R. v. Goudreau, 2021 ONSC 1228

Her Majesty the Queen v. René Goudreau, 2021 ONSC 1228

Court File and Parties

COURT FILE NO.: 12-7872 DATE: 20210310 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – RENÉ GOUDREAU Accused

Counsel: Lisa Miles and Anne Fitzpatrick, for the Crown Douglas Baum and Samantha Robinson, for the Accused

HEARD: January 18, 19, 25 & 27, 2021

Reasons for Decision

R. Smith J.

1The issue to be decided in this trial is whether Mr. Goudreau is not criminally responsible by reason of a mental disorder for burning his mother on November 27th, 2012.

2The accused, René Goudreau, was convicted of the first-degree murder of his mother by a jury in October 2015. The trial was adjourned until January 2016 to determine whether Mr. Goudreau should be found not criminally responsible by reason of mental disorder. The jury found Mr. Goudreau guilty of first-degree murder.

3On December 6, 2019 the Ontario Court of Appeal allowed the appeal and sent the matter back for a new trial, limited to the question of whether Mr. Goudreau was not criminally responsible by reason of a mental disorder for killing his mother. This is the only question that must be determined in this trial.

4The parties have agreed that the record of the evidence presented at the first trial be filed as admissible evidence for the truth of its contents in this trial. The parties have also agreed on a summary of the evidence from the previous trial which is to be evidence at this trial and which I will include in this decision under the heading of “Agreed Summary of Evidence from the first trial”.

Issue

5The issue to be decided in this trial is as follows:

#1 Was the accused suffering from a mental disorder at the time that rendered him incapable of appreciating the nature and quality of his act or of knowing that it was wrong?

Agreed Summary of Evidence from the first trial

Overview

6René Goudreau was charged with the first-degree murder of his mother, Lucie Goudreau, on November 27, 2012. It was proven that he started a fire in their shared apartment on the ground floor of 90 Woodridge Crescent in the City of Ottawa. The fire started in Ms. Goudreau's bedroom. Ms. Goudreau suffered from Multiple Sclerosis and was confined to a wheelchair. She could not move from her bed to her wheelchair alone. Her body was found in her bed badly burned after the fire. She died as a result of the fire.

7The Appellant had a bifurcated trial. In the first portion of his trial in October 2015 he was convicted by a jury of the first-degree murder of his mother. Following the finding of guilt by the jury, the Appellant, through counsel, indicated that he was seeking a finding that he was Not Criminally Responsible by Reason of Mental Disorder. The matter was adjourned while the Appellant was assessed by Dr. Booth at the Royal Ottawa Mental Health Centre.

8The jury resumed in January of 2016 to consider the question of the Appellant's Criminal Responsibility. Following the hearing on that issue, the jury found Mr. Goudreau guilty of First-Degree Murder and he was sentenced to life in prison.

9The accused appealed the finding on the second stage of the trial on the basis that the jury improperly focused on evidence that was irrelevant to the issue of Criminal Responsibility and that the learned trial Judge erred in his response to a question posed by the jury. The accused did not appeal the jury’s finding that he committed the act of murder in the killing of his mother.

10On December 6, 2019, the Ontario Court of Appeal allowed the appeal and set aside the Jury’s verdict of January 28, 2016 and ordered a new trial. The Court directed that the trial be limited to the question of whether the appellant was not criminally responsible by reason of a mental disorder for killing his mother.

The Trial – Phase I

11Lucie Goudreau lived in unit 119 of 90 Woodridge Crescent, a ground floor apartment in the "C" wing of the building that was located across from the building's main office. According to the Property Manager, Andras Vince, Lucie Goudreau (hereinafter referred to as Lucie) lived in the building since 1980 with her husband, Jack Goudreau. Her husband was her main caregiver as her illness progressed requiring her to use a cane, then crutches, then a wheelchair. After Jack Goudreau died in January 2010, Lucie’s son, René Goudreau, moved in with her and assumed the role as her primary caregiver. Mr. Vince testified that, after René Goudreau moved in, he attended the apartment and was shocked to see there was very little furniture in the living room. When he asked her about it, Lucie told him that her son breaks the furniture. She mentioned that, when he gets angry, he doesn’t take his medication and gets carried away and is abusive and breaks things.

12Mr. Vince testified that he inspected Lucie's apartment on February 28th, 2012 at which time a fresh battery was put in the smoke detector and it was confirmed to be in working condition.

13Lucie suffered from Multiple Sclerosis and had a Personal Support Worker (PSW) employed through Carefor visit her home twice a day to assist her from October 2009 through March 2010. Lucie required assistance to be moved from her bed to her wheelchair or from a lying to a sitting position. She also required assistance to be dressed, bathed and have her diaper changed. Lucie was a smoker and had the PSW place her cigarettes and lighter along with phone and television remote on her nightstand within reach each night.

I - The Fire

14On November 27th, 2012 the resident in the apartment directly above Lucie's awoke to hear crackling and a woman's voice coming from outside his window. When he looked out he saw the screen pop out of her window and an orange flash. He called 911 at 2:32:11 AM.

15Andrew Tarzwell was also residing in the apartment building at the time of the fire and heard the fire alarm and saw flames coming out of a window on the first floor. He grabbed his camera and took several photos of the fire that engulfed unit 119 at 2:41 am that morning.

16Fire crews arrived on scene and entered the apartment by opening the locked door with a large pry tool. As they entered, they met with resistance behind the door but because of smoke and lack of light they could not tell immediately what was blocking the door. Once firefighters forced their way in, they discovered that a lounge chair was blocking the door that required significant force to move it out of the way.

17Once the fire was extinguished fire crews continued to search and ventilate the apartment. During the search the deceased was located on a bed in the master bedroom. It was determined that the fire originated in the master bedroom which was significantly damaged by the fire itself and by the firefighters in suppressing the fire.

18Mr. Goudreau was observed in the vestibule outside the building's main lobby standing near the windows where he had a clear line of sight to his apartment and the activity of emergency personnel going on in that area. He was placed in investigative detention at 3:24 AM and subsequently arrested for murder and arson. He had no property on him at the time, no odour of smoke or any noticeable burns or other injuries and was wearing only flipflops on his feet. He had black soot on his hands.

19Surveillance video confirmed Mr. Goudreau was in the lobby vestibule throughout the time the fire was burning. He was observed on the video to be drawing in the condensation on the windows and further investigation revealed he had drawn a number of symbols including a lightning bolt, a dollar sign and a circle with an A+ in it.

2012-year-old Abdeeq Jama was in the lobby with Mr. Goudreau around this time and testified to hearing him talking to himself and saying the phrases "I did it because I had to." And "She doesn't understand me." His 10-year old brother, Gouhad Mohamed, testified that Mr. Goudreau was in the lobby looking at the door of his apartment from the windows. He testified that the accused was mumbling and talking gibberish. He further testified that Mr. Goudreau took out a shoelace and said to them “Tie yourself to the place”. He also overheard him say “I need this money”.

II - Search of Unit 119

21The search of the apartment found very little contents in the apartment including nearly empty kitchen cupboards and limited furniture. Lucie's bedroom was extensively burned. In it was located her mattress and box spring, a chair and a wheelchair. Evidence of smoking was located in the bedroom including numerous cigarette butts, and a lighter was found in the debris near the bed. Also, on the mattress near the deceased was located a cylinder aerosol can which was found to contain a volatile ignitable substance. The second bedroom was empty. A mattress was located in the dining room with some personal effects including binders of documents including insurance policies, headphones, keys to the unit and building, and a baseball bat.

[22] The insurance policies found in the binder were described as follows:

• BMO policy #1 — Life Insured — Lucie Goudreau, Effective date — January 25th, 2011, Beneficiary — Rene Goudreau, Monthly premium - $75, Basic benefit - $17,750, Accident benefit - $87,750
• BMO policy #2 — Life insured — Lucie Goudreau, Effective date — August 15th, 2012, Beneficiary — Rene Goudreau, Monthly premium - $22.99, Accidental death benefit - $250,000
• RBC Insurance Policy — Life insured — Lucie Goudreau, Effective date — March 4th, 2011, Beneficiary — Rene Goudreau, Monthly premium - $93.52, Death benefit payable after 2 years - $25,000, Accidental death benefit - $125,000
• Manulife Insurance Policy — Life insured — Lucie Goudreau, Effective date — March 1st, 2011, Beneficiary — Rene Goudreau, Monthly premium - $65.18, Plan maximum - $20,000, Accident Benefit - $100,000

23The smoke detector was located in its usual place attached to the bracket on the ceiling. It had no battery in it.

24The screen from Lucie's bedroom window was found on the ground outside, popped out of the frame. It had a bend in its frame and center bar and burning to its edges. The screen had a layer of dust or debris on the inside and in that could be seen what appeared to be hand impressions.

III – The Fire Investigation

25Peter Hamilton is a Fire Investigator with the Office of the Fire Marshall and was qualified to give expert testimony in the area of fire scene examination to give opinion in the area of origin and cause of fire. He concluded that the fire originated in the master bedroom and that the specific area of origin was the bottom half or foot of the mattress and box spring that were located under the window in the master bedroom.

26Mr. Hamilton ruled out electrical as a cause of the fire. The only volatile ignitable liquid found on any samples taken was that within the aerosol can found on the bed. In determining the method of ignition of the fire, Mr. Hamilton indicated two possibilities: the intentional application of open flame (the Bic lighter) through human intervention to a fuel source, in this case the mattress and bedding, or smoker materials (i.e. a lit cigarette) smouldering ignition transition to a flaming fire. Neither of these possibilities could be ruled out as a possible cause of the fire. As a smouldering fire takes longer to transition into flame, having a credible timeline would have assisted in choosing between these two theories in this case. He concluded the bedroom window was likely closed during the fire until it failed but allowed for the possibility that it was closed until the fire started and then briefly opened and then closed again.

27In the smouldering cigarette scenario, Mr. Hamilton testified that it would take between 50 to 129 minutes for the smouldering cigarette to transition into a flaming fire, and that during that time there would be a great deal of smoke created. He opined that if this occurred in a room the size of Lucie's, a person in the room for that long with that amount of smoke would not survive because of the carbon monoxide levels. The Crown asked which of the two scenarios would be supported if the jury were to find that there was a scenario where another person was in the room with Lucie and pushed the screen out and exited through the window just at the moment flames became visible, and that person was not burned, did not smell of smoke and not suffering from smoke inhalation. Mr. Hamilton testified that that would only be possible with the first scenario, the application of open flame to the bedding material.

28The Crown called a second fire investigator, Dr. David DeHaan, who was qualified as an expert in fire investigation, specifically origin and cause and additionally in the area of the effect of fire on the human body. He concluded that the origin of the fire was on the mattress in the master bedroom and testified he had concluded the cause of the fire was the application of open flame to the bedding material. He preferred this theory of an intentionally set fire, rejecting the theory of a smouldering cigarette accidentally igniting based on two considerations that he testified allowed him to draw a conclusion Mr. Hamilton had not. First, he testified that a smouldering fire would have produced much higher carbon monoxide levels in the deceased. Second, if Mr. Goudreau had been in the bedroom during a smouldering fire, and Dr. DeHaan concluded for his analysis that he had been, he would have shown significant signs of having been near the burn. He testified it was consistent with the open flame fire theory that he could have set a fire and escaped with no injuries, no odour of smoke, etc.

IV – Other Evidence

29A former friend of Mr. Goudreau's testified that he ran into René in the summer of 2012 near 90 Woodridge Crescent and had a brief conversation with him. In that conversation, he recalled René saying"he’s not sure what he’s going to do when [his mother] starts suffering from MS, because we can put down animals, but we can’t put down people."

30Lucie Goudreau’s family physician, Dr. Paul Ghattas, testified that she was his patient from November 19, 1989 until her death on November 27, 2012. He testified that Lucie had a progressive form of multiple sclerosis and that she was in chronic pain as a result of her disease. According to Dr. Ghattas, Lucie became wheelchair bound in April of 2010. Prior to his death in 2010, her husband Jack brought her to her appointments. He also spoke with her regularly by telephone. After his death, he saw her less often. He last spoke to her on the phone on May 3, 2012 and described her as having a positive attitude with no issues that he noted with respect to her mental capacity.

31The Crown called a delivery man by name of Carl Carson who delivered a new mattress and box spring for Lucie Goudreau on October 6, 2012 that had been purchased for her by her sister, Gisele Langelier. He testified that a gentleman let him in the apartment to deliver the mattress and told him the mattress was for his “sister”. He noted the apartment seemed empty and that was asked to leave the mattress and box spring along the wall in the dining room. Mr. Carlson did not see anyone else in the apartment that day. The gentleman who accepted the delivery signed the delivery slip and gave a tip. Nothing unusual was noted about the individual at the time.

32Lucie's neighbours testified that after her husband died, she stopped coming out to the smoking area where they socialized and they became concerned as there were often longer periods of times when they did not see her at all. Lucie's sister testified that Lucie was not in contact with Mr. Goudreau for some time but that they reconnected after her husband died. When he moved back in with her in 2010, he got rid of all of their furniture, pots and pans, and other household items, leaving the apartment almost bare. Lucie told her sister that she and Mr. Goudreau were struggling financially. René was in charge of buying the food and would often only give her one meal a day. Lucie confided in another neighbour that Mr. Goudreau was emotionally abusive towards her, and on one occasion not long before the fire she called the police to report this. Lucie forgave Mr. Goudreau right after and he continued living with her but told Lucie she could no longer have contact with the friend who had suggested she call the police.

33The preliminary inquiry evidence of Constable Lisa Welsh was played at trial. She testified that she attended a call for service in regards to Lucie Goudreau on April 25, 2010. The call was in relation to a male being out of control. Lucie Goudreau was located in the apartment of her friend, Judith Lachance, and reported that her son had been out of control and throwing things around the apartment that morning. Ms. Goudreau threatened to call police if he did not stop. In retaliation, René Goudreau took her wheelchair and her cell phone away from her leaving her stranded on her bed with the music playing loud so she could not call for help. Lucie was alone and unable to get out of her bed or use the washroom from 9 am until Mr. Goudreau returned at 5 pm that afternoon. Upon his return he asked her if she still wanted to call police and she told him no so he returned her to her wheelchair. As soon as she could she left the apartment and went to her neighbour’s to call police. Cst. Welsh noted that she appeared worried and scared to go back home. Cst. Welsh attended Lucie’s apartment and noted that it was empty of furniture and the cupboards and fridge were almost bare. After speaking with police, Lucie seemed to become concerned about who would take care of her if her son was arrested and refused to press charges. Cst. Welsh took the report and notified the Elder Abuse Section of Ottawa Police.

V – Post-Mortem Examination

34Dr. Milroy was qualified as an expert witness in the area of forensic pathology, including post-mortem examination, cause and mechanism of death and the interpretation of toxicology findings. Dr. Kepron had performed the post-mortem but was unavailable at trial and so Dr. Milroy testified in her place but concluded he agreed with Dr. Kepron's finding, that being that Lucie's cause of death was inhalation of fire fumes.

VI – Financial Records

35The Crown called evidence with respect to the financial records of Lucie Goudreau and René Goudreau. The evidence can be summarized as follows:

36Casey Callaghan testified as an employee with People’s Trust Company. According to Mr. Callaghan, banking records established that René Goudreau was issued a Titanium Plus personal prepaid Visa card on October 4, 2009. The card worked by having funds loaded onto the card by the cardholder. The card could be used for online purchases as well as credit card purchases.

37People’s Trust banking records showed the activity on the card from October 4, 2009 to November 27, 2012. The primary use of the card was payments made to cover monthly insurance premiums to BMO Life Insurance and Manulife Financial. According to the witness, only the cardholder was permitted to load funds onto the card at Money Mart and there were no pre-authorized transactions on the card. All transactions were initiated directly at the request of the cardholder. Transaction records showed money being loaded onto the card at Money Mart each month prior to the Insurance premium payments being taken out. These transactions were done directly by the cardholder, René Goudreau.

38Richard Demers testified as an employee with Scotiabank with respect to the bank records held by Scotiabank for Lucie Goudreau and René Goudreau. Lucie Goudreau and René Goudreau had a joint account with Scotiabank and each had their own debit card associated to that account. The records showed that Lucie Goudreau’s CPP cheque was deposited monthly into the account. The records also showed monthly cheques written on the account (with the exception of 3 cheques) made out to Minto Properties for rent payment on the apartment at Woodridge Crescent.

39Mr. Demers gave evidence regarding the ATM Transactions on the account from January 2012 through to November of 2012. The records showed that, between January 2012 and November 2012, there was only one transaction made by Lucie Goudreau. All other transactions were made with using René Goudreau’s debit card and showed a pattern of money being deposited by Lucie Goudreau’s CPP cheque then a series of withdrawals that would deplete the money from the account using René Goudreau’s debit card.

40Christian Savage testified as an employee of TD Bank with respect to banking records relating to Lucie Goudreau and René Goudreau from 2010 to 2012. Lucie Goudreau had 1 debit card and René Goudreau had 4 debit cards. With respect to René Goudreau’s account, the activity appeared to be centered on the ODSP cheque going in at the end of the month and most of it being withdrawn the same day. This pattern of deposit and withdrawal was consistent throughout the records.

41With respect to Lucie Goudreau’s accounts, one account showed a $5,000 deposit from Manulife Financial and, in the month following the deposit, the money is withdrawn and the account is closed. Lucie Goudreau had another account which was opened in 2008 that showed a number of expenses being paid out of the account as well as ODSP payments for Lucie Goudreau going into the account. Ms. Goudreau’s account was in an overdraft situation from April of 2010 until her death and an outstanding balance of more than $2,000 on her Visa card from February 2011 until her death. René Goudreau’s account activity shows the balance above zero for the most part although he does appear to be living cheque to cheque each month. In cross-examination it was acknowledged that you cannot identify who is actually using the card only the transaction history for the card.

VII – Insurance Policies

42Mr. Goudreau took out a total of 5 life insurance policies on his mother and on 4 of the policies he paid the monthly premiums on a prepaid Visa gift card. He made a number of phone calls to the insurance companies during the application process where he made inquiries about what was meant by accidental death and what would be required to show a death was accidental in order to benefit on those policies.

43Luciana Rodrigues testified for RBC Life Insurance. She identified the RBC Guaranteed Acceptance Life Insurance Policy held by RBC in the name of Lucile Goudreau effective March 4, 2011. This policy did not require a medical examination and covered Ms. Goudreau for accidental death benefit of $125,000.00. The beneficiary of the policy was René Goudreau. The monthly premium payments of $90.52 were made each month using Mr. Goudreau’s Visa card. René Goudreau made a call on May 15, 2012 to provide the new expiry date for his Visa Card. This call was recorded.

44Anna Bella Ferreira testified for Manulife Financial. She identified the CoverMe Guaranteed Life Insurance Policy held by Manulife Financial in the name of Lucie Goudreau effective March 1, 2011. This policy did not require a medical examination and covered Ms. Goudreau for $20,000.00. The monthly premium payment of $65.18 was paid using a Visa card in the name of René Goudreau. The policy provided that if there was a death by accident in the first 2 years of the policy the payment would be 5 times the policy amount ($100,000.00). René Goudreau made 4 calls to Manulife Financial which were recorded. Two calls were made on January 31, 2011, one call on March 29, 2011 and one call on May 15, 2011.

45Radheeka Davie testified for BMO insurance. She identified the 3 life insurance policies held by BMO Insurance in the name of Lucie Goudreau.

46The first policy was a Guaranteed-Life Plus insurance policy effective January 25, 2011. The pay out for accidental death was $87,750.00 and René Goudreau was the beneficiary. The monthly premium payment of $75.00 was paid until December 2012. The second policy was effective August 20, 2011. The payout for accidental death benefit is $250,000.00 and the beneficiary was René Goudreau. The monthly premium payment of $22.99 was to be paid by Visa but the first payment attempted by BMO on the Visa account had insufficient funds and the policy lapsed. The third policy was August 15, 2012. The pay out for accident death benefit was $250, 000.00 and the beneficiary was René Goudreau. The monthly premium payment of $22.99 was paid monthly by Mr. Goudreau’s Visa every month until December 2012. René Goudreau made 9 calls to BMO insurance which were recorded.

VIII - Verdict

47The defence did not call any evidence at the first phase of the trial. After a day of deliberation, the jury returned a verdict of guilty of first-degree murder. The defence then disclosed that they wished to call evidence regarding Criminal Responsibility. The trial reconvened 3 months later to hear evidence on that issue.

THE TRIAL – PHASE II: Criminal Responsibility

48When the trial resumed Dr. Bradley Booth testified regarding an assessment for Criminal Responsibility he had conducted with Mr. Goudreau in the intervening months.

49In preparing his report, Dr. Booth reviewed Mr. Goudreau's extensive mental health history including fitness reports done in relation to the present case and a prior Community Treatment Order. The jury was also given some information about a prior NCR finding made against Mr. Goudreau in a case in 2008 and his subsequent involvement with the Ontario Review Board. Dr. Booth recounted that Mr. Goudreau had been hospitalized in the psychiatric department of the Ottawa Civic Hospital in 2007 and diagnosed with Bi-Polar Disorder with psychotic features. Bi-Polar Affective Disorder Type I is a diagnosis that has been consistent throughout his mental health history and one that Dr. Booth endorsed in his evaluation. Mr. Goudreau was under a Community Treatment Order from 2006-2008 and had his mother declared a substitute decision maker in that time as he was deemed incompetent to make treatment decisions.

50In April 2008, Mr. Goudreau was charged with assaulting his father and on June 9th, 2008 he was found Not Criminally Responsible of that offence. On reattending before the ORB Mr. Goudreau was ordered detained in 2008, conditionally discharged in 2009 and discharged absolutely in 2010. The Royal Ottawa Hospital and the Ottawa Police Service were both aware of the allegation of forcible confinement Lucie made against Mr. Goudreau in 2010 but it appears this information was not put before the ORB as part of their assessment of on-going risk in discharging him in 2010.

51Mr. Goudreau was for a time found unfit in relation to the present case. A report was authored by Dr. Mathias of the Royal Ottawa Hospital on December 28th, 2012 following a 30-day fitness assessment noting that Mr. Goudreau was in a manic state upon admission to the hospital and recommended a Treatment Order to make him fit. That Order was ultimately made by the Ontario Court of Justice. After 60 days Mr. Goudreau appeared before the ORB as he was still unfit and there was concern that he may be suffering from schizo-affective disorder. A "keep fit” order was made.

52Dr. Booth concluded that Mr. Goudreau was suffering from a significant mental disorder at the time of the offence and did not believe he was malingering. Dr. Booth concluded that Mr. Goudreau was exhibiting manic and psychotic symptoms at the time of the offence. Regarding the second branch of the NCR test, whether Mr. Goudreau was aware of the nature and consequences of his actions, Dr. Booth did not come to a definitive answer, noting that the ultimate conclusion was of course for the jury to draw. He did however point to factors in the evidence that would weigh in either direction. He noted that the insurance policy evidence would point to a rational motive for his actions, and further referred to the comment made to his friend about putting a person down when they suffer. He noted as well actions Mr. Goudreau had taken that could suggest he had been thinking about committing the murder, such as removing the batteries from the smoke detector but noted this must be considered in the context of someone suffering from psychotic and manic symptoms. He also noted Mr. Goudreau did have a history of violence but noted this was apparently limited to past occasions of mania. On the other hand he noted there was available evidence to suggest that someone in that mental state would have a very difficult time weighing right and wrong and expected outcomes of their actions. Mr. Goudreau appeared to be having delusions and auditory hallucinations. He noted that planning and deliberation is very difficult in a manic state. Mr. Goudreau was displaying a number of disorganized and non-rational behaviours at the time making it difficult to distill a rational motive for the fire.

53In cross-examination Dr. Booth discussed further the evidence possibly supporting rational motives underlying the setting of the fire which much undercut a finding of NCR. He referred to the applications for, payments for and phone calls about the insurance policies as supporting a rational motive of financially gaining from Lucie's death. He agreed that, if there was evidence of animus that could also be a rational motive, as could the burden of being a caretaker. Ultimately, he was steadfast that he was not able to come to a conclusion, stating that he had no reasonable degree of medical certainty that NCR either was made out, or was not established here. He simply could not give an opinion.

54The Crown called three brief witnesses during the second phase of the trial to illustrate Mr. Goudreau's capacity for organized thinking and planning at the relevant time period before the fire. First, evidence was led that on April 11th, 2012 Mr. Goudreau took and passed the road test to receive his full G class driver's license. Lucie's dentist was also called as a witness to describe how Mr. Goudreau brought his mother to three appointments in the months leading up to her death on July 26th, September 26th and October 5th, 2012 and that his demeanour was normal and unremarkable during those visits. Finally, evidence was led that Mr. Goudreau attended a Service Ontario office on September 10th, 2012 and renewed his health card.

Issue #1

Was the accused suffering from a mental disorder at the time that rendered him incapable of appreciating the nature and quality of his act or of knowing that it was wrong?

Legal Test

55Section 16 (1), (2) and (3) of the Criminal Code of Canada state 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.

56To summarize the elements of the section 16 defence in this case is that Mr. Goudreau must prove on a balance of probabilities the following:

(1) that he was suffering from a mental disorder; and (2) he was incapable of appreciating the nature and quality of the act; OR (3) he was incapable of knowing that it was wrong.

57In R. v. Abby, [1982] 2 SCR 24 Justice Dickson stated as follows:

The requirement, unique to Canada, is that of perception, and ability to perceive the consequences, impact, and results of a physical act. An accused may be aware of the physical character of his actions (i.e., in choking) without necessarily having the capacity to appreciate that, in nature and quality, that act will result in the death of a human being. This is simply a restatement, specific to the defence of insanity, of the principle that mens rea, or intention as to the consequences of an act, is a requisite element of the commission of a crime [Cooper v. The Queen, at pp. 1162-63].

58In Schwartz v. the Queen, [1977] 1 S.C.R. 673, at p. 700 Justice Martland stated as follows:

The Codere case, in my opinion correctly, decided that “nature and quality” dealt with the physical character of the act. If, therefore, a person who has committed a crime did not, by reason of disease of the mind, know what he was doing, he is not to be convicted, because it really was not his act.

59In R. v. Chaulk, [1990] 3 SCR 1303 the Supreme Court affirmed that the focus must be on capacity to know that the specific act committed was wrong, and not merely on a general capacity to distinguish right from wrong. At p.1354 the court stated as follows:

… The principal issue in this regard is the capacity of the accused person to know that a particular act or omission is wrong. As such, to ask simply what is the meaning of the word “wrong”, for the purposes of section 16 (2) is to frame the question too narrowly. To paraphrase the words of the House of Lords in M’Naghten’s Case, the courts must determine in any particular case whether an accused was rendered incapable, by the fact of his mental disorder, of knowing that the act committed was one that he ought not have done.

60Viewed from this perspective, it is plain to me that the term “wrong” as used in S 16(2) must mean more than simply “legally wrong”. In considering the capacity of a person to know whether an act is one that he ought or ought not to do, the inquiry cannot terminate with the discovery that the accused knew that the act was contrary to the formal law. A person may well be aware that an act is contrary to law but, by reason of “natural imbecility” or disease of the mind, is at the same time incapable of knowing that the act is morally wrong in the circumstances according to the moral standards of society. This would be the case, for example, if the person suffered from the disease of the mind to such a degree as to know that it is legally wrong to kill but, as described by Dixon, J. in Schwartz, kills ”in the believe that it is in response to a divine order and therefore not morally wrong” (p. 678).

61In R. v. Oommen, [1994] 2 SCR 507, at page 518 Justice McLachlin described the inquiry into the capacity of the accused to know right from wrong as follows:

The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not. The inability to make a rational choice may result from a variety of mental dysfunctions; as the following passages indicate these include at a minimum the states to which psychiatrist testified in this case-- delusions which make the accused perceive an act which is wrong as right or justifiable, and a disordered condition of the mind which deprives accused of the ability to rationally evaluate what he is doing.

Analysis

62I have reviewed the evidence heard in the previous trial filed by the Crown and the defence. I have also considered the evidence presented in this trial which included the oral evidence of Dr. Booth and Dr. Ramshaw and their written expert reports, the video evidence showing the accused’s behaviour in the lobby of the apartment building immediately after the fire, the intake video of the accused at the police station, the video showing the accused’s behaviour in the cell block, and the video of the accused’s behaviour during his interview with Detective Kinnear. Finally, the phone calls were played of the accused contacting the insurance companies and asking detailed questions about obtaining and collecting the accidental life insurance benefits on his mother’s life. In addition, I have considered the photographs of the apartment after the fire occurred.

The Psychiatrists’ Evidence

63Both Dr. Booth and Dr. Ramshaw examined and conducted an assessment of the accused. Dr. Booth completed his assessment in 2015 and Dr. Ramshaw conducted her assessment in 2020. Both psychiatrists gave their opinion that the accused was suffering from a mental disorder at the time of the offence. Both psychiatrists diagnosed Mr. Goudreau as suffering from a bipolar disorder, type I, severe manic, with psychotic symptoms, together with some anti-social personality disorder traits. Based on the evidence of the two psychiatrists and the fact that this issue was not contested by the Crown, I find that the accused has satisfied me on a balance of probabilities that he was suffering from a mental disorder at the time he killed his mother by setting fire to her bed.

64Dr. Booth was called by the defence but was unable to provide an opinion on whether Mr. Goudreau appreciated the nature and quality of his acts or whether he knew that killing his mother by setting fire to her bed was wrong. Dr. Booth elected to outline the evidence on both sides of the issue instead of providing his opinion.

65Dr. Ramshah was called by the Crown and provided her opinion that Mr. Goudreau was likely capable of appreciating the nature and quality of his act when committing the offence and in her opinion it was more likely than not that he was aware of the wrongfulness when he set fire to his mother’s bed.

Video Evidence

66The video of the accused in the lobby of the apartment building immediately after the fire, does not show Mr. Goudreau acting in an agitated manner. In fact, he wasn’t noticed for about an hour by the emergency responders. While in the lobby he drew some symbols on the condensation on the lobby windows including a lightning bolt, a dollar sign, and a circle with a A+ in its centre. The accused also had some string or shoelaces that he was playing with. One of the young boys, Gouhad heard him say that they should “tie themselves to the place” and heard him say “I needed this money”. Twelve-year-old Abdeek heard him say “I did it because I had to” and “she doesn’t understand me”.

67In the intake video at the police station the accused did not act in an overly agitated manner and was able to accurately provide the information requested, such as his name and birthdate, etc.

68The video of the accused in the cellblock, which commenced approximately three hours after the fire, showed the accused acting in a bizarre manner. He spent a large part of the time making chopping motions with his hands and appeared to be talking to someone who was not there, he undressed several times and placed a toilet roll on his penis at one point. He also drank a box of juice and ate a sandwich. His bizarre behaviour continued for about 10 hours with a short time spent sleeping.

69The video of the interview between the accused and Detective Kinnear showed the accused acting in a distracted and agitated manner on many occasions. At one point he was practising his karate moves and lightly struck the detective. He asked for some water but when the detective left the interview room, the accused piled up the furniture and threw at least half of the water on the furniture. However, during the interview, the accused did have some periods of lucidity and understood that his mother was dead. He also avoided questions about what happened to his mother after he started the fire.

NCR Finding in 2008

70In 2008 the accused was found not criminally responsible for assaulting his father in his apartment. Mr. Goudreau was treated by Dr. Kunjukrishnan following his release by the Ontario Review Board after he received an absolute discharge in 2010. Dr. Kunjukrishnan’s medical notes indicate that the accused was stable, he was seeing him regularly and he was taking his medications following his release into the community. The accused was stable from 2010 until April 2012 according to Dr. Kunjukrishnan’s medical notes. The accused moved in with his mother to care for her on March 31, 2010 following his father’s death in February of 2010. On April 10, 2012 Mr. Goudreau phoned Dr. Kunjukrishnan’s office and cancelled his appointment stating that he no longer required any services and was seeing his family physician.

71The accused was solely responsible for his mother’s care because she was unable to move herself from her wheelchair to her bed or from her bed to her wheelchair without his assistance.

72There was evidence that the accused acted in an abusive manner to his mother while he was mentally stable by referring to her as “MS retarded”, failing to provide her with proper meals as there was no food in the apartment and hardly any furniture. He also limited his mother’s contact with her friends, and at one point when she called the police, he removed her wheelchair and cell phone, turned up the music, and left her in her bed from 9:00 a.m. to 5:00 PM.

73In the summer of 2012, the accused the told a friend “we can put down animals but we can’t put down the people”.

Insurance Policies

74On January 17, 2011 the accused made the first of several phone calls to BMO insurance inquiring about applying for an accidental life insurance policy on his mother’s life where he was the beneficiary. He made six phone calls in January and February 2011 inquiring about how to make sure the payments were made on time, about the definition of accidental death, inquiring about what would be required to show that the death was accidental and asked other questions about collecting on the insurance policy.

75He purchased five accidental life insurance policies on his mother’s life, four (4) of which were in place at the time of his mother’s death. The first BMO insurance policy had an accidental death benefit of $87,750, the Manulife Financial life insurance policy had an accidental death benefit of $100,000, the RBC insurance policy had an accidental death benefit of $125,000, and the BMO life insurance policy had an accidental death benefit of $250,000. The last policy was taken out on August 15, 2012. The total insurance benefits payable to Mr. Goudreau if his mother died by accident was $562,750.

76The accused made 66 monthly payments on the insurance policies with different amounts being paid for each policy at different times during each month. The accused made all of the payments when due to each of the four insurance companies, commencing March 1 of 2011 until November 27, 2012, the date of the fire. Mr. Goudreau made the last two monthly payments on November 7 and on November 17, of 2012 shortly before the fire.

77To make these monthly payments the accused used a credit card without any credit. He had to upload cash onto the credit card at Money Mart from his or his mother’s bank account each month to ensure that there was enough money on the card to meet the insurance payments. He last uploaded cash to his credit card for this purpose on November 14 of 2012 which was very close to the time of the fire. The purchase of four accidental life insurance policies and making over 60 monthly payments required a high degree of planning and indicated that the accused was capable of acting rationally and managing his financial affairs during that time period.

78During the phone calls to the insurance companies, inquiring about the accidental death benefits, the accused acted in a rational manner and there was no evidence of mania or delusions.

79The accused also took several rational actions in the three months before the fire. He renewed his driver’s license and his health card and he took his mother to three dental appointments in the summer and fall of 2012. The dentist testified that the accused’s demeanour was normal during these visits, the last one being on October 5, 2012.

80Dr. Booth outlined the evidence supporting a finding that Mr. Goudreau appreciated the nature and quality of his actions and knew the wrongfulness of his actions as follows:

a) Mr. Goudreau appears to have planned to do harm to his mother in advance, based on buying multiple insurance policies and clarifying specifics of the policy around accidental death when he was well; b) Mr. Goudreau had expressed the idea that it may be appropriate to “put down” his mother if she was suffering; c) Mr. Goudreau spoke immediately after the offence of getting a monetary benefit from his mother’s death; d) Mr. Goudreau appears to have taken steps to increase the likelihood of harm to his mother (taking the battery from the smoke detector and blocking the door with a chair) while taking steps to minimize harm to himself (planning of escape, avoiding any burns); e) Mr. Goudreau denied the index offences to police and to him; f) Mr. Goudreau may have felt a burden caring for his mother; g) There is some evidence that Mr. Goudreau had a negative relationship with his mother in which he was emotionally abusive and would withhold things from her; h) Mr. Goudreau has a history of violence including against his father and a history of possible “forcible confinement” regarding his mother.

81Dr. Booth also outlined the evidence that supported a finding that Mr. Goudreau did not appreciate the nature and quality of his actions and did not know the wrongfulness of his actions including:

a) Mr. Goudreau’s mental state was very disrupted by mental illness at the time of the offences, making planned and deliberate behaviour difficult; b) Mr. Goudreau was in a severely ill mental state at the time of the offences which would make “rational” decision making it extremely difficult; i. the presence of delusions would have distorted rational perception and thus interfered with rational decision-making; ii. the presence of auditory hallucinations would also distort rational perception and interfere with rational decision-making; iii. Mr. Goudreau was very disorganized and his thinking and behaviour surrounding the time of the offences; c) Mr. Goudreau’s disinhibited mental state would have made it difficult to rationally think through the consequences of his behaviour, and would have impaired his ability to inhibit behaviour that, when well, he would think is wrong; d) Mr. Goudreau had expressed positive feelings about his mother in the past, even when no clear motive to lie and he seemed to “voluntarily” elect to care for her.

82Dr. Ramshaw considered the same factors as Dr. Booth but concluded that Mr. Goudreau was “likely capable of appreciating the nature and quality of the act leading to the index offence”, namely setting fire on his mother’s bed in the middle of the night while she was asleep. Notwithstanding his mental disorder he was able to appreciate that the fire was dangerous to his and his mother’s life because he escaped through the window.

83Dr. Ramshaw weighed the complex factors, as had Dr. Booth, and concluded that in her opinion “on a balance of probabilities he was, more likely than not, aware of the wrongfulness at the time he set the fire on his mother’s bed.”

84This is a complex case as confirmed by the evidence of the two psychiatrists. However, the following factors tip the scales against a finding that the accused met his onus to establish a defence of not criminally responsible by reason of mental disorder:

a) the accused engaged in detailed planning to obtain four (4) accidental life insurance policies on his mother’s life over a lengthy period of time of almost 2 years before the fire. Mr. Goudreau executed his plan to obtain the accidental life insurance when he was mentally stable. He had formed the intent to cause his mother’s death for a lengthy period of time before the fire. and to make it appear to be an accident in order to benefit financially; b) the accused spoke very rationally on the telephone calls with the insurance companies and made detailed inquiries about the accidental death benefits and what was required in order to collect on the policies; c) prior to the fire, the accused acted in a rational manner by uploading money onto his credit card over 50 times, with the last time being on November 14, 2011, 13 days before the fire. The accused was also able to make over 60 monthly payments on the four different life insurance policies, which had to be made on different days of each month. This demonstrates an ability to act rationally to execute his plan. d) the bank records show that the accused and his mother were struggling financially; e) the accused had behaved in an abusive manner towards his mother prior to the fire, he referred to her as “MS retarded”, he referred to putting people down who were suffering, he punished her by removing her wheelchair and her cell phone for a lengthy period of time because she had called the police who attended their apartment, he failed to provide adequate food to her giving her only one meal a day and he had removed or destroyed most of the furniture; f) in the period before the fire, the accused had been able to act in a rational and normal manner by renewing his driver’s license and health card, by taking his mother to three dental appointments, and making all of the monthly insurance payments; g) the accused made further plans and took the additional steps to ensure that his mother’s death would occur by placing a large chair to block the door, by removing the battery from the smoke detector, by setting the fire at 2:30 AM, and by adding additional materials to the fire to make it grow; h) I accept Dr. Ramhaw’s evidence that the accused was able to understand that setting a fire on his mother’s bed when she was sleeping was extremely dangerous and would likely cause her death, because the accused knew that his mother could not get out of her bed and he jumped out of the window to avoid the danger to his life; i) the accused made statements in the lobby immediately after the fire indicating that he was aware of the financial consequences of his mother’s death stating that he needed the money; j) the accused was not acting as bizarrely immediately after the fire in the lobby or during the intake interview as he was in the cellblock and during the interview with Detective Kinnear; k) the accused the was motivated to be found NCR because he stated this in his interview with Detective Kinnear; l) the accused engaged in extensive planning to financially benefit from his mother’s accidental death over a period of many months when he was mentally stable and would have known that it was morally wrong to set a fire and cause his mother’s death. I agree with Dr. Ramshah’s opinion that while his mental illness would have disinhibited his behaviour leading to the fire, it did not remove his knowledge that burning his helpless mother to death in her bed was morally wrong.

Disposition

85For the above reasons I find that Mr. Goudreau has not met his burden of proof on a balance of probabilities to show that he did not appreciate the nature and quality of his acts or that he did not know that it was wrong to start a fire on his mother’s bed and cause her death. I therefore find the accused guilty of first-degree murder.