Court File and Parties

COURT FILE NO.: CRIMJ(P) 197/22 DATE: 2023 05 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING J. Goulin, Counsel for the Crown

– and –

TIMOTHY NORMAN CORMIER A. Wine, s. 486.3 counsel A. E. Stastny, amicus curiae

HEARD: March 6, 13, 14, 15, 17, 20, 21, and 22, 2023

REASONS FOR JUDGMENT

F. DAWSON J.

[1] Timothy Cormier is charged with attempted murder and aggravated assault in relation to the stabbing of his sister, Rita Mercer, in Mississauga on November 21, 2018. At the commencement of his trial Mr. Cormier entered a plea of guilty to aggravated assault and his trial proceeded on the count of attempted murder.

[2] Mr. Cormier is without counsel. However, he was assisted indirectly at the trial by Andrew Stastny who was previously appointed by Durno J. as amicus curiae. The order appointing Mr. Stastny has generous provisions allowing Mr. Stastny to participate in the trial to assist the court. Mr. Stastny examined most of the witnesses and made submissions at Mr. Cormier's request. In addition, Aaron Wine was appointed pursuant to s. 486.3 of the Criminal Code as counsel to conduct the cross-examination of the complainant on Mr. Cormier's behalf.

[3] Mr. Cormier is currently 64 years of age. He was diagnosed with epilepsy at the age of three years. He underwent a neurosurgical procedure in 2004 when he was 44 years old to assist in controlling his epileptic seizures. That procedure has been described both as a left temporal lobotomy and a left temporal lobectomy. That surgery put an end to Mr. Cormier's seizures. However, there is evidence that the surgery and the impact of many prior epileptic seizures have left Mr. Cormier with certain cognitive deficits. There is also evidence that he suffers from specific delusions in relation to his sister, although that is not entirely clear.

[4] Mr. Cormier does not raise a defence of not criminally responsible due to mental disorder pursuant to s. 16 of the Criminal Code. Rather, he submits that mental health considerations falling short of establishing that defence contribute to a reasonable doubt about whether he had the required subjective specific intent to kill his sister at the time he stabbed her. This is the only contested issue in this case.

The Stabbing

[5] Rita Mercer is currently 65 years of age. The accused is her younger brother. She described how she and her brother grew up together in the same household until she was about 16 or 17 years of age. Ms. Mercer described her brother as being "somewhat cognitively delayed." She described how over the years she had assisted her brother financially by giving him money from time to time. He would often ask her for money when they saw each other.

[6] On November 21, 2018 Ms. Mercer was at home. She had been laid off from her employment. Her husband was at work. Ms. Mercer testified that at about 4:00 p.m. her doorbell rang. It was her brother Tim. She was not expecting him. She had last seen him at a family gathering on April 26, 2018. She said she believed Mr. Cormier was living with their grandmother in Hamilton at the time.

[7] When Ms. Mercer opened the door she saw the accused's car parked across the street. She commented to Mr. Cormier that she thought he was not supposed to be driving the car due to incidents where he had failed to pay for gas. Mr. Cormier told the police that was one of the things Ms. Mercer said that angered him. Ms. Mercer testified that she could tell something was not quite right with her brother. She said he usually wants money. She did not want to let him into the house. As an excuse she said she turned to look at her stove and told him that she had to get started on her husband's dinner. She testified that when she turned her back to Mr. Cormier, he entered her home. She had noticed that Mr. Cormier had a bag in his hand, like a flat gift bag, and she thought he might have a Christmas card in it for her.

[8] Ms. Mercer testified that a second later Mr. Cormier had his hand in the air holding what she thought in the moment was a steel bar. It was in fact a large butcher knife which Mr. Cormier brought with him in the bag.

[9] Ms. Mercer testified that Mr. Cormier brought the knife down onto her head. She was struck with considerable force on the left side of her skull. She said she was rendered semiconscious and described being in a "dream like state". She could feel blood running down her head and neck area. She then noticed that she had a large cut on one hand between her thumb and her first finger. She said she was stabbed several times. She then made a dash for the open front door. She tried to scream for help. However, she said Mr. Cormier grabbed her arm hard and tried to keep her inside the house. Her screams did not seem loud enough. She could not break loose. At that point her brother stabbed her twice in the abdomen. She said Mr. Cormier did not speak during the attack. Ms. Mercer testified that her brother then pulled the knife out of her belly. She said she went down to the ground on the stone patio outside her front door. Mr. Cormier went to his car. She said he stopped to look at her and then got into his car and drove away.

[10] Ms. Mercer was able to get to a cordless telephone and call 911. Cst. Amanda Pileggi of the Peel Regional Police (PRP) was dispatched at 3:51 p.m. and arrived at Ms. Mercer’s at 3:54 p.m. Cst. Pileggi found Ms. Mercer kneeling in a pool of blood at the front door to her home. An ambulance arrived soon after and took Ms. Mercer to Sunnybrook Hospital where she underwent emergency surgery.

[11] Dr. Frederick Brenneman, a general trauma surgeon, testified that Ms. Mercer had nine to ten stab wounds to her chest, abdomen, head, scalp, and hand. She was originally unstable due to blood loss. Ms. Mercer's most significant injuries were to her abdomen, which had to be opened to stop the bleeding. One abdominal stab wound was just centimetres from Ms. Mercer's aorta. Had it been hit she would not have made it to the hospital alive. Blood transfusions and the surgery stabilized her.

[12] In cross-examination by s. 486.3 counsel, Ms. Mercer said that her brother was always easily angered. She said family members could never tell what would set him off. She said she could not think of any reason why her brother would attack her. However, she said Mr. Cormier had unusual ways of thinking. He would take things "in a different way and it angered him." She agreed that she told the police that her brother "looked lost" at the time of the attack. He had an unusual stare and looked "different" or "confused". She said her brother knew where he was, but his eyes were not happy.

[13] Other evidence leads to the following findings of fact. Following the stabbing the accused drove to a Mississauga coin operated self car wash. He discarded his bloodstained jeans and sweater in a trash can there and discarded the knife used to stab Ms. Mercer by submerging it in water under a grate in a drain trough in one of the wash bays.

[14] The accused then drove to the Ottawa area and spent the night in his vehicle. The following day, November 22, 2018, he drove back to Hamilton where he was arrested by the Hamilton police at his residence at 8:52 p.m. He was turned over to the PRP later that evening.

[15] Mr. Cormier was interviewed on video by officers of the PRP. The interview commenced just before midnight and concluded at approximately 3:00 a.m. on November 23, 2018. I ruled the statement voluntary and it forms part of the Crown's case. In that statement Mr. Cormier admitted to stabbing his sister to "make her suffer" but he denied that he intended to kill her. He said he was angry with his sister for things she said to him upon his arrival at her home and because he believed she had been impregnated years before by their father and had an abortion.

[16] Mr. Cormier lied to the police repeatedly during his police interview. For a considerable time he asserted that it was his sister who first produced the knife and tried to stab him with it. He said he was able to kick the knife out of her hand and then stabbed her in self-defence, perhaps two to three times. Mr. Cormier told the police that he then drove to a bus station, took a bus to Hamilton, then took a train or bus back to Toronto and a bus to Ottawa, where he stayed overnight in a motel before taking a bus back to Hamilton. He told the police he brought the gift bag with him as he had no use for it and intended to give it to his sister. All these things were untrue.

[17] As Mr. Cormier became worried during the interview that the police were collecting video surveillance, he began to change his story. He ultimately admitted that he brought the knife to his sister's home from his residence in Hamilton and that he stabbed her with it because he was angry over what she said to him when he arrived and because she had been impregnated by their father years before and had an abortion. Significantly, he said he did not approve of abortion, which he considered to be murder.

[18] Mr. Cormier said he wanted to make his sister suffer but that he did not intend to kill her. He also admitted that he drove his car to Ottawa and back to Hamilton the following day. It appears that he may not have wanted to admit that he drove to Ottawa because he drove off from a gas station without paying for gas.

[19] Mr. Cormier eventually told the interviewing officer that he threw his bloodstained green sweater away at a self car wash he drove to after the stabbing. However, he maintained that when he was arrested he was still wearing the blue jeans he had worn at the time of the stabbing. That was untrue. His blue jeans were later found in a trash can at the car wash where his sweater was also found. He also maintained throughout the interview that he could not remember what he did with the knife but thought he had left it at the scene. This was also untrue. As stated above, the knife was found at the car wash submerged in water under a drain grate in one of the wash bays.

[20] Given that Mr. Cormier's pants were discarded at the car wash, this raises the likelihood that he had a change of clothing with him. However, there is no direct evidence of that.

[21] The accused did not to testify. However, he called a forensic psychiatrist, Dr. Jonathan Rootenberg, and a forensic psychologist, Dr. Percy Wright, to give evidence. Dr. Rootenberg and Dr. Wright were two of the professionals who performed a court ordered assessment on Mr. Cormier to determine whether, from a psychiatric perspective, a defence of not criminally responsible on account of mental disorder was available to him pursuant to s. 16 of the Criminal Code. That assessment was performed at the Centre for Addiction and Mental Health (CAMH). Dr. Rootenberg was ultimately responsible for providing that opinion, which was that the defence was not available. Dr. Rootenberg concluded in his comprehensive 32-page report, dated April 26, 2020, that Mr. Cormier "was able to appreciate the nature and quality of his actions, and was also likely able to rationally reflect on whether his behaviour was wrong during the material time.”

Elements of Attempted Murder

[22] To obtain a conviction Crown counsel must prove beyond a reasonable doubt that Mr. Cormier intended to kill Ms. Mercer and that he engaged in conduct going beyond mere preparation to give effect to his intention: R. v. Boone, 2019 ONCA 652, at para. 49. The actus reus component of attempted murder is not in dispute. Mr. Cormier has pleaded guilty to aggravated assault in connection with his admitted attack on his sister.

[23] The mental component of attempted murder requires proof of a specific intent to kill. Proof that the accused caused bodily harm to Ms. Mercer that he knew was likely to cause her death while being reckless whether she died or not, which is one of the intents that will sustain a conviction for murder where the victim dies, is not sufficient for a conviction for attempted murder. Only a subjective specific intent to kill will do: R. v. Ancio, [1984] 1 S.C.R. 225, at pp. 248-251.

[24] In Boone, at para. 52, Doherty J.A. clarified that it can be said that a person has the intent to kill when their purpose is to kill or where they decide "to carry out some purpose in the knowledge that killing is virtually certain to result, although the killing is neither the ultimate purpose in acting, nor the means chosen to achieve the desired purpose, and may even be deeply regretted."

[25] In this case there is evidence that the accused has cognitive deficits associated with a history of epileptic seizures and the effects of surgical intervention to stop them. There is also evidence that he had a long-term fixed belief that his sister was impregnated by their father and had an abortion as a result. A defence of not criminally responsible due to mental disorder is not raised and the expert evidence is that it is not available.

[26] I instruct myself that evidence of mental illness or mental disorder falling short of a defence of not criminally responsible under s. 16 of the Criminal Code, must be considered together with all the other evidence in determining whether the requisite intent for attempted murder is established beyond a reasonable doubt: R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A.), at para. 5. The accused's whole personality and background, including evidence of mental disorder, is relevant: R. v. Baltzer, [1974] N.S.J. No. 282 (C.A.), at para. 77.

Evidence Regarding the Accused's Background and Mental Health

[27] Evidence regarding Mr. Cormier's mental health at the time of his attack on his sister was introduced through the testimony of Dr. Rootenberg and Dr. Wright. Reports each of them prepared were filed as exhibits on consent. It was agreed that the reports could be used in the same manner as the testimonial evidence of the doctors. A psychosocial assessment report prepared by Dr. B. Chan, which was relied upon by Dr. Rootenberg, was also filed as an exhibit on consent. I will summarize some of Mr. Cormier's background based on this evidence.

[28] Mr. Cormier was born and raised in Toronto. He always lived with his mother until she died in 2003. He has only one sibling, Ms. Mercer, the victim. She is about one year older. The accused's father drank and abused Mr. Cormier and his mother. His mother eventually left his father, taking the children with her.

[29] Mr. Cormier was diagnosed with epilepsy at age three. He had frequent seizures. He failed grade one and left school after grade eight because he was teased about his epilepsy. He got into some fights at school.

[30] Mr. Cormier worked off and on at Molson's Brewery between the ages of 18 and 36. He had other jobs at another brewery, at Wrigley's Gum and Pepsi Cola. In 2003 or 2004 at the age of 44 he had brain surgery, described as a left temporal lobectomy. That stopped his seizures. However, it left him with routine migraine headaches for which he takes medication. He did not work after that surgery and supports himself by means of government disability payments. While Mr. Cormier described himself as calm, others described him as quick to anger for unanticipated reasons.

[31] Mr. Cormier has no history of involvement with psychiatrists or the mental health system prior to being arrested in connection with this case. When he was assessed for fitness in 2019 it was thought that he might have an underlying delusional disorder due to his fixed belief that his sister had been impregnated by his father and had an abortion. Mr. Cormier has no history of substance abuse, head injuries or loss of consciousness.

[32] Both Dr. Rootenberg and Dr. Wright interviewed Mr. Cormier regarding the incident giving rise to the charges. During those interviews Mr. Cormier related the following details. On the morning of November 21, 2018 he drove from his residence in Hamilton to see his family doctor in Toronto to have his blood pressure checked. He was having a migraine headache but did not tell his doctor. After his doctor’s appointment he went to McDonald’s and had something to eat. He then spent a few hours in a coffee shop. Mr. Cormier disclosed that he was thinking about his sister becoming impregnated by his father and having an abortion. That angered him. He said at one point that his father did not force himself on his sister. He was thinking about all the hurt this had caused to himself and his mother. He said he wanted to make his sister suffer. He advised that he may have driven back to Hamilton to get the knife used in the stabbing. He said he got the large knife out of a drawer in his residence and put it in the gift bag, which was later found empty at the scene.

[33] Mr. Cormier related that he drove to his sister’s home in Mississauga in the afternoon. When he arrived he took the bag containing the knife with him to her door. There was nothing except the knife in the bag. After answering the door his sister said things to him which upset him and made him angry. He was also thinking about his sister being impregnated by their father and getting an abortion.

[34] Mr. Cormier’s account of what happened at the door, as related to the doctors and their assistants, differs somewhat from Ms. Mercer’s account. Mr. Cormier said that soon after arriving at the door and speaking with his sister, he started to leave because his sister would not give him the money which he asked for. He said he returned to the door when she called him back. Nothing turns on this inconsistency in the evidence.

[35] Mr. Cormier said when he came back to the door his sister asked him what was in the bag. He asked her if she wanted to see it. He said at that point he took out the knife and “put it in her”. Mr. Cormier said he was not quite sure where he stabbed his sister but added, “just not towards the heart”. Mr. Cormier told Dr. Rootenberg, as he told the police, that he thought he left the knife at the scene. That was untrue. It is difficult to imagine that Mr. Cormier would not have recalled lifting the drainage grate to dispose of the knife at the car wash when he remembered disposing of his sweater at that location.

[36] When speaking to both Dr. Rootenberg and Dr. Wright Mr. Cormier attributed his attack on his sister to forgetting to take his migraine medication the previous evening. Both doctors testified that there was no merit in that explanation.

[37] In his report Dr. Rootenberg noted that Mr. Cormier asserted that he did not want to kill his sister and that, therefore, he consciously avoided stabbing her anywhere near the heart. I observe that the surgeon who testified described stabs to Ms. Mercer’s chest and that photographs of Ms. Mercer taken by the police after her release from the hospital clearly show wounds to her left breast and to the left side of her chest. This evidence stands in contradiction to Mr. Cormier’s assertions.

[38] In terms of diagnostic aspects of their assessment of Mr. Cormier, both Dr. Rootenberg and Dr. Wright thought that Mr. Cormier’s fixed and long-term belief that his sister had been impregnated by their father and had an abortion was a specific delusion. Based on this, both doctors opined that Mr. Cormier likely had a delusional disorder. In reaching this diagnosis both doctors assumed that Mr. Cormier’s fixed belief was not true.

[39] I observe, however, that Ms. Mercer testified that she did have an abortion when she was 24 years old. However, she was not impregnated by her father. She thought the accused may have heard her talking to her mother about her circumstances. I also observe that in his statement to the police, Mr. Cormier said that his mother told him before she died that his sister had been impregnated by her father. When these matters were put to Dr. Rootenberg, he acknowledged that it raised interesting questions about his diagnosis. Both Dr. Rootenberg and Dr. Wright also explained that specific delusions may be based on a misinterpretation of events and be partially based on facts. Dr. Wright thought that might be the case here, having regard to Mr. Cormier’s cognitive deficits, which I will get to in a moment.

[40] In my view, whether Mr. Cormier’s fixed long-term belief regarding his sister’s impregnation and abortion is indicative of a delusional disorder or not is of little real significance to the outcome of the trial. Dr. Rootenberg concluded that the delusional disorder considered in combination with Mr. Cormier’s history of epilepsy and brain surgery did not prevent him from appreciating the nature and quality of his actions or of knowing that they were wrong. That conclusion is obviously not determinative of whether Mr. Cormier formed the intent to kill his sister, but it is clearly relevant to that issue.

[41] Dr. Rootenberg testified that there was nothing else he would have done during his assessment of Mr. Cormier had he also been asked to provide his opinion about Mr. Cormier’s capacity to form an intent to kill. When I asked Dr. Rootenberg whether, assuming his diagnosis of delusional disorder was correct, Mr. Cormier had the capacity to form the specific intent to kill, Dr. Rootenberg said that he thought Mr. Cormier did have that capacity. However, Dr. Rootenberg demurred on the question of whether he thought Mr. Cormier had formed such an intent, which is the critical question for me to determine.

[42] Dr. Wright described the various psychological tests he had Mr. Cormier complete. He explained that there were no signs that Mr. Cormier was trying to falsely present himself as mentally ill or as having greater deficits than he does. On the contrary, Mr. Cormier tried to present himself as being more capable than the testing suggests he is. Without getting into the details, the testing showed difficulties which Dr. Wright associated with the long-term impact of epileptic seizures on Mr. Cormier’s brain in combination with the effects of the surgery Mr. Cormier had to eliminate his seizures. Overall, Mr. Cormier has certain deficits with respect to organizing his problem-solving skills and he is very prone to making the same mistakes repeatedly despite being repeatedly corrected when he makes those mistakes. However, he is good at appearing less impaired than he is. He has difficulty incorporating new memories. In terms of cognitive ability, Mr. Cormier’s full-scale score on the WAIS-IV adult intelligence test battery fell in the extremely low range. Overall, his scores on such testing were described as very low. However, Dr. Wright said that Mr. Cormier’s scores were not so low as to qualify him for a diagnosis of intellectual disability.

[43] Dr. Wright also testified that the surgery to Mr. Cormier’s left temporal lobe impacted both memory and emotional control. He testified that Mr. Cormier would have trouble keeping his anger and emotions in check and in not acting impulsively. Towards the conclusion of his report, at p. 14, Dr. Wright wrote:

Clearly the historical belief of wrongdoing by the victim (i.e., that she had become pregnant by their father and had an abortion) would not render him unable to know his actions were wrong, but his neuropsychological impairment would impair his ability to cope with and resolve this belief which needs to be factored into how clinicians and the court view his level of intention in these offences.

[44] Dr. Wright was cross-examined by Crown counsel on this statement in his report in terms of whether it impacted on the distinction between having an intent to injure and an intent to kill. Dr. Wright replied to the effect that he could not be that specific. However, he said the accused’s thought processes would be “pulled around by what was happening around him” and that the accused would not be able to stop himself or pull himself away from his behaviour.

[45] When I asked Dr. Wright further questions about this statement in his report, he responded that he was not likely to be able to provide much further help to the court. He agreed that his statement meant that the court should keep Mr. Cormier’s cognitive difficulties in mind in drawing inferences from the surrounding circumstances. I have made every effort to do so.

Analysis

[46] While the accused did not testify, his denial of an intention to kill his sister is in evidence through his police statement, which forms part of the Crown’s case. In his police statement, as in his statements to the doctors who assessed him, he said he wanted his sister to suffer but he did not intend to kill her.

[47] The statements Mr. Cormier made in the medical interviews on this issue contain slightly more detail than those in his police interview. I observe that the statements Mr. Cormier made to the doctors during his court ordered assessment have lost their status as “protected statements” under s. 672.21(2) of the Criminal Code because he chose to introduce and rely upon the doctors reports and those statements in his defence.

[48] To the extent statements by Mr. Cormier came into evidence through the medical evidence tendered in the defence case, beyond serving as a foundation for the opinions of Dr. Rootenberg and Dr. Wright and as admissions against interest, they are otherwise self-serving statements which are not admissible to prove the facts contained in them. That has not been raised as an issue here and both sides have referred to such statements, but I keep this in mind.

[49] Crown counsel argues that aspects of Mr. Cormier’s statements to the medical staff which go somewhat beyond what he said in his police statement, are demonstrably false, and submits that should reflect negatively on my assessment of the credibility and reliability of any exculpatory statements made by Mr. Cormier. It seems to me that is a legitimate submission, particularly but not only, because any opinions expressed by Dr. Rootenberg and Dr. Wright are heavily dependant on the credibility and reliability of Mr. Cormier’s account of his thoughts and actions.

[50] Given the exculpatory nature of parts of Mr. Cormier’s prior statements, I have instructed myself in accordance with the well known three stages of analysis set out in R. v. W.(D.), [1991] 1 S.C.R. 742, at p. 757, as explained in cases such as R. v. D.(B.), 2011 ONCA 51, at para. 114; R. v. Smits, 2012 ONCA 524, at para. 37 and R. v. Brown, 2018 ONCA 481, at paras. 67-69. The issue is whether, having considered all the evidence together, I am satisfied of the guilt of the accused beyond a reasonable doubt. I recognize that evidence favouring the accused, even if not accepted, may raise a reasonable doubt. Even if the evidence favouring the defence is rejected, there can be no conviction unless the evidence which I do accept establishes the accused’s guilt beyond a reasonable doubt.

[51] Turning to the first stage of the W.(D.) test, whether I accept the evidence that Mr. Cormier did not intend to kill his sister, I find that I do not accept that evidence as credible or reliable. Mr. Cormier’s assertion that he did not intend to kill his sister originates from a police interview during which he was untruthful throughout much of the interview regarding core aspects of what happened. For a considerable period during the interview Mr. Cormier maintained that it was his sister who produced the knife, that he kicked it out of her hand and that he only stabbed his sister in self-defence. Whatever Mr. Cormier’s level of cognitive impairment and mental disorder, he was clearly able to fabricate a scenario that would exculpate him. He only withdrew from that in stages, as he came to believe that the police had video surveillance and other evidence which demonstrated the falsity of his story.

[52] I am also of the view that by the end of his police interview Mr. Cormier was still being deceitful. He maintained that when he was arrested he was still wearing the jeans he wore during the stabbing. In fact, he had discarded those jeans at the car wash. A pair of jeans with red stains on them was found under the accused’s green sweater in the same trash can at the car wash. The officer who testified about finding these items was not cross-examined and no evidence was tendered, or submission made, that the recovered jeans are not the accused’s. It seems likely to me that this deception could have only one purpose: to cover up that Mr. Cormier likely had a change of clothes with him when he went to his sister’s house with a large knife concealed in a bag that he had brought from Hamilton.

[53] Furthermore, Mr. Cormier told the interviewing officer and the doctors that he could not remember what he did with the knife and that he thought he left it at the scene of the stabbing. I find that to be patently false. I am unable to accept that Mr. Cormier did not recall disposing of the knife at the car wash. If he recalled putting his sweater in a trash can, he would surely have recalled lifting a sewer grate and submerging the knife in one of the car wash bays. Like possibly having a change of clothes, the large size of the knife was something that might be telling regarding whether he had the intent to kill when he repeatedly stabbed Ms. Mercer. I find he lied to the police and to the doctors when they asked what happened to the knife.

[54] The exculpatory statements the accused made to the medical processionals during his assessment went somewhat further than his statements to the police. The main example is Mr. Cormier’s assertions to the doctors that he was avoiding stabbing Ms. Mercer around her heart as an indication that he only wanted her to suffer and did not intend to kill her. Yet, as I have already mentioned, Ms. Mercer was in fact stabbed in her left breast and left chest area.

[55] The main point of my comments so far is to explain why I do not accept the exculpatory assertions made by Mr. Cormier on the issue of his intent at the time of the stabbing. To the extent my comments so far suggest a view of these actions as post-offence conduct relating to proof of intent, I will address their availability as circumstantial evidence of intent momentarily.

[56] Turning to the second stage of W.(D.), whether the exculpatory evidence raises a reasonable doubt in the context of the evidence as a whole, I find that it does not. Having regard to the other evidence which I accept, I disbelieve the accused’s assertions of lack of intent. As I disbelieve those assertions, in other words I find them to be untruthful statements and I reject them, they cannot raise a reasonable doubt.

[57] I turn first to the psychiatric and psychological evidence. Both Dr. Rootenberg and Dr. Wright were of the view that the accused could appreciate the nature and quality of his actions. In other words, the accused’s cognitive deficits and any delusional disorder he had did not render him unable to realize that stabbing a person nine to ten times in the head, chest and abdomen with a large butcher knife could kill them. Although insufficient on its own it is one factor which contributes to my conclusion in this case. There are other additional factors I rely upon.

[58] There is no doubt that the accused obtained the knife from his residence in Hamilton and put it in a bag to conceal it. Whether he went back to Hamilton to get the knife after ruminating at the coffee shop about his sister’s impregnation and abortion or took it with him when he initially left his home that morning is of limited importance. He clearly obtained and concealed the knife for the purpose of stabbing his sister with it because he had been brooding on his long-term fixed belief concerning her impregnation and abortion. The evidence of Dr. Rootenberg and of Dr. Wright supports that Mr. Cormier would have difficulty pulling himself away from such thoughts, which made Mr. Cormier angry.

[59] I also observe that Mr. Cormier told the police that he considered abortion to be murder. Anger based on such a belief provides a strong motive. The existence of a motive may make it more likely that an accused committed an act and did so intentionally. In my view, the strength and nature of the motive in this case, where the accused volunteered that he considered abortion to be murder, is something which reflects circumstantially on the level of or nature of the intent the accused possessed when he stabbed his sister nine to ten times with such a large knife, aiming as he did so at vital areas of her body. All these circumstances combined suggest the intent went beyond an intent to cause harm and extended to an intent to cause death.

[60] Dr. Rootenberg agreed that the accused engaged in purpose directed conduct. He agreed that the accused himself raised the distinction between an intent to cause his sister harm and an intent to kill. I have found that Mr. Cormier lied concerning some matters relevant to that distinction. Dr. Rootenberg also agreed that Mr. Cormier would understand the consequences of stabbing repeatedly with such a large knife. He and Dr. Wright also both testified to the fixed nature of Mr. Cormier’s belief concerning his sister’s impregnation and abortion. Putting all of this together with the accused’s admission that he was upset by his sister’s impregnation and abortion over a prolonged time and that he considered abortion to be equivalent to murder, I conclude the accused had a motive to kill his sister, not just to make her suffer.

[61] It is clear from the evidence that the accused had a plan. He obtained a large knife and concealed it in a bag which had the appearance of a gift bag. He drove all the way from Hamilton to his sister’s home with the knife concealed in the bag and he brought the knife to his sister’s door so concealed at a time of day when her husband was unlikely to be home. He started to stab Ms. Mercer almost immediately after she answered the door. I accept Rita Mercer’s evidence about how events at the door unfolded.

[62] Significantly, in my view, Mr. Cormier then took steps to dispose of his clothing and the knife. Mr. Stastny submits that this post-offence conduct is of no significance on the issue of proof of intent because it is as likely to be the result of a desire to avoid detection for aggravated assault as it is to a plan to kill. Such a submissions rests on the principles found in cases such as R. v. Arcangioli, [1994] 1 S.C.R. 129 and R. v. White (1996), 108 C.C.C.(3d) 1 (Ont. C.A.), aff’d [1998] 2 S.C.R. 72, regarding when a “no probative value” instruction should be given to a jury.

[63] In my view, this case has features which render the accused’s post-offence conduct relevant to the issue of proof of intent. Here the accused was known to his sister. If his intention was to leave her alive, disposing of his clothing and the weapon after the assault would be of no assistance to him as his sister would be able to identify him as the person who stabbed her. Disposing of his clothing and the weapon after the assault would only serve a purpose if his intention was to kill her or if he believed she was dying after he stabbed her. That he did not render assistance to her after the stabbing is indicative of the former and can be viewed as inconsistent with the latter.

[64] I agree with Crown counsel’s submission that this case is like R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.). That case involved a murder which occurred during the robbery of a gun club. One of the accused was an employee of the club, who was known to the employee killed during the robbery. The Crown alleged that it was always part of the plan that the employee on duty at the time of the robbery would be killed because, otherwise, the accused would be identified. In those circumstances Doherty J.A. concluded that the post-offence conduct of the accused could, when viewed in its entirety, support the inference that the two accused had done exactly what they planned to do, commit the robbery and kill the victim, potentially lending support to the Crown’s contention that the murder itself was planned and deliberate.

[65] In the present case I am of the view that when the post-offence conduct of the accused is considered in its entirety, it lends considerable support to the conclusion that Mr. Cormier intended to kill his sister. Mr. Cormier’s post-offence conduct includes disposal of evidence and lies told about what was and was not disposed of, in circumstances where all of that post-offence conduct provides circumstantial evidence that he had the intent to kill.

[66] Finally, I observe that after Ms. Mercer had already been stabbed several times in the head and chest area, she tried to escape from her home. She screamed for help as she did so. She said she got one foot out the door. If all Mr. Cormier wanted to do was make her suffer, he could have left at that point. Instead, he grabbed Ms. Mercer with a strong grip pulling her towards the inside of the house and stabbed her two more times in the abdomen. These turned out to be her most serious wounds. This level of persistence is some additional evidence of an intent to kill.

[67] For clarity, it is the combination of the various circumstances I have described, considered together with all the other evidence, that leads me to conclude that the guilt of the accused has been established beyond a reasonable doubt. I am satisfied beyond a reasonable doubt that Mr. Cormier had the specific intent to kill his sister. That was his purpose when he stabbed her. In my view, that is the only reasonable inference based on the facts as I have found them to be.

Conclusion

[68] The accused is found guilty of attempted murder.

Justice F. Dawson

Released: May 23, 2023