to believe that he was likely the illegitimate child of Amschel Rothschild, a member of the prestigious Rothschild family.
[25] Mr. Mossaddad became concerned that there was a connection between his newly discovered heritage and threats to his life. He also became concerned that Amschel Rothschild’s apparent suicide in 1996, was actually a murder and that the “Illuminati” were involved with both the death and the cover-up.
[26] Mr. Mossaddad also reported receiving signs in the media and in music suggesting that the Illuminati were surveilling him and wanted him dead. He grew suspicious of everyone and by the summer of 2014, he felt that everyone was watching him and that they had information on him and wanted to harm him. He specifically indicated that construction workers at the University of Waterloo campus were watching and laughing at him. He believed the police were involved and he no longer trusted his family.
[27] On one occasion, Mr. Mossaddad attended at the Assistant Registrar’s office at the University of Waterloo. He asked to speak to a former employee of the university and indicated that he wanted to know why the employee’s name appeared on his grandmother’s fridge, on an elevator in his apartment and on his work phone.
[28] Mr. Mossaddad believed that his grandmother was working “on instruction” from the Illuminati. He also believed there was a connection between the Illuminati and her religion, Jehovah’s Witnesses.
[29] Mr. Mossaddad came to believe that the Illuminati wanted to kill him. He reported that listening devices had been placed in his dormitory and that tracking devices were on his computer. He reported that graffiti, new stories and television programs, all appeared to be directly sending him messages. He reported being abducted by aliens in September 2014, and indicated that the aliens implanted a device behind his eyes.
[30] When interviewed by Dr. Hartfeil, Mr. Mossaddad confirmed that in the time leading up to the offence he struggled with fears for his safety. He believed that his newly discovered father had been murdered by the Illuminati. He also believed that his mother had been killed by his grandmother. He saw many connections between his grandmother, her religion and the Illuminati, and he became convinced that she was out to kill him.
[31] He became withdrawn from friends, family and colleagues. Attempts to obtain help from them were unsuccessful and he understood that the nature of the accusations he was making made him appear “crazy.”
Mr. Mossaddad’s Account of What Happened
[32] In terms of the actual incident involving his grandmother, Mr. Mossaddad claimed that he had no memory of what took place. He also claimed no recollection of providing police the account that is revealed in the video recorded statement. Mr. Mossaddad was not able to reconcile the fact that he claimed no current memory of the incident but was able to give a fairly detailed recitation to police.
[33] When asked to explain why he left important details about his beliefs out of the police statement, Mr. Mossaddad was initially unable to provide an explanation but later indicated that he was likely trying not to the let the police officers know about these beliefs because he knew that they made him look “crazy”. He also indicated that he did not want his credibility to be damaged by allowing others to suspect that he was mentally ill or suffering from a psychotic illness. In addition, he did not trust the police and feared that they were part of the conspiracy against him. In this regard, he indicated that he feared for his safety if he spoke openly about the conspiracy against him.
[34] After reviewing portions of his disclosure in an attempt to jog his memory, Mr. Mossaddad indicated that he was “1,000,000 per cent sure” that his grandmother was going to kill him and that he had no other way of surviving. He felt that it was “either me or her”, and that there was no chance he was wrong about this.
[35] While Mr. Mossaddad maintained that he was being “framed” for the murder of his grandmother, he was unable to explain exactly what this meant or why he came to this conclusion. He maintained the view that he was the victim of a conspiracy that included members of the Illuminati, the police, the Crown and government, who were all working together to discredit him by making him appear mentally ill.
[36] He further explained that the version of events he gave the police regarding the incident was crafted to convey a series of events that “were more believable than what actually happened”.
Collateral Information
[37] Starting in the summer of 2014, Mr. Mossaddad began to present with symptoms of mental illness that were documented by collateral sources. For example, on September 3 and 4, 2014, Mr. Mossaddad met with a social worker and expressed suicidal ideation due to various issues going on in his life.
[38] On September 12, 2014, he met with Dr. Snyder and reported that he was preoccupied with physical symptoms and had concerns about a parasitic infection.
[39] On September 18, 2014, Mr. Mossaddad contacted police from Pearson International Airport seeking “guidance on life”. He had taken a taxi to the airport from Waterloo and was concerned that he was being followed.
[40] At some point during September 2014, Mr. Mossaddad reported to Ms. Thompson, whom he viewed a step-mother, that he believed someone was trying to kill him and that he was going to Ottawa to deal with the problem. It appears that Mr. Mossaddad did actually travel to Ottawa where he attended various embassies seeking asylum. He was turned away each time.
[41] On September 25, 2014, he attended at the Student Awards and Financial Aid Office of the University of Waterloo and appeared extremely agitated and paranoid to staff. Dr. Ruttan, a psychologist and Director of Counselling Services at the university was contacted, and he met with Mr. Mossaddad who revealed that he thought many people were giving him “dirty looks” and knew his personal information.
[42] Mr. Mossaddad continued to communicate with Dr. Ruttan but refused to meet with him unless Dr. Ruttan agreed not to take notes. His final meeting with Dr. Ruttan was on December 14, 2014. At that time, Mr. Mossaddad made enquiries about a former university employee and asked whether she had been fired for leaving him a voicemail message.
[43] In December 2014, Mr. Mossaddad told Ms. Thompson’s son that he believed certain rap musicians were communicating with him through their music. He also told Ms. Thompson’s husband that he had to sever all ties with their family in order to avoid them getting hurt. He indicated that he was leaving school and becoming a freemason.
[44] On April 16, 2015, staff at the university became concerned when he contacted the Registrar’s office sounding distressed, agitated and paranoid. He raised concerns about many things including various police services, terrorism, violations of his privacy.
[45] On April 22, 2015, Mr. Mossaddad again contacted the Registrar’s office wanting to know why a former employee was leaving her name “everywhere”, including his desk and apartment elevator. He expressed concern that the former employee was informing on him.
[46] On May 22, 2015, the university decided that Mr. Mossaddad would need to withdraw due to his poor academic performance, though they delayed telling him this due to concerns about his mental health.
[47] Mr. Mossaddad’s friend, Mr. Hong, confirmed that from September 2014 to January 2015, Mr. Mossaddad became more paranoid. While Mr. Hong noted that by January 2015, Mr. Mossaddad seemed better, he did not attend any classes between January and April 2015.
[48] Mr. Hong’s girlfriend, Ms. Abdulkadir, also indicated that during this time period Mr. Mossaddad was acting “super paranoid”. He complained about various health issues. He told friends he had cancer but later said it was a lie. She indicated that all of their mutual friends had concerns about his mental health.
Results of Various Assessments
[49] In order to address concerns regarding malingering, certain psychological tests and assessments were conducted. The test scores placed Mr. Mossaddad well below the cut-off score, indicating that he was very likely not feigning mental illness. Other testing suggested that Mr. Mossaddad was under-reporting symptoms or intentionally denying them. It was also possible that he had poor insight into his symptoms and mental health problems. Dr. Hartfeil’s own opinion was similar. She opined that he was very unlikely to be feigning, malingering or even exaggerating his symptoms.
[50] In terms of diagnosis, Dr. Hartfeil noted that Mr. Mossaddad appeared to have developed psychotic symptoms, including prominent delusions and mild formal thought disorder beginning in his later teens and early twenties. Over the years, Mr. Mossaddad also appeared to have developed a complex delusional system involving the Illuminati, the Rothschild family, his ethnicity and background, and the police and government. These delusional beliefs all became connected in a broad conspiracy against him, centered on his grandmother, her religion, his deceased parents and his grandmother’s perceived connections to the Illuminati.
[51] It was Dr. Hartfeil’s opinion, based on her team’s assessment and the file review, that Mr. Mossaddad clearly suffers from a primary psychotic disorder, most likely schizophrenia and possibly a delusional disorder. She also found that Mr. Mossaddad met the criteria for alcohol and cannabis abuse disorders.
[52] Lastly, Dr. Hartfeil could not rule out a personality disorder due to Mr. Mossaddad’s active ongoing psychosis.
Opinion on Criminal Responsibility
[53] In terms of criminal responsibility, Dr. Hartfeil provided the following opinions;
a. There was no evidence to suggest that Mr. Mossaddad did not appreciate the nature and quality of his actions at the material time. While he now claimed to have no recollection of the incident, the police statement given close in time to the incident clearly demonstrates that he was aware of the physical nature and consequences of his actions.
b. There is little evidence suggesting that Mr. Mossaddad did not know the legal wrongfulness of his actions. He inflicted wounds on himself and presented a false story of self-defence to police, which suggests an appreciation of the legal implications of his conduct.
c. At the time of the incident, Mr. Mossaddad was convinced that his grandmother was involved in and central to a broad conspiracy to kill him. He also believed that she had previously killed his mother and that her co-conspirators had killed his biological father. Mr. Mossaddad believed he had no option other than to kill her. He had tried to get help elsewhere but ultimately came to the conclusion that those he sought help from were likely involved, or complicit in the conspiracy in some manner.
d. The search history on his phone and computer suggested that he planned to kill his grandmother. However, Dr. Hartfeil was of the view the evidence of planning did not preclude a finding that he was driven by his psychosis.
e. Mr. Mossaddad was very reluctant to reveal any details of his thought processes which might suggest that was suffering from mental illness. His attempt to provide a plausible self-defence narrative was an effort on his part to disguise or hide his mental illness. In Dr. Hartfeil’s opinion, these steps do not support the view that Mr. Mossaddad had the capacity to appreciate the moral wrongfulness of his actions. Rather, they support the view that he was aware that the true motive for his actions would be perceived as delusional and would negatively impact his credibility.
f. Mr. Mossaddad most likely killed his grandmother as a result of his delusions regarding a broader conspiracy which led him to believe that that his life was inevitably, if not imminently, threatened. He likely felt that he had no other option but to kill her to protect himself, and therefore saw her killing as a morally justifiable act.
[54] During her evidence before me, Dr. Hartfeil was challenged on various aspects of her opinion. In particular, the Crown focused his questions on Mr. Mossaddad’s capacity to know that others might view his actions as morally wrong. In this regard, Dr. Hartfeil explained that while Mr. Mossaddad appeared to have exercised a choice in terms of what he revealed to police, in her view, he did this to avoid revealing his actual thoughts and beliefs which he understood would result in him being labelled “crazy” and would potentially place him in danger.
[55] Dr. Hartfeil acknowledged that there were some difficulties with Mr. Mossaddad’s presentation. For example, while he was concerned that his grandmother was plotting to kill him, perhaps by poisoning him, he went to her apartment and ate the food she cooked.
[56] As well, it appears from the police statement that Mr. Mossaddad was aware that his grandmother had actually cancelled the life insurance policy she took out on him, and that therefore this was not a fact supporting an intention on her part to kill him at that time.
[57] Dr. Hartfeil also acknowledged that Mr. Mossaddad’s presentation at the hospital shortly following the incident did not raise concerns about his mental health, nor did his presentation in the police interview.
Legal Framework and Analysis
[58] Section 16 of the Criminal Code (“the Code”) provides as follows:
16 (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.
[59] As set out in section 16 of the Code, the law presumes that individuals who commit offences are criminally responsible for their conduct. The law also recognizes that it is unfair to impose criminal consequences on accused persons who commit an act while mentally unsound, in other words, while suffering from a mental disorder that renders the person incapable of appreciating the nature and quality of the act, or of knowing that it is wrong.
[60] If a person commits an offence while mentally unsound, they are not acquitted of the offence. Rather, they are found “not criminally responsible by reason of mental disorder”. Jurisdiction over the person is then transferred to the Ontario Review Board, which is statutorily empowered to inquire into the risk posed by the person and determine whether and when the person can be released back into the community. In this regard, the availability of a verdict of not criminally responsible on account of mental disorder “gives effect to society’s interest in ensuring that morally innocent offenders are treated rather than punished, while protecting the public as fully as possible”; see R. v. Bouchard-Lebrun, 2011 SCC 58, at para. 52.
[61] To be exempt from criminal responsibility due to a mental illness, it must be established on a balance of probabilities that an accused person suffered from a mental disorder at the time of the offence, and further that the mental disorder rendered the accused incapable of either appreciating the nature and quality of an act or omission, or incapable of knowing that the act or omission was wrong.
[62] In this regard, “wrong” has been interpreted to include not only legally wrong but also morally wrong, see most recently R. v. Dobson, 2018 ONCA 589. In R. v. Campione, 2015 ONCA 67 at paras. 30-31, the Court of Appeal discussed moral wrongfulness as follows:
The concept of “moral wrongfulness” in this context has been established by the Supreme Court of Canada in R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, R. v. Oommen, 1994 CanLII 101 (SCC), [1994] 2 S.C.R. 507, and their progeny. The focus is not on whether the accused lacks the general capacity to know right from wrong, but rather on whether he or she is deprived – by reason of a mental disorder (including, in some cases, delusions) – of the capacity to know that the particular act is right or wrong having regard to the everyday standards of reasonable people: Oommen, at pp. 516-20. It follows that not every mental illness or delusion-driven subjective view will qualify an accused for the s. 16 defence. As Lamer C.J.C. stated in R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68, at p. 80:
It is not sufficient to decide that the appellant’s act was a result of his delusion. Even if the act was motivated by the delusion, the appellant will be convicted if he was capable of knowing, in spite of such delusion, that the act in the particular circumstances would have been morally condemned by reasonable members of society.
Moral wrongfulness as contemplated in s. 16 is a slippery concept to apply. However, this Court very succinctly summarized the relevant considerations in Ross, at para. 27, when it stated that “a subjective belief by the accused that his conduct was justifiable will not spare him from criminal responsibility even if his personal views or beliefs were driven by mental disorder, as long as he retained the capacity to know that it was regarded as wrong on a societal standard”: see also R. v. Woodward, 2009 ONCA 911, [2009] O.J. No. 5484, at para. 5.
[63] The onus of establishing that a person is not criminally responsible rests with the party raising the issue. In this case, it is the defence that seeks to argue that Mr. Mossaddad was not criminally responsible. I pause to note that this is not a position that Mr. Brodsky could have advanced at an earlier stage in these proceedings. Indeed, when this matter was before Edwards J., Mr. Mossaddad was adamantly opposed to any suggestion that he was mentally ill. Since then, his fitness to stand trial has stabilized and he has undertaken a lengthy course of medical intervention. While his mental health has stabilized to the point where he can participate in the process and instruct counsel, he remains mentally ill and indeed continues to believe in the existence of a conspiracy against him.
[64] In terms of the issue of criminal responsibility for the murder of Ms. Parkes, the only expert evidence before me is that of Dr. Hartfeil. Her professional opinion supports a not criminally responsible verdict from a medical perspective. There is no opposing expert evidence.
[65] The absence of any opposing evidence does not as a matter of law mean that I must find Mr. Mossaddad not criminally responsible. I am entitled to accept some, none or all of Dr. Hartfeil’s evidence. As well, it is up to me to assess the degree to which her opinion is supported by the facts in evidence. Even if I accept all of her evidence and find that it is adequately supported by the facts, the ultimate issue is a legal question that I must determine. While I must not capriciously reject her evidence, I am not required to uncritically accept it either; see R. v. Grandbois (2003), 2003 CanLII 52129 (ON CA), 63 O.R. (3d) 161 (Ont.C.A.) and R. v. Molodowic, 2000 CSC 16, 2000 SCC 16.
[66] Ultimately, if I am not satisfied on a balance of probabilities that Mr. Mossaddad was not criminally responsible at the time of the offence, the presumption of criminal responsibility remains intact and he must be convicted of first degree murder. If, however, I am satisfied on a balance of probabilities that he was not criminally responsible at the time of the murder, I must so find.
[67] To be clear, the issue in this case is narrow. There is no issue that Mr. Mossaddad suffers from a disease of the mind, and further that the particular disease of the mind that he suffers from was active at the time of the offence. In this regard, Mr. Mossaddad suffers from schizophrenia. The onset and manifestation of the illness is very well documented in Dr. Hartfeil’s report and there is no suggestion of malingering.
[68] In terms of the incident that resulted in his grandmother’s death, there is no suggestion that Mr. Mossaddad failed to appreciate the nature and quality of his actions. He clearly understood that he was engaged in a struggle with his grandmother, and also understood that he used his legs to strangle her to death.
[69] Similarly, there is no suggestion that Mr. Mossaddad was unaware of legal wrongfulness of his actions. He went to the hospital and provided a version of events wherein he was attacked by his grandmother and he acted in self-defence. This version of events clearly supports an inference that he was aware that the act of killing his grandmother was unlawful. He also understood that the act could be mitigated or excused if he was seen as a victim who had acted in self-defence. That is the version he proffered to hospital staff and then to police. It was also a false narrative based in part on self-inflicted injuries.
[70] The real issue is whether Mr. Mossaddad’s mental illness deprived him of the capacity to understand the moral wrongfulness of his actions. In this regard, it is not enough for me to be satisfied that as a result of his mental illness, Mr. Mossaddad felt morally justified in doing what he did.
[71] It is on this issue that the Crown and defence part company. The Crown argues that Mr. Mossaddad was likely able to appreciate that others would view his actions as morally wrong. The Crown further suggests that Mr. Mossaddad made a choice to present a certain narrative of events that bespeaks an appreciation that others would view his acts as not only legally wrong, but also morally wrong.
[72] In this regard, the Crown points to the evidence of Mr. Mossaddad’s presentation at the hospital and during the police statement. The Crown notes that Mr. Mossaddad’s presentation raised no significant concerns about his mental health. He was, at least initially, viewed as a potentially legitimate victim of an offence. He did not give any indication that he was operating under a delusional set of beliefs, or that he was suffering from any hallucinations. As well, to the extent that he had a delusional belief that his grandmother was part of a grand conspiracy to kill him, the Crown notes that the strength of the delusion is questionable. In particular, notwithstanding his fears that his grandmother was going to kill him, perhaps by poisoning him, Mr. Mossaddad went to her apartment and ate the food that she had prepared for him. He also engaged in an otherwise non-descript visit, including watching television. On earlier occasions, he took his girlfriend to visit his grandmother and again ate the food served. While the Crown accepts that collateral accounts reveal and corroborate the emergence of Mr. Mossaddad’s mental illness, those collateral sources suggest that at the time of the offence, Mr. Mossaddad’s symptoms were not as severe as they had been earlier.
[73] The Crown argues that on the whole, the evidence of what Mr. Mossaddad did during and immediately after the murder more likely supports an inference that he knew, or at least had the capacity to know, that society would condemn his acts as being morally wrong. While the Crown acknowledges the possibility that Mr. Mossaddad’s motivation was to hide his mental illness, the Crown argues that the strength of this inference is weak when viewed in the context of the evidence as a whole.
[74] Dr. Hartfeil was asked a number of questions specifically on the issue of Mr. Mossaddad’s capacity to understand the moral wrongfulness of his actions. She explained that in her opinion, at the time of the offence, Mr. Mossaddad subscribed to a delusional belief in a broad conspiracy against his life involving a number of actors including his grandmother and the Illuminati. While aspects of the conspiracy did not involve his grandmother, his grandmother was, nonetheless, a central feature of his delusional beliefs. That said, Dr. Hartfeil acknowledged that there were some confounding factors in this case. In particular, she acknowledged that Mr. Mossaddad told police that he knew the life insurance policy had been cancelled by his grandmother. He claimed no memory of telling this to police, and he told Dr. Hartfeil that the fact that his grandmother had a life insurance policy on him made him suspect that she had a motive to kill him. More broadly, Dr. Hartfeil acknowledged that Mr. Mossaddad’s claim of having no recollection of what he told police was difficult to reconcile with the detailed narrative he provided. Dr. Hartfeil also acknowledged that the conspiracy and Mr. Mossaddad’s responses to the conspiracy were neither consistent nor particularly cohesive. In her view, this was not unexpected given the nature of the illness suffered by Mr. Mossaddad.
[75] Notwithstanding these issues, Dr. Hartfeil maintained her opinion that Mr. Mossaddad’s mental illness rendered him subject to a delusional belief that his grandmother was part of a conspiracy to kill him. The delusion was not a perfect or rational delusion and there were factual gaps and inconsistencies in the delusion. Nonetheless, Mr. Mossaddad was firmly of the view that his grandmother wanted to kill him just like she had killed his mother. He believed the risk was imminent and he believed that he had no option but to kill her in order to save his own life. Moreover, he also believed that the conspiracy against him extended broadly to include many others including the police.
[76] Importantly, he believed that if he revealed his awareness and understanding of the conspiracy two things were likely to happen. First, he would be labelled as “crazy” and would therefore be viewed as lacking credibility. Second, the revelation of his knowledge of the conspiracy would place his life at risk. Based on a combination of these factors, Mr. Mossaddad actively attempted to hide his mental illness.
[77] In terms of his capacity to appreciate the wrongfulness of his actions, Dr. Hartfeil opined that the strength of the delusional beliefs Mr. Mossaddad was operating under would likely have caused him to believe that any reasonable member of the public would view his actions as morally acceptable if they knew the facts of the conspiracy as he understood them. While he took active steps to create and advance a theory of self-defence, this was not a demonstration that he had the capacity to understand the moral wrongfulness of his actions. Rather, it was a process of hiding his mental illness out of fear for his safety and out of fear of being branded incredible and crazy.
[78] In cross-examination, Dr. Hartfeil was asked about the strength of her opinion. While she declined to place a numerical value on its strength, she did indicate that she felt quite comfortable with her opinion. She indicated that she considered the weaknesses and limitations in the material presented to her but was, nonetheless, “reasonably certain” that Mr. Mossaddad lacked the capacity to know that his acts were morally wrong. She indicated that this was not a case where she was “on the fence” in terms of her conclusions. This was also not a case where she needed to consider an opposing opinion. Lastly, Dr. Hartfeil indicated that there was no dissenting view within her multidisciplinary team.
[79] In my view, Dr. Hartfeil gave balanced and objective evidence. She arrived at a well-supported opinion based on an extensive file review, interviews with Mr. Mossaddad and consideration of material assembled by other members of her team. Importantly, she was alive to and considerate of the factual limitations presented by the case, including the possibility of malingering.
[80] I accept her evidence that Mr. Mossaddad’s mental illness deprived him of the capacity to know that others would view his conduct as morally wrong. While I understand why the Crown has raised a concern about Mr. Mossaddad’s presentation at the hospital and during his police statement, I accept Dr. Hartfeil’s evidence that this was likely an attempt by Mr. Mossaddad to minimize the extent of his mental illness. Her opinion that he did so in order to avoid being labelled “crazy” and therefore less worthy of belief and also out of concern for his safety, makes sense when placed in the full context of the evidence.
[81] Mr. Mossaddad was clearly suffering from a significant mental illness at the time of the offence. The effects of the illness caused him to believe in the existence of a widespread conspiracy to kill him. He sought help from friends and others and learned that when he expressed his views, he was quickly labelled as “crazy”. As his illness progressed, the scope of the conspiracy also expanded. Mr. Mossaddad eventually felt like “everyone” was in on it. He also felt like his life was in danger.
[82] I accept that he likely came to believe that he had to kill his grandmother in order to save his own life. I also accept that he viewed his conduct as morally acceptable based on the nature of his delusional beliefs. Most importantly, I accept that Mr. Mossaddad likely would have believed that if others were properly apprised of the facts regarding the conspiracy, they too would see the conduct as morally acceptable. As such, Mr. Mossaddad lacked the capacity to understand the moral wrongfulness of his actions.
[83] Ultimately, on the evidence which I accept, which includes Dr. Hartfeil’s considered expert opinion, I am satisfied on a balance of probabilities that at the time of the offence, Mr. Mossaddad was operating under a disease of the mind that rendered him incapable of understanding the moral wrongfulness of his actions.
[84] Mr. Mossaddad, please stand. I find you not criminally responsibly of the first degree murder of your grandmother, Ms. Herma Parkes.
Justice J. Di Luca
Released: November 14, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CAMERON MOSSADDAD
Defendant
REASONS FOR DECISION
Justice J. Di Luca
Released: November 14, 2019